9 Fla. L. Weekly Supp. 723b
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 there is no evidence that insurer strictly complied with statute
NORTHWEST BROWARD ORTHOPAEDIC ASSOCIATES, as assignee for Wendy Resnick, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 01-018626 COCE (54). August 20, 2002. Zebedee W. Wright, Judge. Counsel: Cris E. Boyar, for Plaintiff. Suzanne Rosen, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR PARTIAL SUMMARY JUDGMENT
This matter coming on to be heard on August 14, 2002, upon the Plaintiff’s Motion for Partial Summary Judgment, and the Court having heard argument of counsel, and being otherwise fully advised in the premises, finds as follows:
1. The Plaintiff filed suit for PIP benefits. The Defendant filed an answer and affirmative defenses. The Plaintiff has filed a Motion for Partial Summary Judgment as to Affirmative Defenses numbered 8 (mitigation/arbitration due to Beech Street), 9 (failure to join an Beech Street as indispensable party), 10 (lack of standing due to the Beech Street Contract), and 11 (Beech Street itself) which allege the Defendant is entitled to make certain reductions due to an alleged PPO contract by and between Beech Street Corporation and the Plaintiff and Progressive Express Insurance Company.
2. The Plaintiff argues there is no record evidence to support the Defendant’s position that it is entitled to take advantage of F.S. 627.736(10) because this statute must be strictly complied with and there is no evidence the Defendant has strictly complied with this statute in this case. The Plaintiff also relies on this court’s prior ruling in the case of Fishman v. Progressive Bayside Insurance Co., Case number 01-12275 (COCE 54), (Fla. Broward Cty Court 2001) and the following other cases from Broward County: Ice v. Progressive Bayside Insurance, 8 Fla. L. Weekly Supp. 262 (Fla. Broward Cty Court 2001) where Judge Herring ruled an insurer cannot use Med View as a buffer to avoid the mandate of the Statute and the insurer must pay the bill at 80%. Fishman v. Progressive, 9 Fla. L. Weekly Supp. 64 (Fla. Broward Cty Court 2001, Judge Herring); Fishman and Stashak v. Progressive, 9 Fla. L. Weekly Supp. 64 (Fla. Broward Cty Court 2001, Judge Skolnik), Ortho Associates v. Nationwide, 9 Fla. L. Weekly Supp. [63] (Fla. Broward Cty Court 2001). Other County Court cases which address this issue include Davis v. Nationwide Mutual Fire Insurance Co., 8 Fla. L. Weekly Supp. 846 (Fla. Hillsborough Cty Court 2001); Dr. Shebovsky d/b/a South Orange Chiropractic Center v. Peachtree Casualty Insurance Co., 8 Fla. L. Weekly Supp. 246 (Fla. Orange Cty Court 2000); Lanzisera v. Progressive, 9 Fla. L. Weekly Supp. 63 (Fla. Manatee Cty Court 2001).
3. The Court agrees and finds as a matter of law that the provisions of Section 627.736(10) provide the exclusive means by which an insurer can contract to pay Preferred Provider rates on Florida PIP auto claims and there is no evidence the Defendant has strictly complied with this statute. The Court also finds the above cases to be well reasoned and persuasive.
4. Accordingly, it is, hereby ORDERED AND ADJUDGED that the Plaintiff’s Motion for Partial Summary Judgment as to the Defendant’s affirmative defenses numbered 8, 9, 10, and 11 is hereby granted.
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