18 Fla. L. Weekly Supp. 552a
.Online Reference: FLWSUPP 1806ADVA
Insurance — Personal injury protection — Coverage — Provision of 2008 PIP statute allowing insurer to limit reimbursement to 200% of Medicare fee schedule is permissive — Policy language providing that insured will pay 80% of reasonable expenses controls reimbursement
ADVANCED 3-D DIAGNOSTICS A/A/O BENITO FRANCOIS, Plaintiff, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2010-SC-3640-(73). January 11, 2011. Honorable Heather L. Higbee, Judge. Counsel: Adam Saben, Shuster & Saben, LLC, Miami, for Plaintiff. Krystal Yearwood, Law Office of Christopher Norris, Orlando, for Defendant.
ORDER ON PLAINTIFF’S MOTION AND DEFENDANT’SCROSS-MOTION FOR SUMMARY JUDGMENT AS TOAPPLICABILITY OF THE MEDICARE FEE SCHEDULE
THIS CAUSE came before the Court for hearing on November 17, 2010 on Plaintiff’s and Defendant’s Cross-Motions for Summary Judgment. The Parties agree that there are no material disputed issues of fact and this matter may be disposed of as a matter of law. The Court, having reviewed the motion and entire Court file; relevant legal authorities; heard argument, and been sufficiently advised in the premises, finds as follows:Background
This is a case for unpaid P.I.P. benefits. Benito Francois received diagnostic testing from Plaintiff on June 29, 2009 for injuries from an automobile accident on April 18, 2009. Defendant asserted as a defense to payment that it properly paid Plaintiff’s claim according to the reimbursement limitations set forth in F.S. s. 627.736 (“2008 fee schedule”). The Plaintiff argues that the defendant is bound by the plain language of its policy, wherein it states that the Defendant shall pay for 80% of medical expenses, and cannot rely on the permissive language in the 2008 no-fault act but, rather, is bound to the contractual language of its policy.
The policy language, as stipulated by the parties, states as follows:
We will pay in accordance with the Florida Motor Vehicle No-Fault Law. . .
1. Medical Expenses, 80% of reasonable expenses for “medically necessary”:
a. Medical, surgical, X-ray, dental, ambulance, hospital, professional nursing and rehabilitative services; and,
b. prosthetic devices.
In this case, nothing in the contract indicates that the insurer was going to limit payments as permitted by Fla. Stat. §627.736(5)(a)(2).
Legal Conclusions:
The court finds that the case of State Farm Florida Insurance Company v. Nichols, 21 So. 3d 904 (Fla. 5th DCA 2009) [34 Fla. L. Weekly D2275b] 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 it 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 statutory language “may” limit payment language 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 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.
In this case, the policy at issue provided that the insurer will pay eighty percent (80%) of all reasonable expenses for medically necessary treatments. The policy itself did not make reference to the Medicare Part B Fee Schedule or Fla. Stat. § 627.736(5)(a)(2). The only relevant provision in the policy which referenced the Florida Statutes was the provision which stated that benefits were to be paid “in accordance with the Florida Motor Vehicle No Fault Law.”
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). As such, it is this Court’s holding that payment in accordance with 627.736(5)(a)(2) (2008) entitled the Plaintiff to be reimbursed a reasonable amount for the services at issue. Also see, The Personal Injury Clinic a/a/o Yudith Montero, v. Mercury Insurance Company of Florida, 17 Fla. L. Weekly Supp. 470a (11th Judicial Circuit, Miami-Dade County Judge Ana Maria Pando, March 2, 2010), Hallandale Beach Orthopedic a/a/o Bianca Gonzalez v. United Automobile Insurance Company, (11th Judicial Circuit, Miami-Dade County Judge Linda Singer-Stein, March 4, 2010, case 09-27840), Pembroke Pines MRI, Inc. a/a/o Vianka Tolentino, (15th Judicial Circuit, Broward County Judge Robert Lee, January 4, 2010 case 09-008339), Virtual Imaging Services a/a/o Yraida Herrera v. GEICO General Insurance Company, 17 Fla. L. Weekly Supp. 1111a (11th Judicial Circuit, Miami-Dade County Judge Eric Hendon, June 17, 2010), National Nuclear Center, Inc. d/b/a Hollywood Diagnostic Center a/a/o Maria Lamothe v. State Farm Mutual Automobile Insurance Company, 17 Fla. L. Weekly Supp. 1124b (15th Judicial Circuit, Broward County Judge Lisa Trachman, April 22, 2010), Professional Medical Corp., Inc., a/a/o Luis Isev v. United Automobile Insurance Company, (11th Judicial Circuit, Miami-Dade County Judge Nuria Saenz, October 27, 2009, case number 09-3871 CC25).
Accordingly, the Court grants Plaintiff’s Motion for Summary Judgment and denies the Defendant’s Motion for Summary Judgment and finds the 2008 fee schedule inapplicable in this case because the plain language of the policy required the defendant to pay 80% of the medical expenses rather than limiting payment in accordance with the permissive language of the 2008 PIP statute.
As such, it is this Court’s holding that the insurer was to pay 80% of reasonable expenses in accordance with the applicable language of the insurance policy at issue.
Therefore, it is hereby ORDERED AND ADJUDGED that Plaintiff’s Motion for Summary Judgment is hereby GRANTED.
