18 Fla. L. Weekly Supp. 403a
Online Reference: FLWSUPP 1804LOPE
Insurance — Personal injury protection — Coverage — Medical expenses — Lawfully rendered services — 2008 statute that prohibits employment of chiropractic physician as independent contractor by any person that is not entity wholly owned by chiropractic physicians or who is not chiropractic physician and provides that any contract entered into or renewed on or after July 1, 2008, in violation of statute will be void does not bar reimbursement for service rendered by chiropractic physician in clinic owned by chiropractic assistant where assistant has certificate of exemption to own and operate clinic and has not entered into or renewed any contracts on or after July 1, 2008
ASCLEPIUS MEDICAL, INC. a/a/o (Hector Lopez), Plaintiff vs. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 09-2064 CC 26 (02). December 6, 2010. Gladys Perez, Judge.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND GRANTINGPLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on November 30, 2010, for hearing on the parties’ cross motions for summary judgment. The Court, having reviewed the motions and entire Court file, heard arguments of counsel, reviewed relevant legal authority, and otherwise advised in the premises, makes the following findings of fact and conclusions of law:
Findings of Fact:
The material facts in this case are not in dispute. Hector Lopez was involved in a motor vehicle accident. As a result of alleged injuries resulting from the accident, Mr. Lopez sought treatment at Plaintiff’s clinic from August 8, 2008 through November 17, 2008. Mr. Lopez assigned his benefits under Mercury’s policy to the Plaintiff. Defendant failed to pay No-fault benefits within the prescribed period, and Plaintiff instituted this action.
The heart of the parties’ motions for summary judgment, however, involve Miguel Betancourt, the sole owner of Asclepius Medical, the Plaintiff. Mr. Betancourt is a certified chiropractic physician assistant. And, while he performed no services in this case, he contracts with Drs. Guido Perez and Miguel Cortez, who rendered services to Mr. Lopez. Moreover, Mr. Betancourt has a State of Florida Certificate of Exemption to operate a Health Care Clinic.
Mercury argues that it is entitled to final summary judgment because Mr. Betancourt unlawfully administered medical services to Mr. Lopez and therefore is barred from receiving Personal Injury Protection Benefits under section 627.736(1)(a), Florida Statutes (2008). Mercury supports its argument by asserting that a chiropractic physician assistant is prohibited by law from hiring a chiropractic physician as an independent contractor to provide chiropractic services. Finally, Mercury argues that Plaintiff is barred from recovering because it fails to meet the requirements for eligibility for PIP reimbursement under the PIP statute.
Standard
Summary judgment is proper if no genuine issue of material fact exists and if the moving party is entitled to a judgment as a matter of law. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]. “In reviewing a summary judgment, this Court ‘must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party.’ Tropical Glass & Const. Co. v. Gitlin, 13 So. 3d 156, 158 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1163a](quoting Krol v. City of Orlando, 778 So. 2d 490, 492 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D577a]). ‘When the non-moving party has raised affirmative defenses, it is incumbent upon the moving party to disprove the affirmative defenses or establish their legal insufficiency.’ Id. (citing Parker v. Dinsmore Co., 443 So. 2d 356 (Fla. 1st DCA 1983)(quoting Proprietors Ins. Co. v. Siegel, 410 So. 2d 993, 995 (Fla. 3d DCA 1982)).
Conclusions of Law:
Section 460.4167, Florida Statutes (2008), prohibits the employment of a chiropractic physician as an independent contractor by any person who is not “a sole proprietorship, group practice, partnership, or corporation that is wholly owned by one or more chiropractic physicians licensed under. . .chapter [460] or by a chiropractic physician licensed under [460] and the spouse, parent, child, or sibling of that chiropractic physician. . .” The statute enumerates certain exceptions, which are in applicable in the instant case. Subsection (6) provides that “[a]ny contract or arrangement entered into or undertaken in violation of this section shall be void as contrary to public policy. This section applies to contracts entered into or renewed on or after July 1, 2008.”
In this case, Mr. Betancourt has a Certificate of Exemption from the State of Florida to own and operate a “Health Care Clinic.” Moreover, Mr. Betancourt, in his deposition, stated that he had not entered or renewed any contracts on or after July 1, 2008. There is no record evidence to contradict this statement. Therefore, under either proposition (exemption or contract date), Mr. Betancourt is not in violation of section 460.4167, such that his status as a chiropractic physician’s assistant bars the Plaintiff from recovering in this case.
Accordingly, it is ORDERED and ADJUDGED, that Plaintiff’s Motion for Summary Judgment is hereby GRANTED, in part; Defendant’s Motion for Summary Judgment is hereby DENIED.
