9 Fla. L. Weekly Supp. 64a
Insurance — Personal injury protection — Preferred provider rates — Provisions of section 627.736(10) provide the exclusive means by which an insurer can pay PPO rates on Florida PIP coverage — Insurer that failed to negotiate and enter into contracts directly with licensed health care providers, failed to offer both a PPO and a Non-PPO policy at the time the insured purchased policy, and failed to offer the insured the election to have a PPO endorsement in her policy failed to meet requirements of statute — Alternatively, no PPO contract exists between plaintiff health care provider and purported PPO network administrator
FISHMAN AND STASHAK, M.D.’S, P.A. d/b/a GOLD COAST ORTHOPEDICS also d/b/a GOLD COAST ORTHOPEDICS AND REHABILITATION (Suzanne Portz), Plaintiff, v. PROGRESSIVE BAYSIDE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 01-11729 COCE 53. October 24, 2001. William W. Herring, Judge. Counsel: Laura M. Watson, Watson & Lentner, Ft. Lauderdale. Rachel P. Ray.
ORDER ON PLAINTIFF’S MOTION FORPARTIAL SUMMARY JUDGMENT
THIS CAUSE having come on to be heard on October 17, 2001 on Plaintiff’s Motion for Partial Summary Judgment and the Court having reviewed the Motion and being otherwise advised in the Premises, it is hereupon,
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Partial Summary Judgment as to Count I for Declaratory Relief is hereby granted and this Court finds that the provisions of Section 627.736(10), Florida Statutes, provide the exclusive means by which an insurance company can pay preferred provider rates (PPO rates) on Florida personal injury protection automobile coverage. To rule otherwise would allow the insurance company to do an end around the No Fault Statute and avoid giving the insureds discounts on policies with PPO endorsements yet make payments to the health care provider at lower PPO rates. The permissive language in the statute presupposes the insurance company has followed the four requirements of 627.736(10).
In this case, the first two requirements were not met, in that, the insurer failed to negotiate and enter into contracts directly with licensed health care providers and the insurer failed to offer both a PPO and Non-PPO policy at the time the insured purchased the policy and failed to offer the insured the election to have a PPO endorsement in her policy.
The Court further finds that the word “may” in subsection (10) of the statute is a word of empowerment that an insurer may enter into PPO arrangements if they follow the requirements of F.S. 627.736(10) under the doctrine of “Expressio Unius Est Exclusio Alterius.”
Alternatively, the Court rules that no such PPO contract exists between the Plaintiff Health Care Provider and Beech Street Corporation, the purported PPO Network administrator. The Defendant has had ample opportunity to conduct discovery in terms of issuing a Notice of Production of Non-Party Subpoena directed to Beech Street Corporation to obtain the contract and they have not done so. This is true in the other cases in this division between the same Plaintiff and Defendant or other Progressive Insurance Companies. In those other cases, no Notice of Production of Non-Parties subpoenas were utilized by the Defendant to obtain the relevant contracts when acquiring these contracts would benefit the Defendant and Beech Street Corporation.
Subordinately, no discovery requests were issued in this case by the Defendant to the Plaintiff regarding whether the Plaintiff provider is in possession or has knowledge of such a contract. Even a Motion for Protective Order regarding the deposition of the Plaintiff in other cases would not prevent the Defendant from sending Request for Admissions and Request for Production which was not done by the Defendant in this case.
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