IN THE FLORIDA SUPREME COURT

IN THE FLORIDA SUPREME COURT STATE FARM MUTUAL ) AUTOMOBILE INSURANCE ) COMPANY, ) ) Petitioner, ) ) Fla. S.Ct. Case No. SC06-1006 vs. ) ) Fla. 2d DCA Case No. 2D05-491 CLEARVIEW IMAGING, L.L.C., ) d/b/a, CLEARVIEW OPEN MRI, ) as assignee of Yvonne L. Finch, ) individually, and on behalf of ) all those similarly situated, ) ) L.T. Case No. 03-4173 Respondent. ) ) ) ON DISCRETIONARY REVIEW FROM THE FLORIDA SECOND DISTRICT COURT OF APPEAL RESPONDENT'S AMENDED ANSWER BRIEF ON JURISDICTION, PURSUANT TO ORDERS DATED 7/25/06 AND 12/22/06 David M. Caldevilla, de la Parte & Gilbert, P.A. P.O. Box 2350, Tampa, Florida 33601-2350; Telephone: (813)229-2775 J. Daniel Clark, Clark & Martino, P.A., 3407 W. Kennedy Blvd., Tampa, Florida 33609, Telephone: (813)879-0700 Scott R. Jeeves, The Jeeves Law Group, P.A., 954 First Ave. North, St. Petersburg, Florida 33705; Telephone: (727)894-2929 COUNSEL FOR RESPONDENT

TABLE OF CONTENTS Page TABLE OF AUTHORITIES...ii STATEMENT OF CASE AND FACTS...1 SUMMARY OF THE ARGUMENTS...4 ARGUMENTS I. THE SECOND DISTRICT DID NOT EXPRESSLY DECLARE THE STATUTE VALID...4 II. III. NO CONFLICT WITH OTHER APPELLATE DECISIONS...5 THE AMENDED AMICUS BRIEF IS IMPROPER.....9 CONCLUSION... 10 CERTIFICATE OF SERVICE... 10 CERTIFICATE OF COMPLIANCE... 10 DISTRICT COURT'S OPINION Appendix i

TABLE OF AUTHORITIES Citations to case law: Page Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla.1995) 10 Bush v. Holmes, 919 So.2d 392, 405 (Fla.2006)...5 City of Miami v. McGrath, 824 So.2d 143, 146 (Fla.2002)...5 Clearview Imaging LLC v. State Farm Mut. Auto. Ins. Co., 932 So.2d 423 (Fla.2d DCA 2006)(the "Opinion")... 1-4, 9 Fair v. State Farm Mut. Auto. Ins. Co., 11 Fla. L. Weekly Supp. 863c (Fla.7th Cir. July 15, 2004)...9 Florida Dept. of State v. Martin, 916 So.2d 763 (Fla.2005)...4 Golf Channel v. Jenkins, 752 So.2d 561 (Fla.2000)...8 Harrell's Candy Kitchen, Inc. v. Sarasota-Manatee Airport Auth., 111 So.2d 439 (Fla.1959)...4 Ivey v. Chicago Ins. Co., 410 So.2d 494, 497 (Fla.1982)...9 Millennium Diagnostic Imaging Center, Inc. v. Security National Ins. Co., 882 So.2d 1027 (Fla.3d DCA 2004)... 3, 8 Premier Open MRI, LLC v. Progressive Express Ins. Co., 2005 WL 1077722 (Fla.13th Cir. Ct. April 18, 2005)... 3, 9 State ex rel. Szabo Food Serv. Inc. of N.C. v. Dickinson, 286 So.2d 529, 531 (Fla.1973)...8 ii

Woodgate Development Corp. v. Hamilton Inv. Trust, 351 So.2d 14 (Fla.1977)...2 Citations to federal statutes: 42 USC 1395w-4(b)(1) and(d)(1)(e)(i)...2 42 USC 1395w-4(f)(3)(A)...2 Citations to Florida Constitution: Art. V, 3(b)(1), Fla. Const....5 Art. V, 3(b)(3), Fla. Const.... 4, 5 Art. V, 3(b)(3), Fla. Const.... 10 Citations to Florida Statutes: 627.736(5), Fla. Stat. (2000)...1 627.736(5)(b)5, Fla. Stat. (2001)...1-8 627.736(5)(b)5, Fla. Stat. (2002)...2-8 627.736(5)(b)5, Fla. Stat. (2003)...6-8 Citations to session laws: Ch. 2001-271, Laws of Fla. (2001)...1-2 Ch. 2003-411, Laws of Fla. (2003)...7 Rules of procedure: Fla.R.App.P. 9.120(d)... 10 Fla.R.App.P. 9.210... 1, 10 iii

