22 Fla. L. Weekly Supp. 617a
Online Reference: FLWSUPP 2205BAPTInsurance — Personal injury protection — Coverage — Emergency medical condition — Physician who did not provide any services or care to claimant is not qualified medical provider for purposes of determining whether claimant had emergency medical condition — Non-treating physician’s determination that claimant did not have emergency medical condition does not limit reimbursement to $2,500 when treating physician has determined that claimant had emergency medical condition — PIP statute does not permit insurer to challenge determination of qualified provider that claimant had emergency medical condition
FIRST CHOICE CHIROPRACTIC & REHABILITATION CENTER, INC., d/b/a FIRST CHOICE CARE CHIROPRACTIC, a/a/o ILERTA JEAN BAPTISTE, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 10th Judicial Circuit in and for Polk County, Civil Division. Case No. 2013CC-005445. December 9, 2014. Gerald P. Hill, II, Judge. Counsel: Hans Kennon, Morgan & Morgan, P.A., Orlando, for Plaintiff. Rob Adams, Adams & Diaco, P.A., Tampa, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT AS TO DEFENDANT’SAFFIRMATIVE DEFENSE # 1
THIS CAUSE came before the Court on November 25, 2014, for hearing on Plaintiff’s Motion for Summary Judgment as to Defendant’s Affirmative Defense # 1 (the “Motion”). Having reviewed the Motion, pleadings, and affidavits of record, having heard the arguments of counsel, and otherwise being fully advised on the premises, the Court finds as follows:BACKGROUND AND ANALYSIS
Plaintiff filed this action on December 9, 2013, seeking recovery of amounts alleged to be due from Defendant arising from medical services provided by Plaintiff to Ilerta Jean Baptiste (“Claimant”), who was insured by Defendant. Claimant’s insurance policy with Defendant included personal injury protection (“PIP”) benefits. Claimant sustained injuries in a motor vehicle accident on February 8, 2013 for which she received treatment from Plaintiff. The Complaint alleges that the Claimant executed an assignment of benefits in which she assigned “all rights, title, interest, and PIP and medical benefits under said policy of insurance to the Plaintiff . . . .” Pl.’s Compl., ¶ 7. On January 17, 2014, Defendant filed an Answer and Affirmative Defenses, in which Defendant raised the following affirmative defense:
The Claimant, Ilerta Jeane-Baptiste, did not suffer an emergency medical condition as defined in Florida Statute 627.732(16). As such, the amount of personal injury protection benefits available to Claimant, or any of her assignees, is limited to $2500.00, which Progressive has already tendered.
Pursuant to § 627.736(1)(a)(3), Fla. Stat., reimbursement under a PIP policy is limited to “up to $10,000.00 if a physician licensed under chapter 458 or chapter 459, a dentist licensed under chapter 466, a physician assistant licensed under chapter 458 or chapter 459, or an advanced registered nurse practitioner licensed under chapter 464 has determined that the injured person had an emergency medical condition.” Alternatively, § 627.736(1)(a)(4), Fla. Stat. provides that reimbursement is “limited to $2,500.00 if a provider listed in subparagraph 1. or subparagraph 2. determines that the injured person did not have an emergency medical condition.” Although Defendant disputes that Claimant had an emergency medical condition, it is undisputed that Dr. Johnny Thomas determined that Claimant suffered from an emergency medical condition and that written notice of Dr. Thomas’s determination was provided to Defendant.
Plaintiff asserts in its Motion for Summary Judgment that Defendant has denied reimbursement to Plaintiff for amounts above $2,500.00 as a result of a determination by Dr. Jan Parillo, who reviewed Plaintiff’s records and determined that Claimant did not suffer from an emergency medical condition. Defendant argues a “provider” under § 627.736(1)(a)(4), Fla. Stat. is any person who holds one of the licenses required by the statute, and as Dr. Parillo holds one of the required licenses, she is a “provider” for purposes of § 627.736(1)(a)(4), Fla. Stat. Defendant further argues that Dr. Parillo’s determination that Claimant did not suffer from an emergency medical condition limits Defendant’s obligation for reimbursement to $2,500.00 pursuant to § 627.736(1)(a)(4), Fla. Stat. Plaintiff argues that Dr. Parillo’s determination does not limit reimbursement to $2,500.00, as Dr. Parillo did not provide any medical services to Claimant and therefore is not a “provider” for purposes of § 627.736(1)(a)(4), Fla. Stat. Further, Plaintiff argues that the PIP statute does not provide any method for a party to challenge a provider’s determination that an emergency medical condition exists, and therefore Dr. Thomas’s determination entitles Plaintiff to reimbursement for up to $10,000.00 pursuant to § 627.736(1)(a)(3), Fla. Stat.
