18 Fla. L. Weekly Supp. 393a
Online Reference: FLWSUPP 1804PROC
Insurance — Personal injury protection — Coverage — Provision of 2008 PIP statute allowing insurer to limit reimbursement to 200% of Medicare fee schedule is permissive — Where policy is insufficient to place insured on notice that insurer will calculate payments based on Medicare fee schedule or apply OPPS reductions, policy language providing that insurer will pay 80% of reasonable charges controls reimbursement
AURORA MEDICAL IMAGING LLC, dba Aurora Open MRI, a/a/o Sonhe Proctor, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 1st Judicial Circuit in and for Escambia County. Case No. 2010 SC 002508, Division V. Janaury 10, 2011. Patricia A. Kinsey, Judge. Counsel: Robert N. Heath, Jr., Robert N. Heath, P.A., Pensacola, and Lorca J. Divale, The Divale Law Group, P.A., St. Petersburg, for Plaintiff. John L. Morrow and Matthew J. Corker, Conroy, Simberg, et al., Orlando, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
At a hearing in open court on January 5, 2011, the parties appeared through counsel. At issue were competing motions for summary judgment. The court reviewed the entire court file, the notebooks submitted by counsel, considered the arguments made in open court and finds as follows. The underlying facts are undisputed; that is, the plaintiff provided an MRI to defendant’s insured and the invoice reflected a service that was medically necessary, reasonable and related to a covered motor vehicle collision. This leaves only the issue of whether State Farm properly paid for the MRI services plaintiff provided. Plaintiff argues defendant is bound by the terms and conditions of the insurance policy issued by defendant prior to January 1, 2008. At that time, Florida law required every PIP policy to pay 80% of all reasonable expenses for medically necessary medical care and further required that no charge could be in excess of what the provider customarily charged for like services. See §627.736(l) and (5), Florida Statutes (2007).
Defendant argues that insurance is a regulated industry whose actions are controlled by the legislature which currently dictates that the reimbursement of charges must be limited to 200% of Medicare Part B and further decreased by any amendments or offsets provided by any other fee schedules so published. They rely on the statute which specifically states that any and all amendments to the PIP statute apply to any and all policies in effect at the time of the change. Defendant also argues that the language later added to the policy in the form of an amendment refers to the No Fault Act and thereby incorporates any and all PIP law changes as they occur.
It is undisputed that State Farm’s insured, Sonhe Proctor, purchased his policy more than two years ago and that State Farm has renewed the policy at least two times leading up to the coverage at issue. It is undisputed that plaintiff properly submitted an invoice for the MRI services provided on December 11, 2009, in the amount of $1,294.00. The parties stipulated in writing and filed with the court on November 1, 2010, that “. . . the diagnostic imaging services were reasonable, medically necessary and related to the subject accident.” See paragraph 3 of the Joint Stipulation of Facts and General Stipulation. It is undisputed that State Farm issued a check for the services at issue in the amount of $540.10, which was calculated by taking 200% of Medicare Part B less the OPPS reduction. Therefore the only question for the court is whether or not, as a matter of law, State Farm can apply the fee schedule in §627.736(5)(a)(2)(f) further limited by OPPS.
The insurance policy issued by State Farm reads in part as follows: “[w]e will pay in accordance with the No Fault Act for bodily injury to an insured, caused by an accident resulting from the ownership, maintenance or use of a motor vehicle: 1. Medical Expenses. 80% of the reasonable charges incurred for necessary: (a) medical, surgical, Xray, dental, ambulance, hospital, professional nursing and rehabilitative services, . . .”
An amendment adds the following language: What we pay is changed to read: 1. Medical Expenses. 80% of the reasonable charges incurred for necessary: (a) medical, surgical, Xray, dental, ambulance, hospital, professional nursing and rehabilitative services, . . .” and then adds, “[t]o determine whether a charge is reasonable we may consider usual and customary charges and payments accepted by the provider, reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment or supply. We will not pay any charge that the No Fault Act does not require us to pay, or the amount of any charge that exceeds the amount the No Fault Act allows to be charged.”
The court finds that this language is insufficient to place the insured on notice that State Farm will calculate payments on Medicare Part B as further limited by any fee schedules including but not limited to OPPS. The policy itself does not make reference to Medicare Part B or the OPPS fee schedule or reference Florida Statute §627.736(5)(a)(2)(f). Further, the PIP statute makes this method of determining reimbursement merely “permissive.” This must be read in conjunction with the mandatory language of §627.736(l)(a) which states that every PIP policy shall reimburse 80% of all reasonable expenses. The defendant’s amendment to the policy is more properly regarded as a list of factors to determine whether a charge is reasonable and the defendant cannot arbitrarily use one factor (Medicare Part B and fee schedules) as the sole basis for determining reimbursement amounts. Because the statutory language is merely permissive and because the limiting language is not referenced in the policy, State Farm is obligated to pay 80% of reasonable charges regardless of the limitations permitted by Florida Statute §627.736(5)(a)(2)(f). Since the policy language controls and the parties stipulated that $1,294,00 was reasonable, State Farm should have paid $1,035.20 rather than $545.10 and it is
ORDERED AND ADJUDGED that plaintiff shall recover from defendant $490.10 plus interest from December 16, 2009 at 6% per annum for which let execution issue.
FURTHER ORDERED that the court reserves jurisdiction over attorney’s fees and costs finding the plaintiff is the prevailing party.
