27 Fla. L. Weekly Supp. 76a
Online Reference: FLWSUPP 2701MARTInsurance — Personal injury protection — Coverage — Medical benefits — Exclusions — Massage — Statutory bar to payment of medical benefits for massage does not apply to claim brought by incorporated licensed clinic for non-massage services — Fact that clinic is a corporation owned solely by a licensed massage therapist is immaterial
THERAPEUTIC REHAB CTR., as assignee of Marisol Martinez, Plaintiff, v. GEICO INDEMNITY CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 14-5299 CC 26 (3). December 3, 2015. Gloria Gonzalez-Meyer, Judge. Counsel: Christian Carrazana, Christian Carrazana, P.A., Homestead, for Plaintiff. Daniel E. Faltas, Herssein Law Group Inc., Miami, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINALSUMMARY JUDGMENT ON COUNT I OF THE COMPLAINT;AND FINAL DECLARATORY JUDGMENT THEREON
THIS ACTION came before the Court on Plaintiff’s and Defendant’s competing motions for summary judgment; and upon hearing the arguments of counsel and being otherwise fully advised in the premises, the Court makes the following findings of fact and law:
UNDISPUTED FACTS
1. This is an action for declaratory relief governed by the Florida Declaratory Judgment Act, §§ 86.011, Fla. Stat., et. seq.
2. Defendant, GEICO INDEMNITY COMPANY, issued a policy of insurance that provided personal injury protection insurance coverage to Marisol Martinez (“Martinez”).
3. At all times material hereto, said policy was in full force and effect.
4. Martinez was involved in a motor vehicle accident on or about April 18, 2013.
5. Martinez suffered personal injuries as a result of said accident.
6. The following day after the accident, Martinez was seen by a medical physician, Dr. Hugo D. Goldstraj M.D.
7. Based on his examination, Dr. Goldstraj M.D. prescribed a course of physical therapy for Martinez.
8. After Martinez obtaining a prescription for therapy, Martinez began therapy at the Plaintiff’s medical facility.
9. At all times material hereto, the Plaintiff, THERAPEUTIC REHABILIATION CENTER INC., is a Florida corporation.
10. Further, Plaintiff was licensed as a health care clinic by the Agency of Health Care Administration (“AHCA”) on July 10, 2012; and was so licensed when the services at issue were rendered.
11. Martinez received physical therapy at Plaintiff’s facility on the following dates: April 19, 2013 to July 10, 2013.
12. The physical therapy in this case was performed by Clara De Armas, who is a licensed massage therapist (“LMT”).
13. Therapy was also performed on a few occasions by Sandra Rua who also holds a massage therapy license.
14. Ms. Rua, moreover, is the owner of Plaintiff, THERAPEUTIC REHAB CTR. INC.
15. Massage therapy, however, was not rendered for Martinez; and nor was massage therapy billed to Defendant in this case.
16. Plaintiff submitted a total of $14,546 medical expense to Defendant for said services rendered.
17. Upon receipt of the bills, Defendant denied coverage on the basis that pursuant to § 627.736(1)(a)(5), Fla. Stat., (2013), a licensed massage therapist (“LMT”) cannot receive pip reimbursements.
18. After Defendant denied coverage, Plaintiff filed a three count compliant for declaratory relief.
19. In the first count, Plaintiff seeks a declaration that Defendant is liable on the policy because § 627.736(1)(a)(5) does not apply. In the second and third counts, Plaintiff seeks a declaration that § 627.736(1)(a)(5) is unconstitutional on equal protection and due process grounds.
20. Defendant answered the complaint and asserted as its sole affirmative defense that § 627.736(1)(a)(5) bars coverage for the claim at issue.
21. After the pleadings closed, both parties filed competing motions for summary judgment on count one of the complaint.
22. The Court heard arguments on the parties’ competing motions for summary judgment on October 21, 2015.
STANDARD OF REVIEW
23. 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).
24. 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.
25. 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).
26. “[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).
27. In the present case, no facts are in dispute. As such, the only question that remains is one of law.
ANALYSIS OF LAW
28. The issue before the Court is whether § 627.736(1)(a)(5), Fla. Stat. (2013) bars Defendant’s liability for the medical expenses at issue where the entity seeking reimbursement is not an LMT, but instead an incorporated health care clinic owned by an LMT. This is a matter of first impression for this Court.
29. The parties disagree on whether § 627.736(1)(a)(5), Fla. Stat. (2013) applies in this case. Defendant insists that § 627.736(1)(a)(5) applies because the therapy was performed by an LMT and Plaintiff is owned by an LMT. Plaintiff, on the other hand, counters that § 627.736(1)(a)(5) does not apply whereas here, no massage therapy was billed; and the entity seeking payment is not an LMT, but instead an incorporated health care clinic licensed under Part X, Chapter 400.