Summary judgment should be granted if there “is no genuine issue as to any material fact and . . . the moving party is entitled to summary judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). In this case, if Dr. Parillo’s determination that Claimant did not suffer from an emergency medical condition is a determination by a “provider” as set forth in § 627.736(1)(a)(4), Fla. Stat., the conflicting determinations of Dr. Thomas and Dr. Parillo establish a genuine issue of material fact, and Plaintiff’s motion must be denied. However, if Dr. Parillo is not a “provider” for purposes of § 627.736(1)(a)(4), Fla. Stat., then there is no genuine issue of material fact, and Plaintiff’s motion must be granted if Plaintiff is entitled to judgment as a matter of law.
In determining whether a person who holds one of the licenses required by § 627.736(1)(a)(4), Fla. Stat., but who has not provided treatment to a claimant, is a “provider” for purposes of § 627.736(1)(a)(4), Fla. Stat., this Court must look first to the plain meaning of the statute. Maggie Knowles v. Beverly Enterprises-Florida, Inc., 898 So. 2d 1, 5 (Fla. 2004) [29 Fla. L. Weekly S788a]. As the Supreme Court of Florida stated in Knowles, “when the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Id. (quoting Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984)). The statute upon which Defendant relies for its affirmative defense, § 627.736(1)(a)(4), Fla. Stat., refers to a determination made by “a provider listed in subparagraph 1. or subparagraph 2.” Those subsections, specifically § 627.736(1)(a)(1) and (2), Fla. Stat., state:
1. Initial services and care that are lawfully provided, supervised, ordered, or prescribed by a physician licensed under chapter 458 or chapter 459, a dentist licensed under chapter 466, or a chiropractic physician licensed under chapter 460 or that are provided in a hospital or in a facility that owns, or is wholly owned by, a hospital. Initial services and care may also be provided by a person or entity licensed under part III of chapter 401 which provides emergency transportation and treatment.
2. Upon referral by a provider described in subparagraph 1., follow up services and care consistent with the underlying medical diagnosis rendered pursuant to subparagraph 1. which may be provided, supervised, ordered, or prescribed only by a physician licensed under chapter 458 or chapter 459, a chiropractic physician licensed under chapter 460, a dentist licensed under chapter 466, or, to the extent permitted by applicable law and under the supervision of such physician, osteopathic physician, chiropractic physician, or dentist, by a physician assistant licensed under chapter 458 or chapter 459 or an advanced registered nurse practitioner licensed under chapter 464.
The plain language of subsection 1 indicates that a “provider” for purposes of the PIP statute includes any person holding any of the listed licenses who has “lawfully provided, supervised, ordered, or prescribed” initial services and care. Subsection 2 includes a person who holds any of the listed licenses who has provided “follow up services and care consistent with the underlying medical diagnoses rendered pursuant to subparagraph 1” and which were provided “[u]pon referral by a provider described in subparagraph 1.”
The language of § 627.736(1)(a)(4), Fla. Stat., is clear and unambiguous. A “provider” who is permitted to make a determination that an injured person did not have an emergency medical condition for purposes of the PIP statute must either by a duly licensed person who initially provided services pursuant to § 627.736(1)(a)(1), Fla. Stat., or a duly licensed person who provided follow up services pursuant to § 627.736(1)(a)(2), Fla. Stat. It is undisputed that Dr. Parillo did not provide any services or care to Claimant. As such, Dr. Parillo is not a “provider” for purposes of § 627.736(1)(a)(4), Fla. Stat., and Dr. Parillo’s determination that Claimant did not have an emergency medical condition does not limit Plaintiff’s right to reimbursement to $2,500.00.
The Court also notes that the PIP statute does not contain any provision permitting an insurer to challenge a provider’s determination that a claimant had an emergency medical condition, and it appears there is no case law permitting such a challenge.
As the undisputed facts establish that: (1) Dr. Parillo is not a “provider” for purposes of § 627.736(1)(a)(4), Fla. Stat., (2) Dr. Thomas, who is a provider for purposes of § 627.736(1)(a)(3), Fla. Stat., determined Claimant had an emergency medical condition, and (3) no person who is a “provider” for purposes of § 627.736(1)(a)(3) or (4), Fla. Stat., has determined that Claimant did not have an emergency medical condition, there is no genuine issue as to any material fact and Plaintiff is entitled to summary judgment as a matter of law as to Defendant’s affirmative defense.
Based on the foregoing, it is hereby ORDERED AND ADJUDGED:
1. Plaintiff’s Motion for Final Summary Judgment as to Defendant’s Affirmative Defense # 1 is GRANTED.
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