16 Fla. L. Weekly Supp. 972b
Online Reference: FLWSUPP 1610BUIT
Insurance — Personal injury protection — Coverage — Version of PIP statute in effect at time PIP policy was executed, which provided for payment of 80% of reasonable charges, rather than version of statute in effect at time of treatment, which provides for payment of 80% of 200% of Medicare fee schedule, is applicable where statutory change is substantive, policy does not define what is reasonable expense, and insurer did not issue endorsement expressing election to pay based on Medicare fee schedule — Motion to amend final judgment to reflect payment at Medicare fee schedule is denied
DR ROBERT S. SCHWARTZ, D.C., P.A., as assignee of Merari Buitrago, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE CO., Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08006654 COCE 50. August 14, 2009. Peter B. Skolnik, Judge. Counsel: Cris E. Boyar, Boyar & Freeman, P.A., Margate, for Plaintiff. Brian Pabian, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO AMEND THE FINAL JUDGMENT
This matter coming on to be heard on August 14, 2009, upon the Defendant’s Motion to Amend the Final Judgment, and the Court having heard argument of counsel, and being otherwise fully advised in the premises, it is
ORDERED AND ADJUDGED that: Motion is denied.
1. The Plaintiff filed suit for payment of medical bills it provided to the Defendant’s insured in 2007 and 2008. The Plaintiff alleged and proved at trial the Plaintiff’s patient was injured in a car accident in 2007.
2. The Plaintiff obtained a jury verdict in favor of the Plaintiff for all bills submitted and the Plaintiff’s charges were found to be reasonable, medically necessary and related to the accident.
3. The Plaintiff submitted a final judgment for all bills to be paid at 80% plus applicable interest which was entered by this Court on 6/12/09.
4. The Defendant seeks to reduce the amount for the treatment rendered in 2008 to be paid at 200% of Medicare and to amend the final judgment.
5.The Defendant argues the Court is compelled to allow the Defendant to pay bills at 200% of Medicare for the treatment rendered in 2008 by relying upon the 2008 PIP statute §627.736(5)(2) which states the insurer may limit reimbursement to 80% for all medical services supply and care to 200 percent of the applicable Medicare Part B fee schedule.
6. The Defendant also states this statute became part of the contract on 1/1/08, the effective date of the statutory provision based on certain language of the policy of insurance.
7. The Plaintiff disagrees for numerous reasons.
8. First, the Plaintiff argues the clear language of the policy of insurance controls. The policy of insurance was drafted in 2002. The policy was issued in 2007 and the policy of insurance states that the Defendant will pay 80% of reasonable medical expenses. There is no portion of the policy of insurance where it states the Defendant would pay at a fee schedule. The Plaintiff argues the plain language of the policy of insurance controls and the Defendant cannot simply adopt the change to the PIP statute to effect the vested rights of the parties to the contract. To support this argument the Plaintiff points to page 17 of the policy under section 2 Changes which states:
“This policy contains all the agreements between “you” and “us”. Its terms may not be changed or waived except by endorsement issued by “us”. If a change requires a premium adjustment, “we” will adjust the premium as of the effective date of the change. . . .
9. The Defendant never issued any such endorsement.
10. The Defendant never issued any premium adjustment as a result of having to pay 200% of Medicare as opposed to 80% of the reasonable amount billed.
11. The Defendant’s second argument is, assuming the statutory language is incorporated into the policy of insurance, than the mandatory language of the statute controls as opposed to the permissive language found at the section the Defendant is relying upon. See Murray v. Mariner Health, 994 So. 2d 1051 (Fla. 2008).
12. More specifically, the PIP statute states the Defendant shall pay 80% of the reasonable medical expenses. See Fla. Stat. §627.736(1)(a) (2008). Under basic statutory construction the mandatory language of a statute always controls over a permissive portion of a statute and there is no evidence the Defendant elected to pay 200% of Medicare rates which, according to the Defendant’s policy of insurance can only be done via endorsement. Further, had the legislature wanted to make the payment at 200% of Medicare mandatory it could have done so. Insurers certainly have the right to issue policies where they can expressly elect between paying 80% of the reasonable amounts billed or 80% of 200% of Medicare.
