18 Fla. L. Weekly Supp. 1055a
Online Reference: FLWSUPP 1810GELP
Insurance — Personal injury protection — Coverage — Where policy issued after enactment of 2008 version of PIP statute provides that insurer will pay 80% of reasonable expenses for medical services and does not indicate that insurer was going to limit reimbursement to 200% of allowable amount under Medicare fee schedule as permitted by 2008 statute, policy terms control reimbursement
HEALTH DIAGNOSTICS OF MIAMI, LLC d/b/a STAND-UP MRI OF MIAMI, a/a/o Alejandro Gelpi, Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 10-11246 CONO 73. June 7, 2011. Honorable Steven P. Deluca, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. Rashad El-Amin, Miami, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY DISPOSITION RE: BILL PAID PURSUANTTO F.S. 627.736(5); APPLICABILITY OF THE MEDICAREPART B FEE SCHEDULE TO PLAINTIFF’S BILLSAND GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT
THIS CAUSE having come before the court on May 11, 2011 for hearing on the Parties’ Cross Motions for Final Summary Judgment, and the Court having reviewed the motions, attachments; entire court file and relevant legal authorities; having heard the argument of counsel; and having been sufficiently advised in the premises, finds as follows:
1. This lawsuit involves a dispute over the proper interpretation and application of the statute that defines personal injury protection insurance benefits in Florida. The parties disagree over their respective right and obligations arising from Florida Statute. §627.736(1)(a), §627.736(a)(1), and §627.736(5)(a)(2)(a-f).
2. The parties both claim undisputed facts allows the court to enter Summary Judgment with respect to the legal question of whether defendant satisfied its contractual obligation to reimburse No Fault benefits by applying §627.736(5)(a)(2)(f)(2008).
3. The undisputed fact that United Automobile Insurance Company issued a policy of insurance to Alejandro Gelpi affording her person injury protection benefits. The policy was issued on August 29, 2009 and effective through August 29, 2010. No endorsements were issued by United Automobile Insurance Company during the policy period of August 29, 2009 to August 29, 2010; according to the policy of insurance issued by UNITED on August 29, 2009, UNITED agreed that it would pay eighty percent (80%) of all medically necessary expenses as follows: (Please See Defendant’s Policy of Insurance Attached hereto as exhibit “A”)Section IPersonal Injury Protection
The Company will pay, in accordance with the Florida Motor Vehicle No-Fault Law, to or for the benefit of the inured person:
(a) medical benefits – eighty percent of all medically necessary expenses defined as a medical service or supply that a prudent physician would provide for the purpose of preventing, diagnosing, or treating an illness, injury, disease, or symptom that is:
(a) In accordance with generally accepted standards of medical practice;
(b) Clinically appropriate in terms of type, frequency, extent, site and duration; and
(c) not primarily for the convenience of the patient, physician or health care provider.
4. The parties served competing Motions for Final Summary Judgment, both claiming the remaining issue in this case is a question of law. As explained below, the court finds the Plaintiff’s Motion well taken, and as a result Defendant’s Motion must be denied.
5. The crux of this dispute is whether the insurer is required to specifically incorporate into the policy, its right to limit reimbursement to the No Fault Statute’s permissive Medicare-based fee schedule, when the language of the policy specifically refers to a different method to determine the amount it will pay.
6. Aside from this legal issue of statutory construction, there are no other statutory or contractual defenses to payment.
7. At the time the policy was issued in 2009 the revived No-Fault Act (2008) was in effect and provided two methods of reimbursement as follows:
§627.736 Required personal injury protection benefits; exclusions; priority; claims. —
(1) REQUIRED BENEFITS. — Every insurance policy complying with the security requirements of §627.733 shall provide personal injury protection . . . . . as follows:
(a) Medical benefits. — Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services . . .
§627.736(5)(a)(1) defines reasonable charges:
5) CHARGES FOR TREATMENT OF INJURED PERSONS. —
(a)1. Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section . . . . In no event, however, may such a charge be in excess of the amount the person or institution customarily charges for like services or supplies. With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charge 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 to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement of the service, treatment or supply.
§627.736(5)(a) 2. a-f provides an alternative method of reimbursement.
2. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
(f) For all other medical services, supplies and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B. However, if such services, supplies or care is not reimbursable under Medicare Part B, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time of services, supplies or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation is not required to be reimbursed by the insurer.
