17 Fla. L. Weekly Supp. 1259b
Online Reference: FLWSUPP 1712PLOP
Insurance — Personal injury protection — Coverage — Medical expenses — Because provision of PIP statute providing that insurer may limit reimbursement to 80% of Medicare Part B fee schedule is permissive and not mandatory, where contract provides that insurer will pay in accordance with No-Fault Act 80% of reasonable charges for necessary medical services and does not indicate that insurer was going to limit payments as permitted by statute, insurer is required to pay 80% of reasonable expenses
DORSAL REHAB, INC. F/K/A UNITED DIAGNOSTIC & REHAB ASSOCIATES, a Florida Corporation (assignee of Lopez, Pablo), Plaintiff, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-019065 COCE 53. September 8, 2010. Robert W. Lee, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, d/b/a/ Florida Insurance Advocates, North Miami, for Plaintiff. Roig, Tutan, Rosenberg & Zlotnick, P.A., Deerfield Beach.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE came before the Court for hearing on August 23, 2010 on Plaintiffs Motion for Partial Summary Judgment and, having reviewed the motions and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background: This is a P.I.P. case. Pablo Lopez obtained medical treatment from the Plaintiff beginning on May 19, 2008. Plaintiff timely submitted to Defendant bills for all services rendered to Pablo Lopez. In response to Plaintiff’s claim submission, Defendant issued payment at less than 80% of the Plaintiff’s billed charges and has asserted a defense alleging that said payment was properly made pursuant to the 2008 Medicare Part B participating physician’s fee schedule as set forth in F.S. s. 627.736 (“2008 fee schedule”).
Plaintiff moves for partial summary judgment as to the defense asserting that no fee schedule applies to Plaintiff’s claim as the applicable policy language, which provides for payment at 80% of reasonable expenses for necessary medical services, fails to incorporate the permissive language of the 2008 P.I.P. statute, which provides carriers with the option to limit reimbursement to the participating physician’s Medicare Part B fee Schedule.
Conclusion Of Law: The Court continues to follow its prior ruling in Hollywood Diagnostic Center v. Mercury Insurance Company, Case No.: 09-844 COCE 53 (Broward Cty. Ct.) and finds as follows:
F.S. 627.736(5)(a)(2)(b) provides that “the insurer may limit reimbursement to 80 percent of the following schedule of maximum charges” and includes various rates or schedules, including “200 percent of the allowable amount under the participating physicians schedule of Medicare Part B” (emphasis added).
In the instant case, the policy at issue provides that the insurer“will pay in accordance with the No-Fault Act. . . 80% of the reasonable charges incurred for necessary medical. . . services” (emphasis added). The policy itself does not make reference to the Medicare Part B Fee Schedule, or F.S. 627.736(5)(a)(2)(b). The only relevant provision in the policy which references the P.I.P. statute is the provision that states that benefits are to be paid “in accordance with the No-Fault Act.”
However, this Court finds that this policy language is insufficient on its own to place the policy holder on notice that payment for P.I.P. benefits is to be made according to the Medicare Part B Fee Schedule and this Court’s finding is consistent with the analysis of the Fifth District Court of Appeal in State Farm Florida Ins. Co. v. Boyd Nichols and Linda Nichols, et al., 34 Fla. L. Weekly D2275b (Fla. 5th DCA 2009).
Nichols involved a dispute between State Farm and its insureds concerning when State Farm was obligated to pay for subsurface sinkhole repairs under its homeowners’ policies. The Nichols Court construed the permissive language of the statute at issue (627.707(5)(b), Florida Statutes (2007)), which provided that “the insurer may limit its payment . . . until the policyholder enters into a contract for the performance of building stabilization or foundation repairs” with the mandatory language of the policy at issue, which provided that the “[l]oss will be payable. . .60 days after we receive your proof of loss,” and held that the statutory language was permissive, not mandatory, and that because it was permissive, the policy language was binding on the parties to the insurance contract. Id.
This Court finds that the language of F.S. 627.736(5)(a)(2)(b) (providing that “the insurer may limit reimbursement”) is permissive and not mandatory and that the policy language at issue (providing that “we will pay. . .80% of the reasonable charges incurred for necessary medical. . .services”) is mandatory and therefore controlling and, as such, payment should have been made according to the policy limits at 80%.
Furthermore, Florida law renders applicable to contracts of insurance the principle that, where a contract of insurance is prepared and phrased by the insurer, it is to be construed liberally in favor of the insured and strictly against the insurer, where the meaning of the language is doubtful, uncertain, or ambiguous. Financial Fire & Cas. Co. v. Callaham, 199 So.2d 529, 532-533 (Fla. 2nd DCA 1967) citing to Fireman’s Fund Ins. Co. of San Francisco, Cal. v. Boyd, 45 So.2d 499 (Fla. 1950). The general rule is that, if there are terms in an insurance policy which are ambiguous, equivocal, or uncertain to the extent that the intention of the parties is not clear and cannot be clearly ascertained by the application of ordinary rules of construction, these terms are to be construed strictly and most strongly against the insurer and liberally in favor of the insured so as to effect the dominant purpose of payment to the insured. Callaham, 199 So.2d 529 at 533 citing to Beasley v. Wolf, 151 So.2d 679 (Fla. 3rd DCA 1963). The accepted rationale of this rule is that insurance policies are prepared by experts in this complex area, and the intricate interplay of their various provisions is difficult for a layman to understand. Callaham, 199 So.2d 529 at 533 citing to Praetorians v. Fisher, 89 So.2d 329 (F1a.1956). Where there are two interpretations which may fairly be given to language used in a policy, the one that allows the greater indemnity will govern. Callaham, 199 So.2d 529 at 533 citing to Howard v. American Service Mut. Ins. Co., 151 So.2d 682 (Fla. 3rd DCA 1963).
Where the meaning of the insurer’s language is doubtful, uncertain or ambiguous, the doubt is resolved in favor of greater coverage. State Farm Mut. Auto. Ins. Co. v. Mallard, 548 So.2d 733, 735 (Fla. 3rd DCA 1989) citing to Joseph Uram Jewelers, Inc. v. Liberty Mutual Fire Insurance Company, 273 So.2d 111, 113 (Fla. 3rd DCA 1972).
If the insurer wanted to limit payment pursuant to any of the fee schedules then it should have included language specifically stating as such. At the very least, the Court finds that the policy language is ambiguous and, as such, the policy must be construed against the Defendant, who drafted the policy, and in favor of the insured.
The Court reserves jurisdiction to determine the reasonable amount of attorney’s fees and costs and enter judgment accordingly.
