7 Fla. L. Weekly Supp. 688a
Insurance — Personal injury protection — Insurer’s motion for summary judgment on claim for payment of MRIs performed on insured by agent of corporate person denied — Assertion that first sentence of Section 627.736(5) establishes standing requirement for presentation of valid PIP claims misapplies effect of words in that sentence — Nothing in Florida law requires licensure of corporate person to provide medical services through use of agent, nor is there any evidence in record that indicates that services performed by corporate person or its agent were unlawful or unlawfully rendered
PATRICIA DEL VALLE, Individually, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois corporation, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 99-13214 COCE 54. June 20, 2000. Zebedee W. Wright, Judge. Counsel: Charles Flaxman; Patricia S. Sechan.
ORDER DENYING SUMMARY JUDGMENT
THIS CAUSE having come before this Honorable Court on Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY’s, Motion for Summary Judgment, and the Court having heard argument of counsel and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. PATRICIA DEL VALLE (hereinafter “DEL VALLE”) was injured in an automobile accident which occurred on February 3, 1999.
2. Thereafter, DEL VALLE sought treatment with a chiropractor, Dr. Michael Surdis.
3. As a result of certain findings on clinical examination by Dr. Michael Surdis, Dr. Surdis, as the agent of DEL VALLE and as her treating physician, ordered MRIs of DEL VALLE’s neck and back hiring the services of MRI Imaging of Broward, Inc. (hereinafter “MRI Imaging”).
4. MRI Imaging contracted with Open Magnetic Imaging of Pembroke Pines (hereinafter “OMI”) and obligated itself to pay $400.00 for each scan ordered. That obligation was not shown to be conditioned on the eventual receipt of payment from STATE FARM or anyone else. Nothing in the record shows any contractual relationship between OMI and DEL VALLE.
5. MRI Imaging arranged for the two MRIs to be performed on DEL VALLE pursuant to its contract with OMI.
6. The MRIs were done on 04/03/99 by OMI. MRI Imaging billed Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, $1,800.00 per scan. MRI Imaging assumed a legitimate business risk in performing its services and is entitled to a profit for same. Article 1, §2, the Florida Constitution.
7. STATE FARM insured DEL VALLE and pursuant to its contract with DEL VALLE, agreed to pay 80% of all services which were reasonable, related, necessary. STATE FARM’s assertion that the first sentence of F.S. §627.736(5) establishes a standing requirement for presentation of a valid PIP claim misapplies the clear and unambiguous effect of the words in that sentence. Those words merely relieve an insurer from its obligation to pay its contracting insured or omnibus insured if the endorsement appears on the claim form. The Florida Supreme Court has recently observed that this sentence created no new standing to sue and that assignees of PIP claims derived their standing to sue from the common law of assignments. Nationwide Mutual Ins. Co. v. Pinnacle Medical, Inc., 753 So.2d 55 (Fla. 2000). The only pertinent provision relating to the status of persons rendering services included in a claim is the following portion of F.S.§627.736(5)(d):
No statement of medical services may include charges for medical services of a person or entity that performed such services without possessing the valid licenses required to perform such services.
There has been no showing or allegation that any person involved in the creation of the MRIs or the interpretation of them “performed such services without possessing the valid licenses required to perform such services”.
Health testing services are addressed in Chapter 483 of the Florida Statutes. Provision is made for regulation of clinical laboratories, multiphasic health testing centers and cholesterol screening centers. There is nothing about an MRI, a noninvasive procedure, that suggests it falls within the definitions of the activities of those centers regulated by Chapter 483.
8. There is no evidence in the record of patient brokering, kick backs or bribes.
9. There is no violation of F.S. §817.505 nor does said statute apply to PIP Claims. Specifically, F.S.§817.505(3)(a) and (c) expressly exclude all circumstances other than those applications for payments or benefits made in connection with a “Federal program” as defined in the federal legislation cited in the Florida provision. There is no evidence that the Defendant’s No-Fault insurance policy is a “Federal program” as so defined. This legislation is clear and unambiguous. A court has no authority to stretch the meaning of the words chosen by the legislature to reach contractual undertakings expressly excluded by the legislature.
Even if the Court were to find the language ambiguous, which it has not, the Court is not free to ignore the provisions of F.S.§817.505(3)(a) and (c) and adopt the meaning ascribed by STATE FARM. This is a criminal statute. All doubts about its meaning must be resolved in favor of the accused. Thompson v. State, 695 So.2d 691(Fla. 1997) (where a criminal statute is susceptible of more than one interpretation, the court must apply the interpretation that favors the accused). The Florida Constitution requires a certain precision defined by legislation, not legislation articulated by the judiciary. Brown v. State, 358 So.2d 16 (Fla. 1966).
It appears that the construction of this law and of the first sentence of F.S.§627.736(5) vied for by STATE FARM clearly invites this Court to legislate which is not its function. Article 2, §3, the Florida Constitution.
10. OMI and MRI Imaging are at liberty to contract with each other as aforementioned. This is a constitutionally protected right pursuant to Article 1, §2 of the Florida Constitution and the Fourteenth Amendment to the Constitution of the United States. The mere fact that MRI Imaging utilizes OMI as its agent for the performance of a portion of the work, or even almost all the work, does not alter the fact that OMI has not contracted with DEL VALLE and that MRI Imaging has.
11. Additionally, Defendant, STATE FARM, has failed to raise as an affirmative defense violation of F.S. §817.505 and cannot move for summary judgment on an issue not preserved by the pleadings.
12. The Court has found nothing in Florida Law that requires licensure of MRI Imaging, a corporate person, to provide an MRI through the use of OMI, nor is there any evidence in the record that indicates that the services performed by MRI Imaging or OMI were unlawful or unlawfully rendered.
13. After reviewing Defendant’s Motion for Summary Judgment and Plaintiff’s Memorandum of Law and its Response to Defendant’s Motion for Summary Judgment, the pleadings, sworn testimony and affidavits and having reviewed same in the light most favorable to the Plaintiff, DEL VALLE,
IT IS HEREBY ORDERED AND ADJUDGED that Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY’s Motion for Summary Judgment is hereby DENIED.
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