19 Fla. L. Weekly Supp. 202b
Online Reference: FLWSUPP 1903MAYEInsurance — Personal injury protection — Coverage — Insurer is not permitted to apply permissive reimbursement limitations of PIP statute where policy requires payment of 80% of reasonable expenses
BEACHES OPEN MRI OF THE TREASURE COAST, LLC, a Florida Corporation (assignee of Mayer, Sheri 2), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 19th Judicial Circuit in and for Martin County. Case No. 11 813 SC. November 21, 2011. Stewart R. Hershey, Judge. Counsel: Yasmin Gilinsky, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Drew Stoller, Roig, Tutan, Rosenberg & Zlotnick, P.A., Deerfield Beach, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORPARTIAL SUMMARY JUDGMENT REGARDINGPOLICY LANGUAGE CONTROLLING OVERPERMISSIVE STATUTORY LANGUAGE
THIS CAUSE came before the court for hearing on November 15, 2011 on the Plaintiff’s Motion for Partial Summary Judgment Regarding Policy Language Controlling Over Permissive Statutory Language and the Court, having reviewed the motion, the court file, legal authorities and having heard argument of counsel, finds as follows:
Factual Background: This is a P.I.P. suit brought on behalf of the Plaintiff, an MRI provider, for MRI services rendered by the Plaintiff to Sheri Mayer. Defendant has pled the affirmative defense of “payment pursuant to F.S. s. 627.736(5)(a)(2)(f) and (5)(a)(3),” which alleges that the Defendant paid the appropriate amount pursuant to F.S. s. 627.736(5)(a)(2)(f) and (5)(a)(3). Plaintiff moves for partial summary judgment as to this defense asserting that the Defendant is not permitted to apply the permissive reimbursement limitations set forth in the P.I.P. statute but, rather, is required to pay the Plaintiff’s claim at 80% of reasonable expenses as set forth in its policy.
Legal Conclusion: The Court finds that under the holding of Kingsway Amigo Insurance Company v. Ocean Health, Inc. (a/a/o Belizaire Gomez), 36 Fla. L. Weekly D1062a (Fla. 4th DCA 2011) and the policy, no fee schedule may be automatically applied for the MRI services at issue in this suit.
ORDERED AND ADJUDGED that Plaintiff’s Motion for Partial Summary Judgment as to the Defendant’s affirmative defense of “payment pursuant to F.S. s. 627.736(5)(a)(2)(f) and (5)(a)(3)” is GRANTED. The Court finds that the Defendant is required to issue payment at 80% of reasonable expenses as set forth in its policy.1
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1The issue of whether the Plaintiff’s charges were reasonable or whether Defendant’s reimbursement was reasonable is not before the Court at this time. Therefore, the Court does not address the issue of reasonableness at this time.
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