18 Fla. L. Weekly Supp. 1038a
Online Reference: FLWSUPP 1810GONZ
Insurance — Personal injury protection — Coverage — Unambiguous policy language providing that insurer will pay 80% of reasonable expenses controls over permissive language of PIP statute that allows more limited reimbursement absent express adoption of permissive fee schedule by parties to insurance contract
GABLES INSURANCE RECOVERY, INC. a/a/o JULIO GONZALEZ, Plaintiff, vs. MERCURY INSURANCE INS. CO. OF FLORIDA, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 10-4863 SP 25. June 21, 2011. Honorable Gloria Gonzalez-Meyer, Judge. Counsel: Leandro Carvalho, Law Offices of Lyle B. Masnikoff & Associates, P.A., West Palm Beach, for Plaintiff. George Shirejian, Law Offices of Shirejian & Ohara, Aventura, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY DISPOSITION AS PER FLA. SM. CL. R. 7.135ON THE ISSUE OF MEASURE OF RECOVERABLE DAMAGES
THIS CAUSE, having come before the Court on June 21, 2011, on Plaintiff’s Motion for Summary Disposition As Per Fla. Sm. Cl. R. 7.135 On The Issue Of Measure of Recoverable Damages, and the Court having reviewed the applicable law, pleadings, affidavits, depositions, interrogatories, and all pertinent portions of the file, and having heard argument by the parties, hereby finds and concludes as follows:
FACTUAL STATEMENT
On November 16, 2008, JULIO GONZALEZ suffered bodily injuries as a result of an automobile accident. At the time of the automobile accident, JULIO GONZALEZ was provided coverage under a personal automobile insurance policy issued by Defendant, and identified as Policy No.: 090105100025474 66. The subject policy, which provided Personal Injury Protection with effective dates of September 2, 2008, through March 2, 2009, was in full force and effect on the date of the motor vehicle accident. The policy states that MERCURY will pay:
1. Medical expenses
Eighty percent (80%) of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitive services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services. Such benefits shall also include necessary remedial treatment and services recognized and permitted under the laws of the state for an injured person who relies upon spiritual means through prayer alone for healing, in accordance with his or her religious beliefs, as permitted under the law of the State of Florida.
JULIO GONZALEZ received medical services and treatment from ALL X-RAY DIAGNOSTIC SERVICES, CORP., for the injuries suffered as a result of the automobile accident. JULIO GONZALEZ gave the reference medical provider above an assignment to recover PIP benefits under the respective insurance policy, and the medical provider min turn assigned its right to recovery to Gables Insurance Recovery, Inc. (“GIR”). ALL X-RAY DIAGNOSTIC SERVICES, CORP. submitted the medical bills for payment in a timely manner, and GIR furnished Defendant with its Demand Letter after the bills for medical services were not paid in a timely manner. Defendant did not contend the medical treatment was not reasonable, related, or necessary. Defendant did not pay the provider’s bills per the usual and customary charges. Rather, Defendant applied the §627.736(5)(a)2, Fla. Stat. (2008), Medicare Part B Fee Schedule, giving rise to the instant lawsuit for PIP benefits.
The Defendant filed the affidavit of their Litigation Examiner, Sara Abreu, which did not contest the relatedness and/or medical necessity of the medical treatment provided to JULIO GONZALEZ. The affidavit of Sara Abreu does attest that Plaintiff’s medical expenses were paid in accordance with Florida Statute §627.736(5)(a) at 200% of Medicare Part B.
The Defendant has filed no admissible evidence to contest the relatedness and/or medical necessity of JULIO GONZALEZ’s medical treatment, therefore, this Court finds as a matter of law that JULIO GONZALEZ’s medical treatment on dates of services of November 20, 2008, was reasonable, related, and medically necessary.
The primary issue presented in this lawsuit concerns the scope of recoverable Personal Injury Protections (hereinafter “PIP”) benefits available under an insurance policy issued by the Defendant, MERCURY INSURANCE INS. CO. OF FLORIDA (“MERCURY”). Plaintiff has demanded the full and complete payment of PIP benefits for medical services rendered to the claimant. Defendant has refused to make payment of all benefits due and owing under the law and as per the policy applicable to this action.
Specifically, Defendant contends that it only owes a maximum policy benefit of 80% of 200% of the applicable Medicare Part B Fee Schedule, or if the services are not reimbursable under Medicare Part B, then 80% of the maximum reimbursable allowance under the workers’ compensation statute. Notwithstanding its contract language and other relevant part of the PIP statute, the insurance company believes its exposure is limited to that amount under §627.736(5)(a)2, Fla. Stat. (2008).
The Plaintiff argues that the plain language of the insurance policy is unambiguous and should dictate the payment of PIP benefits in this matter, therefore entitling Plaintiff to 80% of the $2,100.00 in medical expenses for the November 20, 2008, date of service. The Plaintiff further contends that it is entitled to be compensated at 80% of the $2,100.00 in medical expenses for the November 20, 2008, date of service because Florida Statute §627.736(1)(a) states that the insurer shall pay eighty percent (80%) of all reasonable expenses for medically necessary services. See §627.736(1)(a), Fla. Stat. (2008). The statute explains that reasonable expenses are determined by consideration of evidence of usual and customary charges and payments accepted by the provider in dispute, amongst other things. §627.736(5)(a)(1), Fla. Stat. (2008).
