18 Fla. L. Weekly Supp. 983a
Online Reference: FLWSUPP 1810CLEA Insurance — Personal injury protection — Coverage — Medical expenses — MRI — Statute does not authorize PIP insurer to utilize federal “Special rule for imaging services,” Hospital Outpatient Prospective Payment System, or any other Medicare restrictions or limitations not expressly described in statute when determining amounts due for MRI services provided in Florida to a PIP insured in a non-emergency, non-hospital setting since January 1, 2008 — Participating physicians schedule of Medicare Part B is operative fee schedule to be utilized
CLEARVIEW IMAGING L.L.C., d/b/a “Clear-View Diagnostic Imaging,” d/b/a “Clearview Open MRI,” individually and as assignee, Plaintiff, vs. SAFECO INSURANCE COMPANY OF ILLINOIS, Defendant. Circuit Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 10-CA-023950, Division G. July 26, 2011. Honorable Martha J. Cook, Judge. Counsel: David M. Caldevilla and Michael R. Bray, de la Parte & Gilbert, P.A., Tampa; Christopher P. Calkin and Michael Reiss, Law Offices of Christopher P. Calkin, P.A., Tampa; J. Daniel Clark, Clark & Martino, P.A., Tampa, for Plaintiff. Reginald A. Edmond, Law Office of Glenn G. Gomer, Tampa; Russell Yager, Jennifer B. Poppe, Christopher V. Popov, and Rachael B. Chester, Vinson & Elkins, LLC, Travis, TX, for Defendant.
FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on May 17, 2011 on: (1) the “Motion for Summary Judgment” served on January 11, 2011 by Plaintiff Clearview Imaging, LLC, and (2) the “Motion for Summary Judgment” served on February 7, 2011 by Defendant Safeco Insurance Company of Illinois. The Court, having considered the motions, the record, and the parties’ legal arguments, and being otherwise fully advised in the premises,
ORDERED AND ADJUDGED as follows:
1. The pleadings and admissible evidence of record demonstrate that there is no genuine issue as to any material fact, and that the Plaintiff is entitled to a judgment as a matter of law. Therefore, based on the findings and conclusions set forth herein, the Plaintiffs motion for summary judgment is hereby GRANTED, and the Defendant’s motion for summary judgment is hereby DENIED.
2. In this case, the Plaintiff has filed a one-count complaint seeking declaratory relief against the Defendant insurance company for allegedly underpaying personal injury protection (“PIP”) benefits associated with magnetic resonance imagining (“MRI”) services rendered to the Defendant’s insured.
3. This Court agrees with and follows the decisions reached in Nationwide Mutual Fire Ins. Co. v. AFO Imaging, Inc., 2011 WL 2622311, 36 Fla. L. Weekly D1463b, __ So.3d __ (Fla. 2d DCA July 6, 2011); AFO Imaging, Inc. v. Alpha Property & Casualty Ins. Co., 16 Fla. L. Weekly Supp. 533a (Fla. 13th Cir. Ct. Apr. 13, 2009); AFO Imaging Inc. v. Peak Property and Casualty Insurance Corp., 17 Fla. L. Weekly Supp. 368a (Fla. 13th Cir. Ct. January 25, 2010); AFO Imaging Inc. v. Peak Property and Casualty Insurance Corp., 17 Fla. L. Weekly Supp. 458b (Fla. 13th Cir. Ct. May 5, 2010); Advantage Open MRI, Inc. v. State Farm Mut. Auto. Ins. Co., 17 Fla. L. Weekly Supp. 660a (Fla. 13th Jud. Cir. Ct. June 1, 2010); All Family Clinic of Daytona Beach, Inc. v. State Farm Mutual Automobile Ins. Co., 685 F. Supp. 2d 1297 (S.D. Fla. 2010) [22 Fla. L. Weekly Fed. D352a]; V&T Investment Partners, LLC v. State Farm Fire and Casualty Co., 17 Fla. L. Weekly Supp. 1110a (Fla. Orange County Ct. June 4, 2010); and Cotton States Mut. Ins. Co. v. AFO Imaging, Inc., 46 So.3d 140 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D2343a].1
4. In accordance with those decisions, this Court hereby enters final judgment for the Plaintiff and against the Defendant, concluding and declaring as a matter of law that that Section 627.736(5)(a)2.f, 3, and 4, Florida Statutes (2007-2009)2 do not authorize a PIP insurer to utilize the “Special rule for imaging services” of 42 USC §1395w-4(b)(4), the Hospital Outpatient Prospective Payment System (“OPPS”), also known as the “OPD fee schedule,” or any other Medicare restrictions or limitations not expressly described by Section 627.736(5)(a)2.f, 3, and 4, when determining the amounts due for MRI services provided in the State of Florida to a PIP insured in a non-emergency, non-hospital setting since January 1, 2008.
5. As the Second District held as a matter of law in Nationwide Mutual, the participating physicians schedule of Medicare Part B is “the operative fee schedule to be utilized in computing the minimum amount the Insurance Companies were statutorily allowed to remit for the type of medical services, supplies and care provided to the PIP insureds by the MRI Providers.” Id., 2011 WL 2622311 at *2. “[T]he minimum amount due for the MRI services provided in a nonemergency, nonhospital setting to the Insurance Companies’ PIP insureds covered under Florida law could not have been capped by the OPD fee schedule amount payable by Medicare under OPPS.” Id. at *3.
6. The Court hereby reserves jurisdiction to consider any claims for attorneys’ fees and costs.
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1This Court respectfully disagrees with the contrary decisions reached in cases such as MRI Services, I, LLC v. Mercury Insurance Company of Florida, 17 Fla. L. Weekly Supp. 46a (Fla. Broward County Ct. Nov. 4, 2009) and Bravo v. Altamonte Springs Diagnostic Imaging, Inc. v. State. Farm Fire & Casualty Co., 17 Fla. L Weekly Supp. 194b (Fla. Orange County Ct. Jan. 14, 2010). Those decisions are effectively overruled by the Second District’s decision in Nationwide Mutual.
2As used herein, all citations to the “2007-2009” versions of Section 627.736, Florida Statutes and all subsections thereof, refer to the versions in effect since January 1, 2008, as adopted in Chapter 2007-324, Laws of Florida (2007), Chapter 2008-220, Laws of Florida (2008) and Chapter 2009-21, §86, Laws of Florida (2009).
