27 Fla. L. Weekly Supp. 75a
Online Reference: FLWSUPP 2701TOLEInsurance — Personal injury protection — Coverage — Medical benefits — Exclusions — Massage — Statutory bar to payment of medical benefits for massage does not apply to claim brought incorporated licensed clinic for non-massage services — Fact that clinic is a corporation owned solely by a licensed massage therapist is immaterial
HEALTH MIAMI MED. CTR. CORP, a/a/o Barbara Padron Toledo, Plaintiff, v. WINDHAVEN INSURANCE CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 17-7825 CC 26 (4). June 1, 2018. Lawrence D. King, Judge. Counsel: Christian Carrazana, Christian Carrazana, P.A., Homestead, for Plaintiff. Jordan Martin, Windhaven Claims Mgmt., Miami, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT &FINAL DECLARATORY JUDGMENT THEREON
THIS ACTION was heard on Plaintiff’s motion for final summary judgment on May 30, 2018. After hearing the arguments of counsel and being otherwise fully advised in the premises, the Court makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. This is an action for declaratory relief governed by the Florida Declaratory Judgment Act, §§ 86.011, Fla. Stat., et. seq.
2. Defendant issued a contract for automobile insurance to Raikel Lazaro Mora (“insured”) policy no. WIN01386032, which provides among other things, personal injury protection insurance coverage to the limit of $10,000 as required by Florida law.
3. At all times material hereto, said policy of insurance was in full force and effect.
4. Pursuant to the terms of said policy, Defendant agreed to pay the insured, the insured’s resident relatives, and occupants of the insured vehicle, reasonable medical expenses for medically necessary treatment related to a motor vehicle accident regardless of fault.
5. Barbara Padron Toledo (“claimant”) suffered personal injuries as a result of a motor vehicle accident that occurred on May 2, 2017.
6. Following said accident, the claimant sought treatment and care with the Plaintiff, Health Miami Medical Center Corp., (“Health Miami”).
7. At all times material hereto, Health Miami is a Florida corporation and a licensed clinic under Part X, Chapter 400.
8. The medical physician saw the claimant at the facility of Miami Health and prescribed physical therapy.
9. Said physical therapy was performed by a licensed massage therapist, Alex Borrero LMT. (“Borrero”).1
10. Borrero is the sole owner of Miami Health.
11. The claimant incurred $11,924.00 for treatment and care rendered by Health Miami on the following dates of service: May 4, 2017 to July 6, 2017.
12. Plaintiff submitted said expenses to Defendant for payment of pip benefits under said policy of insurance and requested that payment be made directly to Health Miami.2
13. The expenses submitted for payment did not include charges for massage therapy.
14. After receipt of the subject claim, Defendant denied payment pursuant to the statutory bar under § 627.736(1)(a)5, Fla. Stat.
15. According to Defendant, payment is barred under subsection (1)(a)5 of the pip statute because the treatment at issue was rendered by a massage therapist and the clinic seeking payment is owned by a massage therapist.
16. Health Miami filed suit against Defendant for declaratory relief in which Health Miami seeks a declaratory judgment that the statutory bar under (1)(a)5 is inapplicable and therefore, Defendant wrongfully denied the claim on said basis.
17. Defendant served an answer to the complaint in which Defendant has raised the statutory bar under subsection (1)(a)5 as an affirmative defense.
18. Plaintiff now moves for final summary judgment.
STANDARD OF REVIEW
19. The moving party on a motion for summary judgment bears the burden of proving the non-existence of a genuine issue of material fact. Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966). The burden of proving the existence of a genuine issue of fact is not shifted to the non-moving party unless the moving party has met his burden. Id. at 43. Where the movant has met his burden, the non-moving party may not merely assert that a genuine issue of fact does exist but must come forth with evidence sufficient to demonstrate an issue of material fact. Harvey Building, Inc., v. Haley, 175 So.2d 780 (Fla. 1965). “[I]f the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences or if it tends to prove issues, it should be submitted to the jury as a question of fact. . .” Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985).
CONCLUSIONS OF LAW
20. In the present case, there are no genuine issues of material fact. Therefore, the sole issue before the Court is a question of law.
21. The question as framed by the pleadings and evidence concerns whether the statutory bar under § 627.736(1)(a)5., Fla. Stat., bars the claim at issue. As such, this is a matter of statutory interpretation.
A. Statutory Construction
22. As always, legislative intent is the polestar that guides statutory interpretation. Bautista v. State, 863 So.2d 1180, 1185 (Fla. 2003) [28 Fla. L. Weekly S849a]. To discern legislative intent, courts first look to the language of the statute, because legislative intent is determined primarily from the statute’s text. Anderson v. State, 87 So.3d 774, 777 (Fla. 2012) [37 Fla. L. Weekly S227a].
23. If statutory language is “clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation; the statute must be given its plain and obvious meaning.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)).
