19 Fla. L. Weekly Supp. 735c
Online Reference: FLWSUPP 1909VILLInsurance — Personal injury protection — Coverage — Policy language regarding method of reimbursing claims controls over permissive statutory fee schedule not referenced in policy
PRECISION DIAGNOSTICS, INC., a Florida Corporation (assignee of Villar, Henry), Plaintiff, v. PEAK PROPERTY AND CASUALTY INSURANCE CORP., Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 162009SC008552XXXX-MA. May 17, 2012. Dawn Hudson, Judge. Counsel: Russel Lazega, for Plaintiff. Ashley Ward-Singleton, 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 May 9, 2012 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, it is hereby,
ORDERED AND ADJUDGED that Plaintiff’s Motion for Partial Summary Judgment Regarding Policy Language Controlling Over Permissive Statutory Language is GRANTED. Kingsway Amigo Insurance Company v. Ocean Health, Inc. (a/a/o Belizaire Gomez), 36 Fla. L. Weekly D1062a (Fla. 4th DCA 2011); Geico Indemnity Company v. Virtual Imaging Services, Inc., 36 Fla. L. Weekly D2597a (Fla. 3rd DCA 2011); United Automobile Insurance Co. v. Hallandale Beach Orthopedics, Inc., a/a/o Azriah Fulton, 36 Fla. L. Weekly D2665a (Fla. 4th DCA 2011); United Automobile Insurance Company v. Millennium Radiology, LLC a/a/o Luis Rivas, 37 Fla. L. Weekly D71b (Fla. 4th DCA 2011); and DCI MRI, Inc. v. Geico Indemnity Company and Geico Casualty Company, 37 Fla. L. Weekly D170e (Fla. 4th DCA 2012). The Court finds that under the holding of the cases cited above, the fee schedule was not permitted to be applied in this case as the applicable policy “made no reference to the permissive methodology of subsection 627.736(5)(a)2.” Id.
The Court denies Defendant’s request for a stay pending possible review by the Supreme Court of Florida as the court is bound to follow the existing controlling case law. Should the Supreme Court choose to exercise jurisdiction and rule on this question the court may revisit this decision at that time as the order is interlocutory and only enters partial summary judgment as to the Fee Schedule defense.
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