30. As in all statutory construction cases, we begin with the language of the statute. When an interpreting a statute, a court should always turn first to one cardinal canon before all others — that is, a court must presume that what the “legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-254 (1992). “When the words of a statute are unambiguous, then this first canon is also the last: ‘judicial inquiry is complete.’ ” Id.; See also Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) (explaining that where a statute is clear and unambiguous, there is no occasion to rely on the rules of statutory construction; the statute instead must be given its plain and ordinary meaning)
31. With respect to the question presented in this case, the Court finds that the statute is clear and unambiguous. The statute 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), Fla. Stat. (2013) (emphasis added)
32. There is no doubt that the legislature intended to prohibit LMTs from receiving pip reimbursements. The statute is clear in that regard. Therefore, the only question is whether Plaintiff fits within the meaning of “licensed massage therapist” in § 627.736(1)(a)(5).
33. Because the statute is unambiguous, we must interpret “licensed massage therapist” by its ordinary meaning since the PIP statute does not define the phrase. See Green v. State, 604 So.2d 471, 473 (Fla. 1992) (“we give statutory language its plain and ordinary meaning, unless words are defined in the statute . . . .”) We must look to the dictionary to determine its plain meaning. See also L.B. v. State, 700 So.2d 370, 372 (Fla. 1997) [22 Fla. L. Weekly S609a] The term “license” is defined by the dictionary as “an official document, card, etc., that gives you permission to do, use, or have something.” http://www.merriamwebster.com/dictionary/licensed “Massage” is defined as “the action of rubbing or pressing someone’s body in a way that helps muscles to relax or reduces pain in muscles and joints.” http://www.merriam-webster.com/dictionary/massage “Therapist” is defined a person trained in methods of treating illnesses especially without the use of drugs or surgery.” http://www.merriam-webster.com/dictionary/therapist
34. The dictionary meaning of “licensed massage therapist” is consistent with its statutory definition in Chapter 480.1 The phrase is defined by the legislature “as a person licensed . . . who administers massage for compensation.”2 § 480.033(4), Fla. Stat. (2015).
35. The Court rejects Defendant’s interpretation of the statute because Plaintiff is neither an LMT nor an acupuncturist. Plaintiff instead is a health care clinic.3
36. The Court also rejects Defendant’s interpretation because Plaintiff is a corporation. Corporations are legal entities separate and distinct from the persons comprising them. See American States Ins. Co. v. Kelley, 446 So.2d 1085, 1086 (Fla. 4d DCA 1984); Gasparini v. Pordomingo, 972 So.2d 1053, 1054 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D295a] As such, it does not matter whether Plaintiff is owned by an LMT. Plaintiff is a separate legal entity; and it must be recognized as such regardless of who owns it. See Id.
37. Defendant’s interpretation of § 627.736(1)(a)(5) is contrary to the statutory text. Subsection (1)(a)(5) does not say that an incorporated health care clinic that is both licensed under Part X, Chapter 400 and owned by LMT cannot be reimbursed — the provision instead only says that LMTs cannot be reimbursed.
38. The fact that Plaintiff is a licensed health care clinic under Part X Chapter 400 is a critical factor that helps sway the outcome for the Plaintiff. That is so because the PIP statute mandates that non doctor owned facilities must be licensed under Part X of Chapter 400 in order to receive pip payments.4
39. Defendant argues that the text in § 627.736(1)(a)(5) should not be read in a vacuum; instead the text “must be read in their context and with a view to their place in the overall statutory scheme.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000). The thrust of Defendant’s argument on this point is twofold. First, Defendant invokes an exception to the plain meaning rule so as to permit the Court to depart from the statute’s plain meaning where a different meaning is implied from the context in which the words are used.5 Second, by invoking this exception, Defendant contends that both the specific context in which the phrase “licensed massage therapist” is found in subsection (1)(a)(5) and the broader context of the PIP statute as a whole, gives it a more expansive meaning to include “incorporated health care clinics owned by LMTs.”
40. Defendant, however, has failed to make a cogent case in persuading the Court that it is necessary to construe the entire PIP statue as a whole to determine the meaning of “license massage therapist” in subsection (1)(a)(5). When the statutory text is clear, we do not rely on the canons of construction or interpretative tools; instead we give the text its plain meaning. Holly, 450 So.2d at 219. The Court may, however, apply the cannons where part of a statute, although clear when read alone, is inconsistent with other parts of the same statute or others in pari materia. See Florida State Racing Commission v. McLaughlin, 102 So.2d 574, 575-76 (Fla.1958) But this cannon does not apply because the ordinary meaning of “licensed massage therapist” in subsection (1)(a)(5) is not inconsistent with other parts of the PIP statute or other statutes in pari materia. In fact, and as mentioned earlier, the ordinary meaning is consistent with the statutory definition found in § 480.033(4).