Citations to other sources: Medicare Program; Revisions to Payment Policies Under the Physician Fee Schedule for Calendar Year 2001; Final Rules, 65 Fed. Register 65376-01, 2000 WL 1624262 (Nov. 1, 2000)...2 Padovano, Florida Appellate Practice, 3.7 (2005 Edition)...4 Senate Staff Analysis and Economic Impact Statement for CS/SB 32-A (2003)...8 iv

STATEMENT OF CASE AND FACTS Respondent/Plaintiff Clearview Imaging, LLC (the "MRI Provider") submits this amended brief in response to the jurisdiction brief submitted by Petitioner/Defendant State Farm Mutual Automobile Insurance Company (the "Insurer") and the amended amicus curiae brief on jurisdiction submitted by the "Progressive Group of Insurance Companies" (the "Amicus"). 1 The Insurer and the Amicus seek discretionary review of Clearview Imaging LLC v. State Farm Mut. Auto. Ins. Co., 932 So.2d 423 (Fla.2d DCA 2006) (the "Opinion"). Before 6/19/01, personal injury protection ("PIP") insurers paid magnetic resonance imaging ("MRI") providers using the same reasonableness standard applicable to all other health care providers. See, 627.736(5), Fla. Stat. (2000). As of 6/19/01, the legislature enacted 627.736(5)(b)5, Fla. Stat. (2001), which required PIP insurers to pay for MRI services pursuant to a formula based on the "allowable amount under Medicare Part B for year 2001." See, Ch. 2001-271, 1 On 5/31/06, the Insurer filed its jurisdiction brief. On 6/2/06, the Amicus moved to appear in support of the Insurer and filed a proposed amicus brief on jurisdiction. On 6/13/06, the MRI Provider filed its answer brief on jurisdiction. Thereafter, by order dated 6/22/06, this Court granted the Amicus' motion, but struck its amicus brief for failure to comply with Fla.R.App.P. 9.210 and directed the Amicus to file a proper amended brief. On 7/5/06, the Amicus served its amended brief. On 7/18/06, the MRI Provider filed a second answer brief, in response to the amended amicus brief. By orders dated 7/25/06 and 12/22/06, this Court struck the MRI Provider's second brief, without prejudice to submitting a single amended brief in response to both the Insurer's brief and the Amicus' amended brief. 1

Laws of Fla. (2001). Thereafter, "[b]eginning November 1, 2001," Section 627.736(5)(b)5, Fla. Stat. (2001-2002) required PIP insurers to add an annual adjustment to that Medicare "year 2001" 2 amount using the "medical Consumer Price Index for Florida." See, Ch. 2001-271, Laws of Fla. (2001). In April 2003, the MRI Provider filed a class action against the Insurer for failure to pay annual adjustments under the "medical Consumer Price Index for Florida" provision of 627.736(5)(b)5, Fla. Stat. (2001-2002). Opinion at 425-426. Alternatively, the MRI Provider sought a declaratory judgment, ruling that if the "medical Consumer Price Index for Florida" provision is invalid, then MRI providers are entitled to payment of a "reasonable" fee under the remaining provisions of the PIP statute. Opinion at 426. The Insurer moved to dismiss, alleging that no "medical Consumer Price Index for Florida" existed. Id. "Thus, although [the Insurer] was quite willing to receive the benefit of the [Medicare schedule] caps on fees for MRI services provided in this statute, it concluded that it had no statutory obligation to increase 2 The Medicare schedule "for year 2001" referenced in 627.736(5)(b)5 was published on or about November 1, 2000. See, Medicare Program; Revisions to Payment Policies Under the Physician Fee Schedule for Calendar Year 2001; Final Rules, 65 Fed. Register 65376-01, 2000 WL 1624262 (Nov. 1, 2000). See also, 42 USC 1395w-4(b)(1) and (d)(1)(e)(i). Presumably, this is why the Legislature required PIP insurers to start making annual Consumer Price Index adjustments "[b]eginning November 1, 2001." See, e.g., Woodgate Development Corp. v. Hamilton Inv. Trust, 351 So.2d 14 (Fla.1977) (general presumption is that laws are passed based on legislature's knowledge of prior existing statutes). 2

