NORTH BROWARD CHIROPRACTIC AND WELLNESS CENTER, INC. a/a/o CRISTINA CORRIDORI v. GOVERNMENT EMPLOYEES INSURANCE COMPANY

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

NORTH BROWARD CHIROPRACTIC AND WELLNESS CENTER, INC.
a/a/o CRISTINA CORRIDORI,
Appellant,

v.

GOVERNMENT EMPLOYEES INSURANCE COMPANY,
Appellee.

No. 4D21-328

[August 11, 2021]

Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; John D. Fry, Judge; L.T. Case No. CONO18-7121,
CACE19-5560.

Michelle J. Kane of Kane Lawyers, PLLC, Delray Beach, and Scott J.
Edwards of Scott J. Edwards, P.A., Boca Raton, for appellant.

Rebecca L. Delaney and Scott W. Dutton of Dutton Law Group, P.A.,
Tampa, for appellee.

PER CURIAM.

Appellant North Broward Chiropractic and Wellness Center, Inc.
(“North Broward”), as the assignee of Cristina Corridori, appeals the
county court’s summary disposition and final judgment in favor of appellee
Government Employees Insurance Company (“GEICO”). The central issue
in this case is whether a personal injury protection (“PIP”) insurer can
apply the policy deductible to bills after adjusting the charges in line with
the applicable fee schedules in 627.736(5)(a)1., Florida Statutes (2018),
see State Farm Mut. Auto. Ins. Co. v. Care Wellness Ctr., LLC, 240 So. 3d
22, 31 (Fla. 4th DCA 2018), or whether section 627.739, Florida Statutes
(2018), requires a PIP insurer to apply the deductible to 100 percent of the
billed expenses, see Progressive Select Ins. Co. v. Fla. Hosp. Med. Ctr. a/a/o
Jonathan Parent, 236 So. 3d 1183, 1192 (Fla. 5th DCA 2018).

In the underlying proceedings, the trial court followed the procedure
approved by this court in Care Wellness, which conflicted with the Fifth
District’s decision in Progressive Select. During the pendency of these
proceedings, the Florida Supreme Court approved the Fifth District’s
calculation method:

Section 627.739(2) requires the deductible to be subtracted
from “100 percent” of expenses and losses, not 75% of a
provider’s customary charges. We therefore hold that, when
calculating the PIP benefits due an insured, the deductible
must be subtracted from the total medical charges before
applying the reimbursement limitation in section
627.736(5)(a)1.b. Accordingly, we approve Progressive and
disapprove Care Wellness.

Progressive Select Ins. Co. v. Fla. Hosp. Med. Ctr., 260 So. 3d 219, 226 (Fla.
2018).

GEICO asserts that this court is limited in its ability to review the trial
court’s grant of summary disposition for GEICO because there is no
transcript of the pre-trial conference proceeding wherein that ruling was
made. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150,
1152 (Fla. 1979). GEICO also notes that the trial court’s order denying
North Broward’s motion for rehearing contains no reasoning. However,
the Explanation of Review (“EOR”) documents GEICO submitted at trial,
which are part of the record on appeal, show that it applied the fee
schedule authorized by section 627.736(5)(a)1.f. to North Broward’s total
charges and then applied Corridori’s $500.00 PIP deductible. This is the
procedure disapproved by the Florida Supreme Court in Progressive Select,
260 So. 3d at 226. Accordingly, the error in this case is apparent on the
face of the record. See Dean v. Rutherford Mulhall, P.A., 16 So. 3d 284,
286 (Fla. 4th DCA 2009).

We reverse the final judgment and remand for the trial court to
calculate the PIP benefits due as provided by the Florida Supreme Court
in Progressive Select, 260 So. 3d at 226.

Reversed and remanded with instructions.

KLINGENSMITH, KUNTZ, and ARTAU, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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