17 Fla. L. Weekly Supp. 685a
Online Reference: FLWSUPP 1708GABL
Insurance — Personal injury protection — Coverage — Where provision of 2008 PIP statute allowing insurer to limit reimbursement to 80% of 200% of Medicare fee schedule is permissive, policy language providing that insured will pay 80% of reasonable expenses controls reimbursement
GABLES INSURANCE RECOVERY, INC., a/a/o Orlay Lima, Plaintiff vs. AMERICAN INDEPENDENT INSURANCE CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 08-6839 CC 26 (02). Section: 02. May 14, 2010. Gladys Perez, Judge.
AFFIRMED. 19 Fla. L. Weekly Supp. 14b
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on Tuesday, May 11, 2010, for hearing on the parties’ cross motions for summary judgment. The Court, having reviewed the motions and entire Court file, heard arguments of counsel, reviewed relevant legal authority, and otherwise advised in the premises, makes the following findings of fact and conclusions of law:Findings of Fact:
The material facts in this case are not in dispute. Orlay Lima was involved in a motor vehicle accident on February 27, 2008. At the time of the accident Mr. Lima was insured under a personal automobile insurance policy issued by American Independent Insurance Company (“American”), with a policy period of January 9, 2008 through July 9, 2008.
Two days after the accident, Mr. Lima went to All X-Ray Diagnostic Services to have x-rays taken of his spine. After American received the bill, it issued a check for $604.80. Thereafter, American was served with a demand letter for the difference between 80% of the amount billed and the amount paid by American. Gables Insurance Recovery, Inc. (“Gables”) instituted this suit to recover the outstanding PIP benefits allegedly due for the x-rays taken of the insured on February 29, 2008.Conclusions of Law:
The crux of this case is whether American is responsible for 80% of reasonable and necessary medical expenses (including x-rays) or 80% of 200 percent of the applicable Medicare Part B fee schedule. The issue arose from the 2008 version of the PIP statute, which permitted an insurer to limit reimbursement and incorporated the Medicare Part B Fee schedule.
Both parties filed motions for summary judgment and agreed that there are no genuine issues of material facts. The sole issue for this court’s consideration involves the interpretation of Florida’s Motor Vehicle No Fault Law and the policy in effect at the time of Mr. Lima’s accident, which is a question of law.
Our Supreme Court has spoken on the applicable standard to use in both statutory interpretation and insurance policy interpretation cases. With regard to statutory interpretation, the Court stated:
Before resorting to the rules of statutory interpretation, courts must first look to the actual language of the statute itself. Joshua v. City of Gainesville, 768 So. 2d 432, 435 (Fla. 2000); accord BellSouth Telecomms., Inc. v. Meeks, 863 So. 2d 287, 289 (Fla. 2003). As this Court has often repeated:
When the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent. See Lee County Elec. Coop., Inc. v. Jacobs, 820 So. 2d 297, 303 (Fla. 2002). In such instance, the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent. See State v. Burris, 875 So. 2d 408, 410 (Fla. 2004). When the statutory language is clear, “courts have no occasion to resort to rules of construction-they must read the statute as written, for to do otherwise would constitute an abrogation of legislative power.” Nicoll v. Baker, 668 So. 2d 989, 990-91 (Fla. 1996).
Daniels, 898 So.2d at 64-65. However, if the statutory intent is unclear from the plain language of the statute, then “we apply rules of statutory construction and explore legislative history to determine legislative intent.” BellSouth Telecomms., Inc., 863 So. 2d at 289.
See Koile v. State 934 So.2d 1226, 1230-1231 (Fla. 2006). With regard to insurance policy interpretation, the court recently in Penzer v. Transportation Insurance Company, 29 So. 3d 1000 (Fla. 2010), stated:
In interpreting insurance contracts, this Court follows the generally accepted rules of construction, meaning that “[i]nsurance contracts are construed according to their plain meaning, with any ambiguities construed against the insurer and in favor of coverage.” U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So. 2d 871, 877 (Fla. 2007) (citing Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 532 (Fla. 2005)). “If the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and another limiting coverage, the insurance policy is considered ambiguous.” Garcia v. Fed. Ins. Co., 969 So. 2d 288, 291(Fla. 2007) (quoting Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000)). To find in favor of the insured on this basis, however, the policy must actually be ambiguous. Garcia, 969 So. 2d at 291 (citing Taurus Holdings, 913 So. 2d at 532). “A provision is not ambiguous simply because it is complex or requires analysis. . . . ‘[I]f a policy provision is clear and unambiguous, it should be enforced according to its terms.’ ” Garcia, 969 So. 2d at 291 (citation omitted) (quoting Taurus Holdings, 913 So. 2d at 532).
