Weldon v. All American Life Ins. Co.

605 So. 2d 911, 1992 Fla. App. LEXIS 9589, 1992 WL 220516
CourtDistrict Court of Appeal of Florida
DecidedSeptember 11, 1992
Docket91-01884
StatusPublished
Cited by25 cases

This text of 605 So. 2d 911 (Weldon v. All American Life Ins. Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weldon v. All American Life Ins. Co., 605 So. 2d 911, 1992 Fla. App. LEXIS 9589, 1992 WL 220516 (Fla. Ct. App. 1992).

Opinion

605 So.2d 911 (1992)

Alice Faye WELDON, Appellant,
v.
ALL AMERICAN LIFE INSURANCE COMPANY, Appellee.

No. 91-01884.

District Court of Appeal of Florida, Second District.

September 11, 1992.

William J. Corda of Benefield & Corda, Lakeland, and Adam Lawrence of Lawrence & Daniels, Miami, for appellant.

*912 Steven L. Brannock, Fred J. Lotterhos, and Stacy D. Blank of Holland & Knight, Tampa, for appellee.

Mark M. Carroll of Caldwell & Carroll, P.A., Miami, for intervenor, Chiropractic Legal Affairs.

Paul Watson Lambert, Tallahassee, for Intervenor, Florida Chiropractic Ass'n, Inc.

Mort Morris of Morris & Green, Hollywood, for amicus curiae, Florida Osteopathic Medical Ass'n, Inc.

SCHOONOVER, Judge.

The appellant, Alice Faye Weldon, challenges a final judgment entered in favor of the appellee, All American Life Insurance Company (All American). Although we agree with the trial court's determination that a limitation of coverage clause in All American's insurance policy is valid, the court erred in interpreting that clause. We, accordingly, reverse and remand for further proceedings.

The appellant enrolled her daughter, Amy, in The Miss Florida Softball Tournament. Part of the $25 enrollment fee was used to provide accident insurance to each of the participants in the tournament. All American provided this coverage to the sponsors of the tournament.

After Amy was injured while playing in a Miss Florida Softball Game, her mother took her to Dr. Dane Parker, a chiropractic physician, for treatment. Dr. Parker diagnosed Amy's injuries as an acute traumatic sprained shoulder, a contused jaw, and a strained hyperextended back. In addition to the initial visit when Amy's injuries were diagnosed, she visited the doctor on nineteen other occasions. On each visit, Dr. Parker performed a chiropractic adjustment on Amy's back and on nine of the visits this adjustment was accompanied by physical therapy to the back or shoulder, or both. These physical therapy treatments consisted of either ultrasound, traction, or electrical stimulation. All American took the position that manipulation and adjustment were included in its policy definition of physical therapy. Based upon that position, and because of a policy benefit limitation clause in regard to physical therapy, it refused to pay for more than five of Amy's nineteen visits to Dr. Parker.

After All American refused to pay $418 of Dr. Parker's charges, the appellant filed an action in the County Court in and for Polk County, Florida. The appellant evidently accepted All American's position concerning the policy definition of physical therapy but claimed that the exclusion provision, as so defined, discriminated against chiropractic physicians in violation of section 627.419(4), Florida Statutes (1987). All American answered the complaint and counterclaimed seeking a declaratory judgment that its policy did not violate the statute. It also, as an affirmative defense, contended that if the policy was found to violate the statute, the statute was then unconstitutional as applied.[1] Because of the counterclaim, the action was transferred to the circuit court. Chiropractic Legal Affairs and The Florida Chiropractic Association, Inc., were allowed to intervene in support of the appellant's position.

At the conclusion of a nonjury trial, the trial court found that the appellee's insurance policy did not unfairly discriminate against chiropractors as a class of physicians and entered a final judgment in favor of All American. This timely appeal followed.

Appellant raises the question of whether two provisions of All American's insurance policy violate section 627.419(4). First, the policy provides that wherever used in the policy "`Physical Therapy' means any form of physical therapy, whether by machine or hand, by use of exercise, manipulation, massage, adjustment, heat or cold, air, light, water, electricity or sound." Next, the policy contains several expense benefit limitations, one of which reads: "(d) For diathermy, ultrasonic, whirlpool or heat treatments, adjustment, manipulation, massage, or any form of physical therapy and or office visit connected therewith, benefits *913 shall be limited to $n/a for each treatment not to exceed five treatments."

All American contends the use of the words "manipulation" and "adjustment" in its definition of physical therapy mean that chiropractic spinal manipulation or spinal adjustment is part of physical therapy under the policy, and therefore, payment for those services is limited to five treatments. The appellant, on the other hand, contends that spinal manipulation or spinal adjustment is not physical therapy and the policy therefore limits not only treatments for physical therapy but also for chiropractic treatments. She argues that since manipulation is the usual and customary treatment of chiropractic physicians when treating strains and sprains such as received by Amy Weldon, the limitation does not apply equally to all physicians and discriminates against chiropractors as a class of physicians in violation of section 627.419(4). That section provides:

(4) Notwithstanding any other provision of law, when any health insurance policy, health care services plan, or other contract provides for the payment for medical expense benefits or procedures, such policy, plan, or contract shall be construed to include payment to a chiropractic physician who provides the medical service benefits or procedures which are within the scope of a chiropractic physician's license. Any limitation or condition placed upon payment to, or upon services, diagnosis, or treatment by, any licensed physician shall apply equally to all licensed physicians without unfair discrimination to the usual and customary treatment procedures of any class of physicians.

The claims adjuster who originally handled the appellant's claim determined that under All American's policy, physical therapy included chiropractic manipulations or adjustments, and therefore, the limitation of payment for five treatments applied. At trial, All American's representatives testified that manipulation and adjustment referred to spinal manipulation or spinal adjustment and, therefore, payment for such treatment was limited. The appellant apparently accepted this definition of those words and then argued the policy unfairly discriminated against chiropractic physicians. The trial court also found that the policy definition of physical therapy clearly encompasses chiropractic manipulation or adjustment (as well as manipulative therapy performed by an osteopathic physician.)

If we assume that the words "manipulation" or "adjustment" contained in the policy refer to chiropractic manipulation or adjustment of the spine, the trial court properly proceeded to determine whether the policy unfairly discriminated against chiropractic physicians. The trial court relying on State Dep't of Ins. v. Ins. Servs. Office, 434 So.2d 908 (Fla. 1st DCA 1983), pet. for rev. denied by 444 So.2d 416 (Fla. 1984), held that if there is a rational basis for discrimination it is not unfair and that in order to find that there is rational basis for a limitation, the court must find that the limitation is actuarially sound.

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Bluebook (online)
605 So. 2d 911, 1992 Fla. App. LEXIS 9589, 1992 WL 220516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weldon-v-all-american-life-ins-co-fladistctapp-1992.