18 Fla. L. Weekly Supp. 302b
Online Reference: FLWSUPP 1803GABL
Insurance — Personal injury protection — Coverage — Where permissive language of 2008 PIP statute does not mandate use of Medicare Part B fee schedule in all policies, and insured’s policy provides that insurer will pay 80% of reasonable expenses and does not limit insurer’s liability, policy controls reimbursement — Even if policy language providing that insurer will pay in accordance with exclusions of Florida Motor Vehicle No-Fault Law as amended was intended to limit liability, ambiguity created by all policy provisions read together must be construed against insurer
GABLES INSURANCE RECOVERY, INC., a/a/o SANDRA POSADA, Plaintiff, vs. GOVERNMENT EMPLOYEES INSURANCE CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 10-3249 SP 25-1. November 3, 2010. Honorable Gloria Gonzalez-Meyer, Judge. Counsel: Leandro Carvalho, Law Offices of Lyle B. Masnikoff & Associates, P.A., West Palm Beach, for Plaintiff. Rebecca Brock, Law Offices of Timothy W. Harrington, Miami, for Defendant.
ORDER ON PLAINTIFF’S SECOND AMENDED MOTION FOR SUMMARY DISPOSITION ASPER FLA. SM. CL. R. 7.135 ON THE ISSUE OFMEASURE OF RECOVERABLE DAMAGES
THIS CAUSE, having come before the Court on November 3, 2010, on Plaintiff’s Second Amended 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:
Findings of Fact:
The material facts in this case are not in dispute. SANDRA POSADA was involved in a motor vehicle accident on March 31, 2009. At the time of the accident, SANDRA POSADA was insured under a personal automobile insurance policy issued by GOVERNMENT EMPLOYEES INSURANCE CO. (“GEICO”), with a policy period of March 3, 2009, through Sept. 1, 2009.
Two days after the accident, SANDRA POSADA went to All X-Ray Diagnostic Services, Corp., for medical services. After the GEICO received the bill, it issued a check for $256.72. Thereafter, GEICO was served with a demand letter for the difference between 80% of the amount billed and the amount paid by GEICO. Gables Insurance Recovery, Inc. (“Gables”) instituted this suit to recover the outstanding PIP benefits allegedly due for medical services provided on April 2, 2009.
Conclusions of Law:
The crux of this case is whether GEICO is responsible for 80% of reasonable and necessary medical expenses (including x-rays) or 80% of 200% 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 SANDRA POSADA’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) [25 Fla. L. Weekly S641a]; accord BellSouth Telecomms., Inc. V. Meeks, 863 So.2d 287, 289 (Fla. 2003) [28 Fla. L. Weekly S775b]. As this Court has often repeated:
When the statute is clear and unambigous, 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) [27 Fla. L. Weekly S379a]. 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) [29 Fla. L. Weekly S149a]. When the statutory language is clear, “courts have no occassion 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) [21 Fla. L. Weekly S96a].
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 [28 Fla. L. Weekly S775b].
See Koile v. State, 934 So.2d 1226, 1230 – 1231 (Fla. 2006) [31 Fla. L. Weekly S501a]. With regard to insurance policy interpretation, the court recently in Penzer v. Transportation Ins. Co., 29 So.3d 1000 (Fla. 2010) [35 Fla. L. Weekly S73a], 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.” US Fire Ins. Co. V. J.S.U.B., Inc., 979 So.2d 871, 877 (Fla. 2007) [32 Fla. L. Weekly S811a] (citing Taurus Holdings, Inc. V. US Fid & Guar. Co., 913 So.2d 528, 532 (Fla. 2005) [30 Fla. L. Weekly S633a]). “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 ambigous.” Garcia v. Fed. Ins. Co., 969 So.2d 288, 291 (Fla. 2007) [32 Fla. L. Weekly S657a] (quoting Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla. 2000) [25 Fla. L. Weekly S211a]). 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 may chargethe 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 fee schedules applicable t automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursements.
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 conlcusion that the statute presents alternative and permissive fee schedules in the paymnet of covered claims. This conclusion is further supported by a plain reading of subsections (5)(a)4. and 5.
4. Ubparagraph 2 does not allow the insurer to apply any limitation on the number of treatments or other utilization limits that apply under Medicare or workers’ compensaton. An insurer that applies the allowable payment limitation 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 GEICO chose one of the statutory alternatives. The policy provides:
SECTION II-PERSONAL INJURY PROTECTION COVERAGE AND AUTOMOBILE MEDICAL PAYMENTS
PART 1-PERSONAL INJURY PROTECTION
PAYMENTS WE WILL MAKE
The Company will pay, in accordance with the Florida Motor Vehicle No-Fault Law, as amended, to or for the benefits of the injured person:
(a) 80% of medical expenses[.]
DEFINITIONS
“Medical expenses” means reasonable expenses for necessary medical, surgical, x-ray, dental, ambulance, hospital, professional nursing and rehabilitative services for prosthetic devices and for necessary remedial treatment for 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 religious beliefs.
GEICO argues that pursuant to SONDRA POSADA’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. GEICO, however, maintains that the statute must be read as a whole and that the court must consider the language “as amended” to allow GEICO to limit 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 Automobile Policy Amendment provides:
SECTION II: PART I-PERSONAL INJURY PROTECTION COVERAGE AND AUTOMOBILE MEDICAL PAYMENTS
PART 1-PERSONAL INJURY PROTECTION
DEFINITIONS
3. Medical expenses means reasonable expenses for medically necessary medical, surgical, x-ray, dental, ambulance, hospital, professional nursing and rehabilitative services for prosthetic devices and for necessary remedial treatment and services recognized and permitted under the laws of the state for an injured person.
PAYMENTS WE WILL MAKE
Under Personal Injury Protection, the Company will pay, in accordance with, ans subject to the terms, conditions, and exclusions of the Florida Motor Vehicle No-Fault Law, as amended, to or for the benefits of the injured person
(a) 80% of medical expenses[.]
Nowhere in the policy, Declarations, or Automobile Policy Amendments does GEICO limit its liability. Rather, the policy and endorsements contain the same language, i.e., that GEICO will pay 80% of medical expenses incurred for medically necessary treatment.
Even if, for arguments sake, the court considers that GEICO intended to limit its liability by including the above quoted language under the phrase “as amended” in its policy, the result would be the same. When a 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 ambiguitiues must be construed against the insurer and in favor of coverage. ORDERED and ADJUDGED that Plaintiff’s Second Amended 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.