the amount that it paid for these services because the legislature had [allegedly] written a void or ambiguous clause within two sentences of the statute." Id. The MRI Provider conceded there was no publication with the precise title "medical Consumer Price Index for Florida," but argued the statute must be construed as referring to the "Medical Care Item" of the Consumer Price Index for the South Region because it is the only Consumer Price Index most specific to the entire State of Florida relating to medical services. See, Opinion at 425. 3 The trial court agreed with the Insurer's argument, and dismissed the complaint with prejudice. Opinion at 426. The Second District reversed and adopted Millennium Diagnostic Imaging Center, Inc. v. Security National Ins. Co., 882 So.2d 1027 (Fla.3d DCA 2004) in holding that the 2003 legislation clarified the 2001-2002 version of the statute. Opinion at 426. The Second District also noted it was reaching "the same result" as Premier Open MRI, LLC v. Progressive Express Ins. Co., 2005 WL 1077722 (Fla.13th Cir. Ct. April 18, 2005). See, Opinion at n.2. Finally, the Second District 3 Citing the Opinion, pages 3-4 of the Insurer's brief states, "Respondent admitted that the Bureau of Labor Statistics had not expressly created a 'Consumer Price Index for Florida,' and that 'medical' was not an accurate description of any item in the Bureau's indices." Although the Opinion at 425 does say that, it is an incorrect characterization of the MRI Provider's position. The record will confirm the MRI Provider has consistently maintained that there is and always has been a publication that satisfies the legislative intent of the "medical Consumer Price Index for Florida" provision of 627.736(5)(b)5 (R 344-345). The Insurer tries to takes unfair advantage of the Second District's minor mischaracterization, which otherwise has no bearing on the proper statutory construction. 3

also noted that declaring the "medical Consumer Price Index for Florida" provision unconstitutional "would have been troublesome" and would have rendered the entire subsection (5)(b)5 unenforceable, such that MRI services "would have been subject to the same rules of reasonableness that existed prior to 2001." See, Opinion at n.3, citing Florida Dept. of State v. Martin, 916 So.2d 763 (Fla.2005). SUMMARY OF THE ARGUMENTS This Court lacks jurisdiction. The Second District did not "expressly declare valid" the 2001-2002 statute; it did not retroactively apply the 2003 legislation; and its decision does not conflict with any other Florida district court or Supreme Court decisions. The Insurer and Amicus cling to the fantasy that no publication satisfies the "medical Consumer Price Index for Florida" provision of 627.736(5)(b)5, Fla. Stat. (2001-2002), and they want this Court to ignore reality and controlling statutory construction principles, to make that fantasy come true. I. THE SECOND DISTRICT DID NOT EXPRESSLY DECLARE THE STATUTE VALID Discretionary jurisdiction under Art. V, 3(b)(3), Fla. Const. may be invoked if the district court "expressly declares valid a state statute." (Emph. added). A district court's decision "is not subject to review merely because it has the effect of upholding the validity of a statute." Padovano, Florida Appellate Practice, 3.7 (2005 Ed.) (emph. added), citing Harrell's Candy Kitchen, Inc. v. Sarasota-Manatee Airport Auth., 111 So.2d 439 (Fla.1959)(which in contrast, 4

construed former Art. V, 3(b)(1) to provide jurisdiction even absent an express declaration of the statute's validity). Here, the Second District merely reversed the trial court's decision to dismiss a complaint for failure to state a cause of action. Although the decision may have the "effect" of upholding the validity of 627.736(5)(b)5, Fla. Stat. (2001-2002), the Second District did not "expressly declare" that statute to be valid. 4 II. NO CONFLICT WITH OTHER APPELLATE DECISIONS Discretionary jurisdiction under Art. V, 3(b)(3) may be invoked if the district court's decision "expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law." No such conflict exists here. The Second District did not retroactively apply the 2003 version of the statute. Rather, the MRI Provider's claims are based on the 2001 and 2002 version of 627.736(5)(b)5 (both of which are identical). The 2003 amendments were adopted after this lawsuit was filed. In pertinent part, 627.736(5)(b)5, Fla. Stat. (2001 & 2002) states: Effective upon this act becoming a law [i.e., 6/19/01] and before November 1, 2001, allowable amounts that may be charged to a personal injury 4 Even if the Second District had expressly declared the statute valid, that is not a good enough reason for this Court to invoke its discretionary jurisdiction. Statutes are "clothed with a presumption of constitutionality," and courts are required to give a statute a constitutional construction whenever reasonably possible. Bush v. Holmes, 919 So.2d 392, 405 (Fla.2006); City of Miami v. McGrath, 824 So.2d 143, 146 (Fla.2002). Thus, if this Court reviewed every district court decision that upheld a statute's validity, this Court's case load would multiply. 5

protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 200 percent of the allowable amount under Medicare Part B for year 2001, for the area in which the treatment was rendered. Beginning November 1, 2001, allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 175 percent of the allowable amount under Medicare Part B for year 2001, for the area in which the treatment was rendered, adjusted annually by an additional amount equal to the medical Consumer Price Index for Florida, except that allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services provided in facilities accredited by the American College of Radiology or the Joint Commission on Accreditation of Healthcare Organizations shall not exceed 200 percent of the allowable amount under Medicare Part B for year 2001, for the area in which the treatment was rendered, adjusted annually by an additional amount equal to the medical Consumer Price Index for Florida.. (Emph. added). On 7/11/03, after this lawsuit was filed, 627.736(5)(b)5 was amended, in pertinent part, as follows: Beginning November 1, 2001, allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 175 percent of the allowable amount under the participating physician fee schedule of Medicare Part B for year 2001, for the area in which the treatment was rendered, adjusted annually on August 1 to reflect the prior calendar year's changes in the annual Medical Care Item of the Consumer Price Index for All Urban Consumers in the South Region as determined by the Bureau of Labor Statistics of the United States Department of Labor for the 12-month period ending June 30 of that year by an additional amount equal to the medical Consumer Price Index for Florida, except that allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services provided in facilities accredited by the Accreditation Association for Ambulatory Health Care, the American College of Radiology or the Joint Commission on Accreditation of Healthcare Organizations shall not exceed 200 percent of the allowable amount under the participating physician fee schedule of Medicare Part B for year 2001, for the area in which the treatment was rendered, adjusted 6

annually on August 1 to reflect the prior calendar year's changes in the annual Medical Care Item of the Consumer Price Index for All Urban Consumers in the South Region as determined by the Bureau of Labor Statistics of the United States Department of Labor for the 12-month period ending June 30 of that year by an additional amount equal to the medical Consumer Price Index for Florida. This paragraph does not apply to charges for magnetic resonance imaging services and nerve conduction testing for inpatients and emergency services and care as defined in chapter 395 rendered by facilities licensed under chapter 395. Ch. 2003-411, Laws of Fla. (2003) (underline and strike-through in original; bold added); 627.736(5)(b)5, Fla. Stat. (2003). Thus, the 2003 legislation substituted the "medical Consumer Price Index for Florida" provision with the "Medical Care Item of the Consumer Price Index for All Urban Consumers in the South Region." The Insurer correctly notes that 16(4) of Ch. 2003-411 states, "Subsection (5) of section 627.736, Florida Statutes, as amended by this act, shall apply to treatment and services occurring on or after October 1, 2003." However, even after the 2003 amendments, 627.736(5)(b)5 still unambiguously states on its face that the Consumer Price Index adjustments must be applied "[b]eginning November 1, 2001." (Emph. added). In any event, the MRI Provider's claims in this case are brought pursuant to the 2001 and 2002 version of Section 627.736(5)(b)5, not the 2003 version. Irrespective of the proper effective date of the 2003 amendment, the 2001 and 2002 version of the statute unambiguously states that MRI providers are entitled to annual adjustments pursuant the "medical Consumer Price Index for Florida" "[b]eginning November 1, 2001." 7