B. The PIP Statute
24. The statutory provision at issue in the present case is clear and unambiguous. The provision states:
“Medical benefits do not include massage as defined in s. 480.033 or acupuncture as defined in s. 457.102, regardless of the person, entity, or licensee providing massage or acupuncture, and a licensed massage therapist or licensed acupuncturist may not be reimbursed for medical benefits under this section.”
§ 627.736(1)(a)5.
25. Since the text is free of ambiguity, there is no occasion to rely on the rules of statutory construction; instead, the provision must be construed by its plain and ordinary meaning. See Auld, supra.
C. The Instant Case
26. Applying the text in the instant case, it is clear that the statutory bar is inapplicable whereas here, the party seeking payment is not a massage therapist, but instead a corporation and licensed clinic. Although Health Miami is a corporation that is solely owned by a massage therapist, that fact is immaterial. Corporations are legal entities that are separate and distinct from persons compromising them. American States Ins. Co., v. Kelley, 446 So.2d 1085, 1086 (Fla. 4d DCA 1984).
27. Defendant, however, argues that the statute should not be so narrowly construed so at to allow Health Miami to “back-door” what it can’t get in through the front door.3 The Court disagrees. Defendant overlooks that absent absurdity, the Court is unauthorized to depart from the statute’s plain meaning where the text is unambiguous. See Auld, 450 So.2d at 219. Further, the Court’s narrow interpretation does not yield absurdity; a rational explanation exists as far as why clinics are not barred as a payee under subsection (1)(a)5.4 Health care clinics are an integral component of the healthcare system; they are subject to statutory regulations and must be licensed under Chapter 400 in order to receive pip reimbursements. See § 400.9905(n), Fla. Stat. (“an entity shall be deemed a clinic and must be licensed under this part in order to receive reimbursement under the Florida Motor Vehicle No Fault Law, ss. 627.730-627.7405 . . . .”)
28. Lastly, the statutory bar under subsection (1)(a)5 is also inapplicable where Health Miami did not bill for massage therapy. It is undisputed that the charges at issue are for services that do not involve the manipulation of the soft tissue by hand, foot or elbow.5
ACCORDINGLY it is hereby ORDERED & ADJUDGED that Plaintiff’s Motion for Final Summary Judgment is GRANTED and that FINAL DECLARATORY JUDGMENT is hereby entered for Plaintiff, HEALTH MIAMI MEDICAL CENTER CORP., as assignee of Barbara Toledo Padron, and against Defendant, WINDHAVEN INSURANCE COMPANY, declaring that:
(a) the statutory bar under § 627.736(1)(a)5, Fla. Stat., is inapplicable whereas here, there are no charges for massage therapy and the party seeking payment is not a massage therapist, but instead a corporation and licensed clinic under Part X, Chapter 400. As such, Defendant wrongfully denied the subject pip claim based on § 627.736(1)(a)5;
(b) Defendant is liable on the policy to the Plaintiff for the subject pip claim;
The Court reserves jurisdiction to award Plaintiff damages for the outstanding medical expense as supplemental relief incidental to this declaratory judgment; the Court also reserves jurisdiction to award Plaintiff taxable costs and attorney fees for successful prosecution of this action pursuant to §§ 57.041 and 627.428, Fla. Stat.
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1Borrero performed the following physical therapy: (a) hot/cold packs; (b) electric stimulation; (c) ultrasound; (d) therapeutic exercises; (e) myofascial release.
2The claimant is a statutory omnibus insured under the subject policy.
3On this point of argument, Defendant relies on a sister County Court decision in Sunshine Rehab & Medical Inc., a/a/o Rafael Sanchez v. Progressive American Insurance Co., 25 Fla. L. Weekly Supp. 549a (Miami Dade Cty. Ct. 2017) (Simon, J.). There, the County Court determined that under subsection (1)(a)5., payment is barred to a licensed clinic for all services rendered by a massage therapist. This Court, however, disagrees with the ruling in Sunshine Rehab, supra. The Court in Sunshine Rehab misread the statute. Again, the plain language in subsection (1)(a)5 bars payment to a massage therapist, not a licensed clinic. Further, only payment for massage therapy is barred; other modalities are not subject to the statutory bar.
4“If expanded beyond rational basis review, the absurdity exception [to the plain meaning rule] would threaten to undermine the separation of powers by allowing judges to substitute their own views of wise public policy for the compromises struck by legislators.” Maddox v. State, 923 So.2d 442, 452 (Fla. 2006) [31 Fla. L. Weekly S24a] (Cantero, J. dissenting)
5“ “Massage” means the manipulation of the soft tissues of the human body with the hand, foot, arm, or elbow, whether or not such manipulation is aided by hydrotherapy, including colonic irrigation, or thermal therapy; any electrical or mechanical device; or the application to the human body of a chemical or herbal preparation.” § 480.033(3), Fla. Stat.
