9 Fla. L. Weekly Supp. 415a
Insurance — Personal injury protection — Dispute between medical provider and insurer — Insurer that sold non-PPO policy to insured was not prohibited by section 627.736(10) from agreeing directly or indirectly with medical provider for rate below reasonable and normal rate where insured was not limited in choice of provider
ST. LUCIE REHAB & THERAPY, Inc., d/b/a EAST PORT CHIROPRACTIC, P.A. as assignee of Lori Cassinari, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 19th Judicial Circuit in and for St. Lucie County. Case No. 02 CC 412. April 16, 2002. Thomas J. Walsh, Jr., Judge.
ORDER DENYING PLAINTIFF’S SECOND MOTIONFOR PARTIAL SUMMARY JUDGMENT/COUNTI AND II FOR DECLARATORY RELIEF
THIS CAUSE, having come on for hearing a second time, after both parties have agreed that the necessary discovery as to the related issues have been completed and the Court considering the eleven volumes and thousands of documents filed by the plaintiff and the plaintiff’s and defendant’s motions, answers, replies, memoranda, supporting case law and the legal arguments proffered at hearing on March 28, 2002, the Court finds:
1. Plaintiff, assignor, Lori Cassinari (the insured), assigned the benefits of a P.I.P. policy with Defendant, Progressive Express Insurance Company, to plaintiff, assignee, St. Lucie Rehab and Therapy, Inc., d/b/a East Coast Chiropractic, P.A. (The medical provider). The policy is not a preferred provider policy. That is, Progressive sold and the insured purchased a non-PPO policy as is contemplated under F.S. 627.736(1).
2. Insured was injured in an automobile accident. Insured sought medical treatment with assignee, the medical provider, plaintiff. Insured received the medical treatment. The Medical Provider billed the defendant, the defendant paid the medical provider less than 80% of the established reasonable norm, but did pay exactly what the medical provider had agreed to be paid via a third party contract with a non-party to this suit named “Beech Street”.
The medical provider accepted the checks and cashed them. The medical provider did not object at the time of payment. The medical provider did not and has not alleged a breach of contract between themselves and Beech Street.
3. The facts and arguments are set out in Plaintiff’s Memorandum of Law and Defendant’s response. The crux of the plaintiff’s suit is essentially that Defendant, when selling a non-PPO policy is prohibited by F.S. 627.736(10) from agreeing directly or indirectly with any medical provider for a rate below the reasonable and normal rate. In other words, plaintiff argues, F.S. 627.736(10) provides the exclusive means by which an insurance company can contract to pay any other rate (PPO rates or lesser rates or higher rates or any other contracted rate) for any patient receiving any care from any medical provider for an injury from an auto accident for any time past, present or future. The plaintiff cites several cases in support of the Motion for Summary Judgment. See Barnes Family Chiropractic, as assignee for Jessica Mann v. Metropolitan Property, (Volusia County Court, No 2001-11775 COD6/filed March 22, 2002) where Judge John Roger Smith has apparently followed Judge Herring in Fishman and Stauhak, M.D. v. Progressive Bayside Insurance Company, (Broward County Court, October 24, 2001) and Judge Skolnick in Fishman and Stauhak v. Progressive Bayside Insurance Co., (9 FLW Supp. 64b, October 23, 2001). This Court cannot accept the premise that F.S. 627.736(10) prohibits any and all medical providers from contracting a different rate with any and all insurance providers on any non-PPO P.I.P. related service or injury. To suggest such a premise is contrary to any sense of free enterprise. Such an interpretation is also in violation of any due process or equal protection premise. Moreover, it completely disregards sections 627.736(1), (2), (3), (4), (5), (6), (7), (8) and (9).
The aforementioned cases rule that F.S. 627.736(10) provides the exclusive means by which to pay preferred provider rates. The rationale being that to rule contrary would allow an insurance company to circumvent the No Fault Statute and avoid giving an insured a discount on PPO policies while making a lower payment to the medical provider.
This Court respectfully disagrees for a number of reasons.
The case at bar does not involve a PPO policy and the plaintiff was not limited to a preferred provider.
The insured is not a party to this contractual agreement between the medical provider and Beech Street. The insured contracted with her insurance company to provide a certain amount of coverage. The insurance company has not failed to provide the insured’s limits. In fact, the insurance company contracted, at the benefit of their insured to receive more medical treatments for her limits. The insured elected to purchase a non PPO policy. She contracted, at a higher premium rate, so that she could go to the medical provider of her choice and receive the benefits of the P.I.P. statute, not just the limitations under section (10). She attended the medical provider of her choice. She received the benefits of the services from the medical provider and the doctor received exactly what he contracted for. Moreover, the medical provider accepted the payments and deposited the checks he was paid. The primary purpose of the P.I.P. statute is consumer protection, and provide equal footing for each insured. It was not intended to be utilized to negate a contract between a medical provider and an insurance company via a patient’s non-PPO P.I.P. assignment.
Here, the insured is and has been protected. The medical provider, unrelated to the insured’s contract with the insurance company, agreed to accept a specific sum. Here, the insured receives more services for her insurance dollar not less. In our great country, our laws and this statute should not be interpreted to prohibit contracts between two equal and independent entities. Certainly, the P.I.P. statute is not intended to prevent free commerce.
4. The Court specifically follows Judge Wild’s logic in Autrey v. Hartford Insurance Company, (8 FLW Supp. 802(a), July 16, 2001) wherein Judge Wild granted the defendant’s Motion for Summary Judgment and held:
The agreement [between the medical provider and the non-party contracting] is not a preferred provider agreement contemplated by Section 627.736(10), Florida Statutes. The agreement is a negotiated fee schedule to be used if an insured of defendant used [the medical provider’s] services. This is no different than an insurance company negotiating a fee to pay after the service has been rendered. The goal is to reduce the money disbursed by the insurance company and preserve the benefits available to the insured. The fact that the negotiations are done beforehand, as opposed to after-the-fact should not render the agreement void. The insured is not required to use any particular provider, and is not penalized by using a provider that is not one [under contract]. The fact that the plaintiff chose to use [the contracted provider] was a fortuitous choice that worked to her benefit.
The logic in Autrey is inescapable. The only way to provide a PPO policy in Florida is to follow Section 627.736(10). This suit does not involve a PPO policy. This section does not dictate specific rates for specific services.
Herein, the facts are without dispute. The insured was free to choose a provider for her medical services. The provider agreed to be paid certain fees by the insurer for the medical services rendered to the plaintiff. The insurer paid in full, those agreed upon fees.
Therefore, it is
ORDERED AND ADJUDGED
The Plaintiff’s Second Motion for Summary Judgement as to Counts I and II for Declaratory Relief is DENIED.
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