16 Fla. L. Weekly Supp. 1188a
Online Reference: FLWSUPP 1612PREM
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 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 states that insurer will pay 80% of medical expenses and does not define reasonable expenses in relation to Medicare fee schedule, and insurer did not issue endorsement expressing election to pay based on Medicare fee schedule
PREMIER NEUROLOGICAL TREATMENT CENTERS, INC., a/a/o John McCray, Plaintiff, vs. USAA CASUALTY INSURANCE CO., Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-13411 COCE 50. October 7, 2009. Peter B. Skolnik, Judge. Counsel: Cris E. Boyar, Boyar and Freeman, P.A., Margate, for Plaintiff. Don Mathews, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION for SUMMARY JUDGMENT
This matter coming on to be heard on October 7, 2009, upon the Plaintiff’s Motion for Summary Judgment and the Defendant’s Motion for Summary Judgment relative to the payment of the Plaintiff’s medical bills at 200% of Medicare and the Court having heard argument of counsel, and being otherwise fully advised in the premises, it is
ORDERED AND ADJUDGED that Plaintiff’s Motion is granted and the Defendant’s Motion is denied:
1. The Plaintiff, an assignee medical provider, filed suit for payment of medical bills it provided to the Defendant’s insured in the year 2008. There is no question there was coverage for the patient, the patient that assigned his pip benefits to Plaintiff, and the defendant’s PIP policy of insurance was issued in December 2007, before the changes to the pip statute.
2. The Defendant has stipulated the bills at issue were medically necessary and related to the accident. The Defendant further stipulates the bills are reasonable provided this Court finds 200% of Medicare the “reasonable amount” based on the Defendant’s interpretation of Florida law and the policy of insurance it issued.
3. The Defendant argues this Court is compelled to find the maximum the Defendant is obligated to pay is 200% of Medicare for the treatment rendered in 2008 The Defendant relies 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.
4. The Defendant argues there is a retroactive application of the 2008 PIP statute and the 2008 PIP statute is procedural in nature. The Defendant further argues the retroactive application would not alter the contractual or vested rights of the parties to the contract. The Defendant’s argument as to 200% of Medicare were not contained in the Defendant’s affirmative defenses.
5. The Plaintiff disagrees with the defendant’s arguments and this court agrees.
6. The court finds the clear language of the policy of insurance controls. The policy of insurance, issued in 2007, states in Part B-1 of the amendment to the policy, that the Defendant will pay 80% of medical expenses. The policy also states in Part B-1 the reasonable fee would be based on the actual charge, the charge negotiated with a provider or the charge determined by a statistically valid database that is designed to reflect charges for the same or comparable services or supplies involving no insurance. This is the Defendant language that the Defendant drafted.
7. There is no portion of the policy of insurance where it states the Defendant would pay at 200% of Medicare. There is no amendment to the policy of insurance to place anyone on notice of the Defendant’s intention to pay 200% of Medicare.
8. The Defendant’s own policy of insurance would preclude any changes to the policy of insurance absent an endorsement issued by the Defendant. Page 22 of 28 of the policy under Part E states:
. . . .Otherwise, this restrictions in coverage includes all of the agreements between you and us. Its terms may riot be changed or waived except by endorsement issued by us.
9.The Defendant never issued any such endorsement.
10. Further. 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. Further, even assuming the statutory language is incorporated into the policy of insurance, then the mandatory language of the statute would control 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. The Florida legislature could have also specifically defined reasonable expenses.
13. 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. The Defendant would only have to mirror the permissive language of the 2008 pip statute in the policy. This would fairly place the patients and the doctors on notice.
14. Further, the insured’s rights under this policy of insurance vested in 2007 when the policy of insurance was issued.
15. The court finds the amendment to the pip statute included substantive changes and the 2008 PIP 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 to medical doctors, doctors of osteopathic medicine, chiropractors and dentists. No other type of doctors are included. The 2008 pip statute limits the type of care that is payable by PIP. If procedure is not payable by either workers compensation or Medicare it would not be payable under the 2008 version of the pip statute. The 2008 pip statutes also limits the death benefits and it limits the lost wage claims because emergency rooms doctors now get the first $5000 in PIP benefits. As such, these are clearly a substantive changes.
16. Further, the medical community, that accepts assignments of benefits in lieu of receiving payment when the services are rendered, would be prejudiced by the Defendant’s failure to expressly state in its policy of insurance how much it will pay for care. In the 2008 version of the pip statute doctors cannot balance bill the patient for expenses in excess of 200% of medicare. See F.S. Section §627.736(5)(a)(5) which 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.
17. 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.
18. 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 (FIa.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 statute’s 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).
19. 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).
20. 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).
21. This Court, in finding for the Plaintiff and against the Defendant, also relies on the rulings in Physicians Group v. GEICO, 15 Florida Law Weekly Supp. 1207 (Fla. Sarasota Cty. Court 2008); Explorer Insurance v. Physicians Group, 16 Florida Law Weekly Supp. 317 (Fla. 13” Cir. Court 2009); Boca Raton Orthopedic Group v. GEICO, 16 Florida Law Weekly Supp. 677 (Fla. Palm Beach Cty. Court 2009); Forest Hill Injury Center v. Progressive, 16 Florida Law Weekly Supp. 463a (Fla. Palm Beach Cty. Court 2009).
22. Accordingly, Plaintiff’s Motion for summary judgment on this issue is granted and the defendant’s motion is denied.
