21 Fla. L. Weekly Supp. 99a
Online Reference: FLWSUPP 2101KINDInsurance — Personal injury protection — Evidence — Where insurer did not make clear election in policy to pay benefits based on statutory fee schedule of section 627.736(5)(a)2 and did not issue payment based on that fee schedule, insurer may not mention statutory fee schedule or PIP insurers that have amended their policies to pay bills based on statutory fee schedule — Where amount paid by insurer was not accepted by medical provider as payment in full, insurer is precluded from advising jury of amount paid
HALLANDALE OPEN MRI, LLC, as assignee of Paul Kindelan, Plaintiff, vs. STATE FARM MUTUAL AUTO INSURANCE CO, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-009105 CONO 73. September 13, 2013. Steven P. Deluca, Judge. Counsel: Cris Evan Boyar, Boyar and Freeman, P.A., Coral Springs, for Plaintiff. Benjamin Silvanci, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION IN LIMINEAS TO F.S. §627.736(5)(a)(2) AND THE AMOUNT PAID
This cause, having come before the Court, counsel for the respective parties and the Court being fully advised in the premises of the agreement between the parties, it is hereby:
1. The Plaintiff’s Motion in limine to preclude any mention of F.S. §627.736(5)(a)(2) and the amount paid in this case is granted.
2. The Defendant shall not mention or ask any witnesses about F.S. §627.736(5)(a)(2) or about PIP insurers that have amended their PIP policies to pay medical bills based on the fee limitation found in F.S. §627.736(5)(a)(2) for the following reasons.
3. The Defendant did not issue payment based on this statute. The Defendant did not make this clear election in their policy. This statute is not an affirmative defense. F.S. §627.736(5)(a)(2) is not expressly incorporated within F.S. §627.736(5)(a)(1). As such, the Defendant many not mention this statute, directly or indirectly, to the jury. This information is not relevant and would be more prejudicial than probative.
4. Further, Insurers that have properly amended their policy to pay based on this fee limitation statute is not relevant and any information concerning this issue would not be relevant. It would be more prejudicial than probative and would confuse the jury as the jury would have to be instructed on F.S. §627.736(5)(a)(2) and its significance.
5. The Defendant shall not mention to the jury the amount they paid in this case. The amount paid by the Defendant was not accepted by the Plaintiff as payment in full. There is no accord and satisfaction defense. Advising the jury as to the amount paid would be more prejudicial than probative and would confuse the jury as to the issue in the case which is whether the amount billed is reasonable as opposed to the amount paid by the Defendant in this case which is not an issue for the jury to decide.
6. The Defendant is ordered to advise its witnesses and its trial counsel of this order and to not discuss these issues in front of the jury without first securing leave of the trial judge. Failure to comply with this order may result in a mistrial.
* * *
