9 Fla. L. Weekly Supp. 775a
Insurance — Personal injury protection — Preferred provider rates — Section 627.736(10) provides the exclusive means by which an insurer can contract to pay PPO rates on Florida PIP claims — Assignee’s motion for partial summary judgment granted as to affirmative defenses based on alleged PPO contract where insurer failed to enter into contract directly with assignee, failed to provide an option to insured to use a PPO policy, and failed to provide insured with a current roster of preferred providers in the county where she resided at the time of purchase of the PIP policy
KIRKMAN CHIROPRACTIC, P.A., as assignee of JENNIFER T. BOYETTE, Plaintiff, v. NATIONWIDE ASSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. SCO-01-11900, Division 71: P.I.P. August 26, 2002. C. Jeffery Arnold, Judge. Counsel: Alan Cooper, Fowler, White, Boggs, Bankers, P.A., Tampa. Terry A. Slusher, Seifert, Miller, Slusher & Landerman, LLC, Orlando.
ORDER GRANTING PLAINTIFF’S MOTIONFOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on the 17th day of June, 2002, on Plaintiff’s Motion for Partial Summary Disposition, and the Court having reviewed the pleadings and other filings herein, having reviewed the record evidence, having heard argument of counsel, and being otherwise duly appraised of the premises, the Court finds that:
FACTS
The following undisputed facts were established through pleadings, discovery or stipulation for purposes of the hearing: At the time of her automobile accident on October 25, 2000, Jennifer T. Boyette (the “Insured”) was insured by the Defendant, Nationwide Assurance Company (“Nationwide”) with a policy which provided the mandated Personal Injury Protection (“PIP”) insurance coverage in accordance with the provisions of §627.736(10), Florida Statutes. The insured sought medical treatment from the Plaintiff, Kirkman Chiropractic, P.A., and executed a valid assignment of benefits in favor of Kirkman Chiropractic, P.A.
Nationwide paid a portion of the bill, less than 80%, claiming that it was entitled to reduce the amount paid on the basis of an agreement between Nationwide and CCN and an agreement between CCN and Kirkman Chiropractic, P.A.
Nationwide did not enter into a preferred provider contract directly with Kirkman Chiropractic, P.A., nor did it offer to its Insured the option to use a preferred provider at the time she purchased her policy. Finally, Nationwide did not provide Insured with a current roster of preferred providers in the county in which Insured resided at the time she purchased her policy. Nationwide did not offer its insured a choice between a preferred provider policy and a non-preferred provider policy.ISSUE
The issue before the Court is whether Nationwide was required to comply with the provisions of §627.736(10), Florida Statutes, in order to take preferred provider reductions in the payment of PIP benefits for medical services rendered to Insured by Kirkman Chiropractic, P.A.
FINDINGS
1. Florida Statute §627.736(10) provides the exclusive means by which an insurer may pay reduced preferred provider rates for PIP medical benefits. The plain language of §627.736(10), Florida Statutes is clear and unambiguous, and requires payment of benefits in accordance with §627.736(1)(a), Florida Statutes, unless an insured elects to use a “preferred provider” as defined by §627.736(10), Florida Statutes. The Plaintiff, Kirkman Chiropractic, P.A., is not a “preferred provider”, and the Defendant, Nationwide, is required to pay PIP insurance medical benefits equal to eighty percent (80%) of all reasonable expenses for medically necessary medical services provided by Kirkman Chiropractic, P.A. to Insured.
2. Use of the word “may” by the legislature does not make §627.736(10) permissive. Rather, use of the word “may” in subsection (10) of the statute is a word of empowerment that an insurer may enter into PPO arrangements if “ . . . the requirements of this subsection are met.” Under the principle of expressio unius est exclusio alterius, the mention by the legislature of this one way to access reduced PPO rates implies the exclusion of any other way. The Defendant, Nationwide, failed to comply with the requirements of §627.736(10), Florida Statutes, in that it failed to enter into a contract directly with Kirkman Chiropractic, P.A., failed to provide an option to Insured to use a preferred provider policy, and failed to provide Insured with a current roster of preferred providers in the county in which Insured resided, at the time of purchase of the PIP policy. Therefore, Nationwide cannot take preferred provider reductions in the payment of PIP benefits for medical services rendered to Insured by Kirkman Chiropractic, P.A. To find otherwise would allow Nationwide to do an end-around the No-Fault Statute.
3. The insurance policy between Nationwide and Insured, in accordance with the Florida Motor Vehicle No-Fault Law, requires Nationwide to pay “ …80% of reasonable expenses incurred for necessary medical, surgical, x-ray, dental, ambulance, hospital, professional nursing, and rehabilitative services.”
4. The Court finds no merit in the defenses raised by the Defendant, Nationwide. By virtue of the assignment of benefits from Insured, Kirkman Chiropractic, P.A. stands in the shoes of Nationwide’s insured, and has standing to bring a claim for Nationwide’s failure to comply with the requirements of §627.736(10), Florida Statutes. The provisions of §627.736(10), Florida Statutes, do not unreasonably impair or restrict Nationwide’s freedom to contract. Finally, the deposition testimony of Daniel Y. Sumner, Esquire, Senior Executive for External and Regulatory Affairs of the Department of Insurance, submitted in opposition to the Plaintiff’s Motion for Partial Summary Disposition, is not persuasive. Without ruling on the Plaintiff’s objections to the use of deposition testimony from an unrelated case, which may be factually distinguishable, the court finds that the clear and unambiguous language of the statute does not require reliance on the other principles of statutory construction to determine the legislative intent, and therefore is not aided by agency interpretation in an unrelated case.
THEREFORE, it is thereupon ORDERED AND ADJUDGED as follows:
5. That Plaintiff’s Motion for Partial Summary Disposition is hereby GRANTED.
6. Defendant, Nationwide Assurance Company, shall pay the Plaintiff, Kirkman Chiropractic, P.A., eighty percent (80%) of the reasonable charge for necessary medical services rendered to Jennifer Boyette by Kirkman Chiropractic, P.A. Nationwide may raise the issue of reasonableness of the amount billed by Plaintiff for medical services but may not utilize the PPO pricing in evidence.
7. This Court reserves jurisdiction to tax attorney’s fees and costs pursuant to §627.428, Florida Statutes.
8. Recognizing that hundreds of similar lawsuits are currently pending in Orange County and other counties within this District, the possibility of inconsistent rulings between judges, and the lack of any appellate ruling on this issue, the Court hereby certifies the following question to the Fifth District Court of Appeal as a matter of great public importance:
IS AN INSURER REQUIRED TO COMPLY WITH THE PROVISIONS OF SECTION 627.736(10), FLA. STAT. (1998) IN ORDER TO TAKE PREFERRED PROVIDER REDUCTIONS IN THE PAYMENT OF PIP BENEFITS FOR MEDICAL SERVICES RENDERED TO ITS INSUREDS?
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