Thus, this Court must focus on the 2001-2002 version of 627.736(5)(b)5, upon which the MRI Provider's claims are based. In construing that statute, the courts must presume the legislature meant something when it created the "medical Consumer Price Index for Florida" provision. 5 In construing the "medical Consumer Price Index for Florida" provision, the Second District relied on Millennium Diagnostics, where the Third District held the 2003 legislation was intended to clarify the prior version of 627.736(5)(b)5, based on the legislative staff analysis associated with the 2003 amendment, which states: The bill clarifies that the allowable amounts for medically necessary nerve conduction tests, under specified conditions, will be under the 'participating physician fee schedule' of the Medicare Part B fee schedule and adjusted annually on August 1 to reflect the prior calendar year changes in the Medical Care Item of the Consumer Price Index (CPI) for All Urban Consumers in the South Region as determined by the Bureau of Labor Statistics. The CPI provision also pertains to MRI services. Millennium Diagnostics, 882 So.2d at 1030, quoting Senate Staff Analysis and Economic Impact Statement for CS/SB 32-A (2003) (emph added). 6 5 See, e.g., Golf Channel v. Jenkins, 752 So.2d 561 (Fla.2000) (legislature does not intend to enact useless provisions and courts should avoid readings that render part of a statute meaningless). 6 Further, the courts have "the right and the duty, in arriving at the correct meaning of a prior statute, to consider subsequent legislation." Ivey v. Chicago Ins. Co., 410 So.2d 494, 497 (Fla.1982). A clarifying amendment should be interpreted to clarify the pre-existing statute and not enact a subsequent change. State ex rel. Szabo Food Serv. Inc. of N.C. v. Dickinson, 286 So.2d 529, 531 (Fla.1973). Thus, consideration of the 2003 "clarifying" legislation provides a useful basis for interpreting the 2001-2002 statute, without any unlawful retroactive application of the 2003 statute. 8

The Second District also cites to Premier Open MRI. Opinion at fn. 2. There, a circuit court in its appellate capacity noted that a plaintiff MRI provider presented undisputed expert testimony proving that "the term 'medical Consumer Price Index for Florida,' as used in Section 627.736(5)(b)5, Florida Statutes (2001), can only refer to the Medical Care Item of the Consumer Price Index for All Urban Consumers in the South Region because, among other things, it is the only generally accepted consumer price index for medical services most specific to the entire State of Florida." Premier Open MRI, 2005 WL 1077722, at *1. Premier Open MRI held, "Given that only one generally accepted index fits within the parameters set forth in the statute, we agree that the expert's conclusion is the only reasonable conclusion in this case." Id. at *2. See also, Fair v. State Farm Mut. Auto. Ins. Co., 11 Fla. L. Weekly Supp. 863c (Fla.7th Cir. July 15, 2004) (reaching similar result concerning same statute). Thus, there is no conflict, and the Second District correctly construed the 2001-2002 statute. III. THE AMENDED AMICUS BRIEF IS IMPROPER The amended amicus brief provides no basis for jurisdiction. Instead of supporting grounds asserted by the Insurer, the Amicus attempts to create its own question of great public importance, without certification 7 by the Second District. 7 A question of great public importance is insufficient to invoke this Court's discretionary jurisdiction, unless it was actually "certified" by the district court. Art. V, 3(b)(4), Fla.Const.; Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla.1995). 9

Further, pages 4-8 of the Amicus' amended brief cite to unverified information from outside of the record 8 and violate the font-size, line spacing, and margin requirements of Fla.R.App.P. 9.120(d) and 9.210(a)(2) and (5). CONCLUSION WHEREFORE, the MRI Provider respectfully requests this Honorable Court to dismiss or deny the Insurer's request for discretionary review. I CERTIFY a true and correct copy of the foregoing was served by U.S. Mail to Chris S. Coutroulis, Esquire, 4221 W. Boy Scout Boulevard, Tampa, FL 33607-5736; and Bruce S. Rogow, Esquire, 500 E. Broward Blvd., Suite 1930, Ft. Lauderdale, FL 33394; this day of, 20. I CERTIFY the text herein is printed in Times New Roman 14-point font, and this brief complies with the font requirements of Fla.R.App.P. 9.210. Respectfully submitted, David M. Caldevilla, FBN 654248 de la Parte & Gilbert, P.A. Post Office Box 2350 Tampa, Florida 33601-2350 Telephone: (813) 229-2775 COUNSEL FOR RESPONDENT 8 A jurisdictional brief can only rely on the "four corners" of the district court's decision to establish this Court's jurisdiction. See, Fla.R.App.P. 9.120(d); Hardee v. State, 534 So.2d 706 (Fla.1988). See also, Thornber v. City of Fort Walton Beach, 534 So.2d 754 (Fla. 1st DCA 1988) (appellate court will not consider evidence not presented to lower tribunal). 10