18 Fla. L. Weekly Supp. 413a
Online Reference: FLWSUPP 1804NOEL
Insurance — Personal injury protection — Coverage — Where provision of 2008 PIP statute allowing insurer to limit reimbursement to 200% of Medicare fee schedule is permissive, policy language providing that insurer will pay 80% of reasonable charges controls reimbursement
STEVEN RUSSELL PEARLSTEIN, M.D., P.A., a Florida Corporation (assignee of Noel, Carnes), Plaintiff, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 10-06982 COCE 53. January 4, 2011. Robert W. Lee, Judge.
ORDER GRANTING PLAINTIFF’S MOTIONFOR PARTIAL SUMMARY JUDGMENT AS TODEFENDANT’S NINTH AFFIRMATIVE DEFENSE
THIS CAUSE came before the Court for hearing on November 3, 2010 on Plaintiff’s Motion for Partial Summary Judgment as to Defendant’s Ninth Affirmative Defense and, having reviewed the motions and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background: This is a P.I.P. case. Plaintiff is a medical provider who provided medical treatment to the patient and is seeking payment for reductions taken by Defendant pursuant to F.S.s. 627.736(5)(a)(2)(f)(2008). The policy in question was issued April 7, 2008 for a six (6) month term. The accident in question was November 4, 2008. The medical services in question were rendered November 7, 2008. Defendant has asserted as its ninth affirmative defense that it properly issued payment pursuant to F.S.s. 627.736(5)(a)(2)(f). Plaintiff moves for partial summary judgment as to this defense asserting that Florida Statute s. 627.736(5)(a)(2)(f) does not apply to Plaintiff’s charges and that the mandatory language of the insurance contract (“The Company will pay. . .medical expenses. 80%”) controls as it expressly provides for broader coverage than the permissive language in the P.I.P. statute (“the insurer may limit reimbursement. . .”).
Conclusion of Law: The Court continues to follow its prior ruling in Hollywood Diagnostic Center v. Mercury Insurance Company, Case No.: 09-844 COCE 53 (Broward Cty. Ct.) [17 Fla. L. Weekly Supp. 834a].
Accordingly, it is hereby:
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Partial Summary Judgment is GRANTED. The Defendant was not permitted to apply the fee schedules set forth in the 2008 P.I.P. statute to the Plaintiff’s claim and was required to issue payment at 80% of a reasonable charge for the medical expenses because the applicable policy language states that Defendant elects to make payments at 80% of the reasonable charges incurred for necessary and related medical services.