29 So. 3d at 1005.
Initially, this Court must determine whether section 627.736 of the 2008 enactment of the PIP statute permits the insurer to select whether it will pay 80% of reasonable and necessary medical expenses or 80% of 200 percent of the applicable Medicare Part B fee schedule. Section 627.736(1)(a) requires the insurer to provide personal injury protection of “[e]ighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services. . .” Subsection (5)(a)1 provides:
Any physician, hospital, clinic, or other person or institution rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance maycharge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered. . . With respect to a determination of whether a charge for a particular service, treatment, or otherwise reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical bee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement.
This section clearly speaks to the reasonableness of the charge; it provides a method for calculating “reasonableness.” Subsection (5)(a)2. permits the insurer to limit reimbursement and provides an alternative method. That section states:
2. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
f. for all medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B.
The use of the word “may” in these two provisions lead to the conclusion that the statute presents alternative and permissive fee schedules in the payment of covered claims. This conclusion is further supported by a plain reading of subsections (5)(a) 4. and 5.
4. Subparagraph 2 does not allow the insurer to apply any limitation on the number of treatments or other utilization limits that apply under Medicare or worker’s compensation. An insurer that applies the allowable payment limitations of subparagraph 2. must reimburse a provider who lawfully provided care or treatment. . .
5. If an insurer limits payments as authorized by subparagraph 2, the person providing such supplies. . .
(Emphasis added). Of special note is that the statute clearly uses conditional language by the use of the words “if an insurer limits payments.” Thus, given a plain reading of the statute, the Legislature did not intend to mandate the use of the Medicare Part B fee schedule in all PIP policies. Instead, it permits an insurer the option of 80% of 200 percent of Medicare Part B as a limitation on its payments.
Next, the Court must look to the language of the policy to determine whether American chose one of the statutory alternatives. The policy at bar provides:
PERSONAL INJURY PROTECTION COVERAGE INSURING AGREEMENT
A. We will pay, in accordance with the Florida Motor Vehicle No Fault Law, personal injury protection benefits to or for an insured who sustains bodily injury. The bodily injury must be caused by an accident arising out of the ownership, maintenance, or use of motor vehicle.
B. Subject to the limits shown in the Declarations, personal injury protection benefits consist of the following:
1. Medical Expenses. 80% of reasonable expenses medically necessary:
a. Medical, surgical, X-ray, dental, ambulance, hospital, professional nursing, and rehabilitative services; and
b. Prosthetic devises.
LIMIT OF LIABILITY
D. Any medical expenses payable under this coverage shall be limited to 80% of the following maximum charges set forth in the Florida Motor Vehicle No Fault Law:
6. For all other medical services, supplies, and care, 200% of the applicable Medicare Part B fee schedule.
American argues that pursuant to Mr. Lima’s insurance policy, it is responsible for 80% of the 200% provided for the applicable Medicare Part B Fee Schedule. The policy provides that subject to the Declarations, the insured will pay 80% of reasonable expenses medically necessary for services, including X-rays, which are at issue here. American, however, maintains that the statute must be read as a whole and that the court must consider the language that limits liability to the 80% of the 200% of the Medicare Part B Fee Schedule.
The Declarations Page provides a summary of coverage, which includes the Personal Injury Protection Option. The Forms and Endorsements description of coverage provides:
Medical Benefits – pays 80% of all reasonable expenses incurred for medically necessary surgical, X-ray, dental and rehabilitative services, as well as necessary ambulance, hospital and nursing services.
Nowhere in the policy or Declarations does American limit its liability. Rather, the policy and endorsements contain the same language, i.e., that American will pay 80% of all reasonable expenses incurred for medically necessary X-rays.
Even if, for argument’s sake, the court considers that American intended to limit its liability by including the above quoted language under the title “LIMIT OF LIABILITY” in its policy, the result would be the same. When the policy’s coverage and liability provisions are read together, there is an ambiguity as to the insurer’s payment responsibility. And, when interpreting an insurance contract, any ambiguities must be construed against the insurer and in favor of coverage.
Accordingly, it is ORDERED and ADJUDGED, that Plaintiff’s Motion for Summary Judgment is hereby GRANTED; and Defendant’s Motion for Summary Judgment is hereby DENIED.