41. The case law, however, suggests that when construing a statute by its plain meaning, further analysis maybe necessary to determine whether the contextual meaning of the statutory text controls over its ordinary meaning. For instance, the Florida Supreme Court explained that when determining the plain meaning of a statutory text, we look not only to the words themselves but also to the context in which the text lies. See Horowitz v. Plantation General Hosp. Ltd. Partnership, 959 So.2d 176, 182 (Fla. 2007) [32 Fla. L. Weekly S254a] “[R]easonable statutory interpretation must account for both “ ‘the specific context in which . . . language is used’ and ‘the broader context of the statute as a whole.’ ” Utility Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2442 (2014) [24 Fla. L. Weekly Fed. S881a]. Thus, a statutory phrase that has one apparent meaning when read in isolation may have a different meaning when read in the context of the statute as a whole. See e.g., King et. al., v. Burwell, 567 U.S.___, 135 S.Ct. 2480, 2015 WL 2473448 (2015) [25 Fla. L. Weekly Fed. S430a]. This approach is sometimes necessary because the ordinary meaning of a statutory term or phrase may not control due to its context.6
42. The Court, however, finds that this is not an occasion where context defeats the ordinary meaning. That is so because here, both the ordinary meaning and context point the same way. The specific context in subsection (1)(a)(5) does not give “licensed massage therapist” a more expansive meaning to include “an incorporated health care clinic owned by an LMT.” Likewise, when construing “licensed massage therapist” in subsection (1)(a)(5) in the broader context of the statute as a whole, it does not support Defendant’s expansive interpretation either. In fact, if we adopt Defendant’s interpretation, it yields inconsistency. For instance, it yields a result where a licensed clinic not owned by an LMT can receive reimbursements while one that is owned by an LMT cannot. Needless to say, the PIP statute cannot be read to yield inconsistent results. See State v. Montello, 867 So.2d 613, 615 (Fla. 4d DCA 2004) [29 Fla. L. Weekly D597c] (explaining that when necessary, all parts of statute should be read together for consistency).
43. More importantly, the Court rejects Defendant’s interpretation because it raises questions of constitutionality that concern both equal protection and due process. If the legislature intended to exclude certain licensed health care clinics from collecting pip reimbursements solely because they are owned by LMTs, then it begs the question what rational basis is there to treat such clinics differently from other licensed clinics that are not owned by LMTs? Such a classification is arbitrary for there is no rational basis for why a licensed clinic owned by a non professional may be paid, while one owned by an LMT cannot.7 With this in mind, constructions which cast doubt on a statute’s constitutionality should be avoided. See Industrial Fire & Cas. Ins. Co., v. Kwechin, 447 So.2d 1337, 1339 (Fla. 1983).
44. Defendant also relies on legislative history. Legislative history, however, is irrelevant where the statute is clear and unambiguous as it is here. See Aetna Cas. & Sur. Co. v. Huntington Nat. Bank, 609 So.2d 1315, 1317 (Fla. 1992).
45. While seeking to convince this Court that the statute says something that it does not, Defendant overlooks that the Court cannot rewrite the statute. It has been said time and time again that “[e]ven where a court is convinced that the Legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free rom ambiguity.”8 Accordingly, Defendant should not seek to amend the statute by appeal to the judiciary for the courts are not in the business of legislating. The proper forum for Defendant to address its dissatisfaction with the wording of the statute is the legislature.
46. Finally, Defendant implies that it would be unreasonable or absurd to limit “license massage therapist” by its literal meaning or to natural persons. That is so since a literal interpretation would in effect allow LMTs to circumvent the exclusion in subsection (1)(a)(5) under the guise of an incorporated clinic.
47. The Court agrees that generally speaking, a statute should not be given a literal interpretation that would yield an absurd result that is obviously unintended by the legislature. See State v. Sullivan, 95 Fla. 191, 116 So. 255, 261 (Fla. 1928). But “this exception to the plain meaning rule should not be used to avoid an unintended result, only an absurd or patently unreasonable one.” Maddox v. State, 923 So.2d 442, 452 (Fla. 2006) [31 Fla. L. Weekly S24a] (Cantero, J. dissenting). The exception, moreover, is intended to be narrow. Id. “The [U.S. Supreme] Court, for example, “rarely invokes such a test to override unambiguous legislation.” ” Id. (quoting Barnhart v. Sigmon Coal Co., 534 U.S. 438, 459, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) [15 Fla. L. Weekly Fed. S101a]. The Supreme Court has come “to connect its absurdity analysis to the more forgiving standards of rationality review — meaning that it will enforce a statute’s plain meaning as long as it can hypothesize a rational basis to support the textual policy.” Id. (citing and quoting John F. Manning, The Absurdity Doctrine, 116 Harv. L.Rev. 2387, 2452 n.244 (2003)).
