7 Fla. L. Weekly Supp. 661a
Insurance — Personal injury protection — Insurer is not required to obtain written report of physician licensed under same chapter as insured’s medical provider before paying amount less than that billed by medical provider on ground that charges exceeded usual and customary charges — Section 627.736(5), rather than sections 627.736(1)(a) or 627.736(7), applies where insured’s medical condition is not at issue — Court recedes from its prior ruling in Progressive Speciality Insurance Company v. Biomedical Trauma Association, Inc., to extent it conflicts with ruling in instant case
State Farm Mutual Automobile Insurance Company, Appellant, vs. Rickey Lockett, D. O. as Assignee of Jessica Hope, Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Appeal Case No. 00-236. County Case No. 99-14132 CC, Division X, Panel H, J, A. Opinion filed July 11, 2000. Counsel: Robert Oxendine and Gerard P. Duignan, Tampa. Wendy Coxhead, Tampa. Anthony Britt, Tampa.
(Moody, Judge.) This matter is before the Circuit Court for Hillsborough County on appeal from the County Court for Hillsborough County, having been filed January 5, 2000. The order appealed from is a summary judgment entered in favor of Appellee Rickey Lockett, D.O. (Plaintiff below) on December 7, 1999. The appeal was timely filed, and this Court has jurisdiction.
The facts are undisputed. Rickey Lockett, D.O., Appellee herein, accepted an assignment of benefits from Jessica Hope on her State Farm Automobile Insurance policy PIP benefits to provide treatment for injuries sustained in an automobile accident on June 1, 1998. Lockett provided treatment to the insured, billing State Farm for his services. Thereafter, State Farm issued payment to Lockett for an amount somewhat less than that billed by Lockett. State Farm based its reduction on the ground that the charges exceeded the usual and customary charges for medical services in the geographic region where the services were rendered. Dr. Lockett sued State Farm for the balance.
On August 27, 1999, Lockett filed a Motion for Summary Judgment. On November 17, 1999, the trial court heard argument on Lockett’s Motion for Summary Judgment. The court then issued an order dated December 7, 1999, holding that it was improper for State Farm to pay less than the full amount without first obtaining the written report of a physician licensed under the same chapter as the insured’s treating physician. However, the trial court also certified the following question to the Second District Court of Appeals:
In a claim for personal injury protection benefits disputing the amount charged by the treating physician, is it a condition precedent pursuant to F.S. 627.736(7)(a), that the insurer first obtain a report from a physician licensed under the same chapter as the treating physician, stating that the charge is excessive?
The Second District Court of Appeals declined jurisdiction and transferred this appeal to the Circuit Court on January 24, 2000. The appeal was timely filed in the Second District.
In his Motion for Summary Judgment, Lockett successfully argued that pursuant to Section 627.736(7)(a), Florida Statutes, and United Automobile Insurance Company v. Viles, 726 So.2d 320 (Fla. 3d DCA 1998), an insurer may not pay less than the full amount of a submitted medical bill without first obtaining the written report of a physician licensed under the same chapter as the insured’s treating physician. State Farm countered that Viles does not apply because the insurer in Viles disputed, among other things, the relationship of the injuries to the covered incident. That is, the insured’s medical condition was at issue, requiring that court to apply Section 627.736(7)(a), Florida Statutes. Here, neither the insured’s medical condition nor the necessity or reasonableness of the treatment is at issue, rather, only the reasonableness of the fees charged for services rendered is at issue. Appellant asserts that this scenario requires this Court to apply Section 627.736(5)(a), which does not require the insurer to obtain a report of a physician licensed under the same chapter as that of the treating physician, rather than subsection (7)(a), which does require the report. In short, Appellant argues that the trial court applied the incorrect law.
If Section 627.736(7)(a), Florida Statutes, applies in a situation where only the amount of a charge is challenged, there is no apparent application for section 627.736(5)(a), Florida Statutes, which provides that medical service providers charge only a reasonable amount for their services and which does not require an insurer to obtain a report of a fellow provider for disputes thereunder. This fact makes Appellant’s position persuasive. The instant case involves an adjustment as to the amount of the bill only, based upon its reasonableness for the services rendered, and whether the charges were usual and customary. Neither party asserts that the insured’s medical condition was at issue, nor that the treatment was not reasonable, related, or necessary for the insured’s condition. Thus, it would appear, based upon strict construction of the statute that Section 627.736(5), rather than subsections (1)(a) and (7) apply to the facts of this case.
Appellee argues that this court is bound by Judge Moody’s decision in Progressive Specialty Insurance Company v. Biomedical Trauma Association, Inc., Appeal no.: 99-6125 (Fla. 13th Jud. Cir. March 13, 2000) [7 Fla. L. Weekly Supp. 389a]. Indeed, a circuit court in its appellate capacity is obligated to consider all decisions of the circuit court when searching for precedent upon which to base its decision. In the absence of a rule of procedure to resolve conflicts among decisions, the Circuit Court must make an independent decision. State v. Lopez, 633 So.2d 1150 (Fla. 5th DCA 1994). Thus, this court can certainly revisit a prior decision and make any adjustments that may be necessary.
Although Appellee appropriately cites Judge Moody’s holding in Progressive, which appears on its face to resolve the issues currently pending before this Court, it must be clarified that it was argued solely on the basis of Section 627.736(7). A comparison to Section 627.736(5) was not argued before the Court; however, when the two subsections are compared, it is clear that subsection (5), specifically subsection (5)(a), applies to the facts in this case, where the insured’s condition is not at issue. To the extent that the holding in Progressive conflicts herewith, we recede from Progressive.
Case law is not illuminating on the issue; although the parties attempt to make case law fit their respective positions, there is no holding in the Second DCA nor in any of its sister district courts of appeal that addresses the situation in which the excessiveness of the charges only is the issue. Although Viles seems to be the case of the moment, it is clear from a reading thereof that the contention over benefits arose because of a dispute as to the causation of the insured’s medical condition, that is, whether it was related to a covered incident, an important fact that is notably absent herein. That point is not disputed. The language in the Viles opinion uses the word “reduce”, however, it does appear to be a case of imprecision on the part of the court. As stated above, any other interpretation would give no effect to the legislature’s intent set forth in section 627.736(5)(a), Florida Statutes. It is this Court’s opinion that Viles does not apply to the facts of this case.
Appellee also argues that Appellant failed to file an appropriate record, having failed to file a transcript of proceedings. However, the question before the court, being one of law only, can be acted upon with the material submitted. That is, a transcript of the proceedings, or a factual basis, is not necessary for this court to completely resolve the issue before it. The record must contain all of the materials necessary for a decision on the merits. Conner v. Coggins, 349 So. 2d 780 (Fla. 1st DCA 1977). An appellate court can review the merits of an order in the absence of a record if the facts were not in dispute or if the order contained sufficient findings of fact. Here, the decision of the lower court was to grant a summary judgment. The dispute between the parties is one of law, not fact. The absence of an adequate record might not prevent a reversal if the issue presented is a pure issue of law. Pape v. Pape, 444 So. 2d 1058 (Fla. 1st DCA 1984).
We therefore REVERSE the judgment of the lower court and remand for further proceedings consistent with this opinion. (Judges Ward and Arnold concur.)
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