17 Fla. L. Weekly Supp. 1037a
Online Reference: FLWSUPP 1710AQUI
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
MILLENNIUM RADIOLOGY, LLC., (Dania Aquino) Plaintiff(s), vs. US SECURITY INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO 09-10863 (73). July 14, 2010. Steven Deluca, Judge. Counsel: Amir Fleischer, Marks & Fleischer, P.A., Fort Lauderdale, for Plaintiff. David Pakula, for Defendant.ORDER GRANTING PLAINTIFF’S MOTION FORFINAL SUMMARY JUDGMENT AND DENYINGDEFENDANT’S MOTION FOR FINALSUMMARY JUDGMENT
THIS CAUSE having come on to be heard before me on Plaintiff’s and Defendant’s Cross Motions for Final Summary Judgment and the Court having reviewed the Motion and court file; reviewed the relevant legal authorities; and heard the argument of counsel; and being otherwise fully advised in the premises, the court finds as follows:
On May 28, 2009, Plaintiff, Millennium Radiology, LLC, provided a MRI to Dania Aquino for injuries related to her March 3, 2009 motor vehicle accident. Pursuant to an assignment of benefits, Plaintiff billed Defendant $2,150.00 for the MRI provided to its insured, Dania Aquino. In response, Defendant paid $984.42 by applying the “Medicare Fee Schedule” limitation on reimbursement option found in §627.736(5)(a)(2)-(5) Fla. Stat. (2008). Defendant alleges and maintains it “paid the appropriate amount pursuant to Florida Statute §627.736(5)(A)(2)(f) and (5)(A)(3).” Defendant issued the policy covering Dania Aquino on January 15, 2009 for a six month policy period through July 15, 2009. The policy language, as stipulated by the parties, states as follows:
The Company will pay, in accordance with the Florida Motor Vehicle No Fault Law, as amended, to or for the benefit of the injured person:
1. 80% of medical expenses; and
2. 60% of work loss;
. . . . .
The Parties have stipulated that the sole issue to be decided by the Court is whether the limitation imposed by Fla. Stat. §627.736(5)(a)(2) (2008) is applicable. Aside from this legal issue, Defendant by stipulation has waived all other statutory and contractual defenses to payment.
The Parties each filed a final summary judgment seeking the court’s determination as to whether Defendant’s insurance contract incorporated the alternative limitation on reimbursement contained in Fla. Stat. §627.736(5)(a)(2) (2008) such that the contract would limit the amount of reimbursement to less than the Plaintiff’s reasonable charges. Plaintiff alleges the contract’s express promise does not limit reimbursement to the optional fee schedule enacted in Fla. Stat. §627.736(5)(a)(2) (2008) and therefore Defendant’s payment does not preclude the provider from seeking payment of the “reasonable amount” in excess of the fee schedule amount. Defendant contends Fla. Stat. §627.736(5)(a)(2) (2008) allows insurers the option to limit reimbursement of medical services according to amounts related to 200% of the Medicare Part B fee schedule and that they can decide at the time the bills are received which reimbursement schedule they wish to apply. Defendant further alleges that the language of the policy is sufficient to incorporate the optional limited reimbursement contained in the statute. For the reasons herein, this court agrees with the Plaintiff.
The 2008 version of Fla. Stat. §627.736 provides both required benefits and an optional limitation on reimbursement. Fla. Stat. §627.736(1)(a) requires payment of “eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services. . .” Fla. Stat. §627.736(5)(a)(2), however, provides that “the insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:. . .” and includes various reimbursement limitations for treatments such as emergency room services (limited to 80% of 75% of the Hospital’s usual and customary charge), non hospital inpatient services, other than emergency care, (200 percent of Medicare Part A prospective payment applicable to the specific hospital), and for “all other medical services, supply, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B” in Fla. Stat. §627.736(5)(a)(2)(f). Fla. Stat. §627.736(5)(a)(2) leaves no room for interpretation, and sets forth fixed reimbursement calculations for services provided. It does not take into consideration the reasonableness of the provider’s fee.