13. Next the Plaintiff argues the insureds rights under this policy of insurance vested and the substantive changes to the statute cannot take away those vested rights. The 2008 PIP statute not only allows an insurer to pay 200% of Medicare rates but it also limits the types of medical providers that can bill PIP, it limits the type of care that is payable by PIP, it limits the death benefits, and it limits the lost wage claims because emergency rooms doctors now get the first $5000 in PIP benefits.
13. The Plaintiff further argues the doctors and the patients would be prejudiced by the Defendant’s failure to expressly state in its policy of insurance how much it will pay for care since the doctors cannot balance bill the patient for expenses in excess of 200% of Medicare. See F.S. Section §627.736(5)(a)(5) states:
If an insurer limits payment as authorized by subparagraph 2., the person providing such services, supplies, or care may not bill or attempt to collect from the insured any amount in excess of such limits, except for amounts that are not covered by the insured’s personal injury protection coverage due to the coinsurance amount or maximum policy limits.
14. If the insurance company does not expressly state how much it will pay for care then the provider would never know how much the patient owes. The parties to the contract and the doctors that accept assignment of benefits are entitled to rely upon the express language of the policy.
15. This Court is aware statutes should not be interpreted so as to yield an absurd result. State v. Iacovone, 660 So. 2d 1371 (Fla. 1995). The law favors a rational, sensible construction. City of Boca Raton v. Gidman, 440 So. 2d 1277, 1282 (Fla. 1983). In Holly v. Auld, 450 So.2d 217 (Fla.1984), the Supreme Court held where a statute is clear and unambiguous, there is no need for statutory interpretation and the court should follow the statutes plain and obvious meaning. See also, Southeastern Fisheries Ass’n v. Department of Natural Resources, 453 So.2d 1351, 1354 (Fla.1984) (statutory language is to be given its plain and ordinary meaning). Courts should not impose contractual rights and duties on the parties which they themselves did not make part of the Contract. Life Insurance Co. of No. America v. Cichowlas, 659 So. 2d 1333 (Fla. 4th DCA 1995).
16. It is a well-settled rule of law in Florida that where an insurance contract is ambiguous it will be construed liberally in favor of the insured and strictly against the insurer. Ellsworth v. Ins. Co. of North America, 508 So.2d 395 (Fla. 1st DCA 1987), see also Hartnett v. Southern Insurance Company, 181 So. 2d 524 (Fla.1965).
17. This Court finds the Plaintiff’s arguments to be persuasive as well as the rulings in Physicians Group v. GEICO, 15 Fla. L. Weekly Supp. 1207 (Fla. Sarasota Cty Court 2008); Explorer Insurance v. Physicians Group, 16 Fla. L. Weekly Supp. 317 (Fla. 13th Cir. Court 2009); Boca Raton Orthopedic Group v. GEICO, 16 Fla. L. Weekly Supp. 677 (Fla. Palm Beach Cty Court 2009); Forest Hill Injury Center v. Progressive, 16 Fla. L. Weekly Supp. 463a (Fla Palm Beach Cty Court 2009).
18. The Court further finds the 2008 changes to the PIP statute to be substantive as it certainly changes the vested rights of the insureds.
19. The Court agrees the Defendant’s policy of insurance does not define what is a reasonable expense and since the Defendant drafted the policy of insurance it must pay those benefits pursuant to the terms and conditions of the Defendant’s policy of insurance which would be 80% of the reasonable expenses. At best, the Defendant’s catchall language relied upon by the Defendant is ambiguous and must be construed against the drafter.
20. The Florida legislature did not define the fee schedule as constituting the “reasonable expenses.” Instead, the Florida legislature gave the insurer the right to elect to pay 200% of Medicare if it so chooses to do so. This Court finds this intent to pay 200% ynof Medicare must be expressly set forth in the policy of insurance or in a properly drafted endorsement. There was no such endorsement provided by the Defendant.
21. In this case, there is no evidence of the Defendant’s intent to pay any amount other than what was required based on the mandatory language of the statute which is 80% of the reasonable expenses.
22. It would be unreasonable to allow the Defendant to pay less than 80% of the reasonable expenses for the services rendered in 2008.