LEGAL CONCLUSION
This Court agrees with the Plaintiff that the plain language of the insurance policy is unambiguous and should dictate the payment of PIP benefits in this matter. It is indisputable that an insurance policy is a contract. See §624.02, Florida Statute. Under the terms of the subject insurance policy, the appropriate method of paying medical benefits would be the payment of 80% of reasonable expenses for medically necessary services. As such, the appropriate payment should have 80% of $2,100.00. The insured has a vested right to reimbursement of his/her medical bills pursuant to the terms of the contract he/she entered into. Dr. Robert S. Schwartz, DC, P.A. (Buitrago) v. United Auto Ins. Co., 16 Fla. L. Weekly Supp. 972b (17th Judicial Circuit Broward County August 14, 2009). The 2008 PIP statute limits the types of medical providers that can bill for PIP benefits, limits the type of care payable by PIP, and limits death benefits and lost wages, and requires insurers to reserve the first $5,000.00 in PIP benefits for any emergency care physicians specified therein, further limiting available benefits. See id; see also Fla. Stat §627.736(4)(c)(2008). Accordingly, the amendments do not simply alter the process of applying and enforcing the parties’ rights and liabilities, they substantially redefine the parties’ actual rights and liabilities. Alamo Rent-A-Car, Inc. Mancusi, 632 So.2d 1352, 1358 (Fla. 1994).
Defendant cannot now unilaterally incorporate into an insurance policy certain statutory provisions that create a conflict. An inherent role of the Florida No-Fault (PIP) Statute is to set forth the minimum requirements that an insurance policy must contain. No one, not even the legislature, can rewrite the agreement between insurer and insured. In this case, because the policy language provides broader coverage than the select portion of the 2008 PIP Statute that Defendant has chosen to utilize, the language of the policy — not the statute — controls and will determine the coverage provided. Please see Wright v. Auto-Owners Ins. Co., 739 So.2d 180 (Fla. 2d DCA 1999) [24 Fla. L. Weekly D2033a] (insurance policy stating it would pay in accordance with the No-Fault statute was broader than the statute and provided greater coverage that the minimum set forth in the statute). It is well settled that an insurance contract can always provide a greater benefit than that require by statute, and the parties are free to contract amongst themselves to add further responsibilities. Ins. Co. of North America v. Avis Rent-A-Car System, Inc., 348 So.2d 1147 (Fla. 1977). Yet here, Defendant has asserted it should be permitted to apply a statute that would reduce the benefits contracted for by the parties, absent a proper and detailed endorsement, and in violation of the Florida Constitution.
Based upon the foregoing, it is clear that the limitations set forth in §627.736(5)(a)(2), Fla. Stat., cannot be unilaterally imposed by Defendant, or incorporated into the subject insurance contract. As such, Defendant is liable to Plaintiff for failing to pay the disputed bills for service at 80% of the reasonable amount billed in accordance with the expressed policy language. Defendant lacked any authority to reduce payment of the disputed bills to the amounts payable pursuant to the Medicare Part B fee schedule, and by solely utilizing the amounts therein, as such a reduced payment was neither anticipated, nor authorized, by the insurance contract.
Next, Defendant is also liable for the unpaid balance of 80% of the reasonable expenses billed because Florida Statute §627.736(1)(a) states that the insurer shall pay eighty percent (80%) of all reasonable expenses for medically necessary services. See §627.736(1)(a), Fla. Stat. (2008). The statute explains that reasonable expenses are determined by consideration of evidence of usual and customary charges and payments accepted by the provider in dispute, amongst other things. §627.736(5)(a)(1), Fla. Stat. (2008).
Notwithstanding the foregoing, the legislature created an optional alternative fee schedule insurance policy contains any provisions which may arguably attempt to reference the permissive fee schedule provisions of Section 627.736(5)(a)2-5, this Court finds that such provisions are ambiguous and in conflict with the clear and unambiguous provision of the insurance policy which states that medical expenses will be paid using the ‘80% of reasonable expenses’ method. Such ambiguities and conflicts must be construed against the Insurance Company, as the drafter of the insurance policy.”
Thus, the subject policy of insurance must, at a minimum, be construed against the Defendant and require that Defendant pay the Plaintiff’s reasonable charges at 80% in accordance with the broadest coverage possible. So, regardless of the path Defendant attempts to take, it always leads back to the same conclusion — Defendant must pay PIP benefit at 80% of the reasonable amount billed.
Based on the foregoing, it is clear that Florida law requires Defendant to pay the reasonable expenses submitted by Plaintiff at 80%, absent express adoption of the permissive fee schedule by the parties to the insurance contracts. See Life Ins. Co. of North America v. Cichowlas, 659 So.2d 1333 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D2032a] (Courts should not impose contractual rights and liabilities upon parties which they themselves did not make part of the contract). As such, Defendant is liable to Plaintiff and judgment is entered in Plaintiff’s favor against Defendant in this action.
ORDERED and ADJUDGED that Plaintiff’s Motion For Summary Disposition Per Fla. Sm. Cl. R. 7.135 on the Issue of Measure of Recoverable Damages be and the same are hereby GRANTED.