48. There is a rational basis to explain why the result here is not absurd. The legislature intended for the phrase “licensed massage therapist” to be literal or limited to natural persons so as to not penalize a clinic merely because the clinic owner has a massage therapy license — especially where the clinic maintains the licensure status mandated by the statute.9 If not, a claim by physician owned clinic would not be compensable merely because the physician also holds a massage therapy license. Such a result of course is not only absurd and obviously unintended, but also a possible outcome (should such a case arise) if we accept Defendant’s interpretation of the statute.
CONCLUSION
49. In conclusion, the Court finds that Plaintiff’s position is well taken and consistent with the statutory text in § 627.736(1)(a)(5). The statutory exclusion in subsection (1)(a)(5) does not apply whereas here, Plaintiff is not a licensed massage therapist, but instead an incorporated health care clinic licensed under Part X Chapter 400.
50. ACCORDINGLY it is hereby ORDERED & ADJUDGED that Plaintiff’s motion for summary judgment on Count I of the complaint is GRANTED; and that Defendant’s motion for final summary judgment is DENIED. Further, Counts II & III of the complaint where Plaintiff alleges that § 627.736(1)(a)(5), Fla. Stat., (2013) is unconstitutional is moot.
51. This Court hereby enters FINAL DECLARATORY JUDGMENT for the Plaintiff, THERAPEUTIC REHABILIATION CENTER INC., and against Defendant, GEICO INDEMNITY COMANY, declaring
(a) that § 627.736(1)(a)(5) does not apply so as to bar Defendant’s liability for the subject claim at issue;
(b) that Defendant is liable on the policy to the Plaintiff for the medical expenses Plaintiff submitted on behalf of Marisol Martinez arising from the auto accident alleged in the complaint10;
(c) that Plaintiff is entitled to recover reasonable attorney fees and costs from Defendant for successful prosecution of this action pursuant to §§ 57.041 and 627.428, Fla. Stat.
52. This Court shall reserve jurisdiction to tax the reasonable amount of Plaintiff’s attorney fees and costs; and to award Plaintiff damages as supplemental relief incidental to this declaratory judgment pursuant to § 86.061, Fla. Stat.
__________________
1See State v. Brake, 796 So.2d 522, 528 (Fla. 2001) [26 Fla. L. Weekly S608b] (words of common usage are construed by their plain and ordinary sense unless the term is defined by the statute. But in the absence of statutory definition, it is permissible to look at related statutory provisions that define the term.)
2Likewise, the dictionary meaning of massage is consistent the statutory definition found in Chapter 480. Massage is defined by the legislature as
“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. (2013).
3A “clinic” is defined by the legislature as “an entity where health care services are provided to individuals and which tenders charges for reimbursement for such services, including a mobile clinic and a portable equipment provider.” § 400.9905(4), Fla. Stat. (2015).
4See § 627.736(5)(h), Fla. Stat. (2013) (“As provided in s. 400.9905, an entity . . . must be licensed under part X of chapter 400 in order to receive reimbursement under ss. 627.730-627.7405.”); § 400.9905(4)(n), Fla. Stat., (2013) (“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, unless exempted under s. 627.736(5)(h).”)
5See Willens v. Garcia, 53 So.3d 1113, 1117 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D184a] (“One of the fundamental tenets of statutory construction requires courts to give the words of a statute the plain and ordinary meaning usually attributed to them, unless a different meaning or connotation necessarily is implied from the manner or context in which the words are used.”) (emphasis added)
6See e.g., Bloate v. United States, 559 U.S. 196, 206 n.9 (2010) [22 Fla. L. Weekly Fed. S157b]; See also John F. Manning, What Divides Textualists from Purposivists?, 106 Col. L. Rev. 70, 75 (2006) (“modern textualists understand that the meaning of statutory language (like all language) depends wholly on context.”)
7There is a question whether there is a rational basis for the legislature to exclude LMTs from receiving reimbursements for therapies that do not include massage, such as the those rendered in this case — i.e., hot/cold packs, ultrasound, electric stimulation, therapeutic exercises, etc. The classification or exclusion does not seem rational at all when you consider that such therapies are payable when performed by other licensed professionals including unlicensed personnel, but not if they are performed by LMTs. In this specific context, it seems that LMTs were arbitrarily singled out by the legislature.
8Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 454 (Fla.1992) (quoting Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693, 694-95 (1918))
9See §§ 400.9905(4)(n) and 627.736(5)(h).
10Defendant, however, is not liable for bills that correspond to the services being rendered from June 19, 2013 to July 10, 2013. Plaintiff voluntarily withdrew the bills for said dates of service.