The policy itself does not make reference to the Medicare Part B Fee Schedule or Fla. Stat. §627.736(5)(A)(2) §627.736(5)(a)(2). In this case, the policy provides that the insurer shall pay 80% of medical expenses. Nothing in the contract indicates that the insurer was going to limit reimbursement as permitted by Fla. Stat. §627.736(5)(a)(2).
The court finds that the case of State Farm Florida Insurance Company v. Nichols, 21 So. 3d 904 (Fla. 5th DCA 2009) controls. In Nichols, the court looked to the language of the policy, not the statute, in determining an insurer’s responsibility where State Farm issued policies which required State Farm to pay the full amount of an appraisal award within sixty days of the award. State Farm, like the Defendant here, relied on a statute which states an insurer “may limit” payment and withhold funds until the homeowners entered into contracts for repairs. The policy, however, required State Farm to pay the full amount, regardless of the existence of repair contracts. The court held that the statutorylanguage “may limit payment was permissive, not mandatory, and that the statutory permission did not permit the insurer to exercise its discretion independent of the language in the contract. The holdings and analyses in Wright v. Auto-Owners Insurance Company, 739 So. 2d 180 (Fla. 2d DCA 1999) (The language of the policy, not the statute, determines the coverage provided entitled the insured to coverage because the policy language was broader than the statute and provided greater benefits than the statutory minimums) and Sturgis v. Fortune Insurance Company, 475 So. 2d 1272 (Fla. 2d DCA 1985) (An insurance contract can always provide a greater benefit than that required by statute as the statute only establishes minimal coverage and once those requirements are met, parties are free to contract between themselves to add any additional responsibility) are also instructive.
While Fla. Stat. §627.736(1)(a) is mandatory, Fla. Stat. §627.736(5)(a)(2) includes the permissive language “may limit.” This court holds that Fla. Stat. §627.736(5)(a)(2) is permissive, and not mandatory. As such, the provisions of the insurance policy control, which provides that the insurer shall pay 80% of reasonable expenses for medically necessary services. Nothing in the contract indicates the insurer was going to cap reimbursement to something less than the reasonable charge as set forth in Fla. Stat. §627.736(5)(a)(2). If the insurer had wished to take advantage of the opportunity afforded by the Legislature to limit reimbursement according to fixed formulas established by the permissive fee schedule, rather than a “reasonable” payment, then the contract must have included language that unequivocally limited reimbursement to the schedule set forth in Fla. Stat. 627.736(5)(a)(2). Suggesting that a policy can simultaneously incorporate a limited reimbursement fixed by a fee schedule while at the same time promise that it will reimburse a reasonable amount that is not limited by a fixed fee schedule renders the contract’s promise illusory. This court further disagrees with Defendant’s position that the statute operates independent of the contract to allow the insurance company to decide, as each bill is received, whether to pay it at 80% of the reasonable amount or a fixed reimbursement limited to 200% of Medicare. This could result in not only different providers treating the same insured being paid at different reimbursement levels, it could result in the same provider providing the same service, governed by the same policy, billing at the same amount, being reimbursed by the insurance company different amounts. Such a result would render the promise ambiguous and meaningless.
As such, it is this Court’s holding payment in accordance with 627.736(5)(a)(2) (2008) does not conclude the Defendant’s obligation to reimburse a reasonable amount and Plaintiff is entitled to be reimbursed a reasonable amount for the services at issue.
Therefore, it is hereby ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Summary Judgment is hereby GRANTED. Defendant’s Motion for Final Summary Judgment is DENIED. Defendant is obligated to reimburse Plaintiff at 80% of the reasonable amount for the MRI services performed by the Plaintiff and that the limited reimbursement schedule contained in Fla. Stat. §627.736(5)(a)(2) (2008) was not selected by Defendant in its contract and Defendant is therefore not permitted to limit reimbursement in accordance with that schedule. The reasonable fee stipulated by the Parties for Plaintiff’s services was $2,150.00. The court finds that pursuant to the policy of insurance, Defendant was obligated to pay $1,720.00. Defendant has previously paid $984.42. Therefore, Plaintiff, MILLENNIUM RADIOLOGY, LLC., shall recover damages from Defendant in the amount of $735.58 plus interest, which shall bear interest at the rate of 6% per year, for which let execution issue. The court also reserves jurisdiction to award Plaintiff’s attorneys fees and costs.