8. Thus the new PIP statute provides both a mandatory and permissive method of reimbursement. Giving effect to both provisions means that an insurer is required to pay 80% of all reasonable expenses, but has the option to limit its reimbursement obligation and pay a fixed fee for individuals. Because the new PIP statute in effect since January 1, 2008 now contains mandatory and permissive language regarding the amounts that insurance will pay for medical claims, it is important for the PIP insurance company to clearly and unambiguously chose and identify its selected payment methodology in the PIP insurance policy itself.
9. According to the quoted language in insurer’s own “personal injury protection” provision of its insurance policy (Paragraph 3; Exhibit A), the insurer has expressly agreed to reimburse PIP claims at 80% of all medically necessary expenses which is consistent with the methodology described in Fla. Stat. §627.736(1)(a) and Fla. Stat. §627.736(5)(a)(1), but not the permissive methodology described in Fla. Stat. §627.736(5)(a)(2)(a-f)(2008). Nowhere in the policy does the insurer refer to the limitation contained in the new PIP law notwithstanding the fact that the policy was issued almost a year after the 2008 No Fault Law was passed by the legislature. Defendant argues that the statute nevertheless incorporated into the policy, and, therefore Defendant has the unilateral right to alter the payment methodology, when it chooses, as provided in the statute — despite its express promise to reimburse all without restriction or limitation medically necessary expenses.
10. In this court’s view, Defendant’s argument ignores controlling case law in Florida. Most recently, the Fifth District Court of Appeal considered an analogous case involving a claim under a homeowners policy. State Farm Florida Ins. Co. v. Nichols, 21 So.3d 904 (Fla. 5th DCA, 2009) [34 Fla. L. Weekly D2275b]. In Nichols, the insurer argued that it was entitled to pay in accordance with the limitation language in a statute that was not specifically mentioned in the policy, while at the same time the policy provided a means to determine payments. The appellate court, however, considered the “may limit” language appearing in the sink hole insurance statute to be permissive. Similarly, the language “may limit” appears in the new No-Fault statute. As in Nichols, the insurance policy in this case expressly states that the insurance company will pay for claims pursuant to a particular methodology (80% of incurred medically necessary expenses.) The “reasonable amount” methodology corresponds to the mandatory language contained in §627.736(1)(a) of the new PIP statute. Because the new PIP statute also states that PIP insurer may apply the new fee schedule listed in Fla. Stat. §627.736(5)(a)(2)(2008), this provision is permissive, not mandatory and the policy language that requires payment in accordance with the reasonable amount methodology specified in Fla. Stat. §627.736(1)(a) is “not in conflict with the [permissive methodology set forth in the new] statute and is therefore binding on parities to the insurance contract.” Nichols at 905.
11. If the Defendant wanted to take advantage of the permissive fee schedule, it should have clearly and unambiguously selected that payment methodology in its insurance policy so that the insured patient and health care providers would be aware of it. MRI associates of St. Pete v. Safeco, 17 Fla. L. Weekly Supp 686a (Hillsborough County Court Case No. 09-12673, May 20th, 2010) Maryland Casualty Company v. Murphy, 342 So. 2d 1051 (Fla. 3d DCA, 1977) In order to rely on statutory provisions allowing an insurance company to prohibit assignment of benefits, insurance company was required to include a provision to that effect in its insurance policy). In both Nichols and the instant case, the insurer failed to incorporate the permissive language that was contained in the statute in the policy. As in Nichols, the language contained in this contract for insurance sold by United Automobile Insurance Company is not in conflict with the statute and is therefore binding on the parties to the insurance contract.
12. Defendant further contends that both Fla. Stat. §627.7407 (2008) as well as the policy language “we will pay in accordance with Florida Motor Vehicle No Fault Law as amended” operates to restrict the express promise of a [reasonable] medically necessary expenses. The court disagrees. Neither Fla. Stat. §627.7407 nor the policy’s reference to the Florida Motor Vehicle No Fault Law alters the express promise of the contract. §627.7407 (7) Fla. Stat. (2008) specifically incorporates the statute, into the existing policies, “to add personal injury protection coverage as required by this section.” The legislative purpose clearly expressed, is to add “required” coverage. Incorporating a statute into a policy is designed to ensure that the policy meets the statutory minimums for coverage but never to preclude an insurance company from offering greater coverage than that required by statute. See Wright v. Auto-Owners Insurance Co., 739 So.2d 180 (Fla. 2d DCA, 1999) (Policy provisions requiring payment in accordance with the PIP statute). These cases are consistent with the result reached in Nichols, because they confirm that when the insurance policy provides greater coverage than the minimum amount required by statute, the terms of the policy will control. As a result, this court concludes, consistent with Nichols, that the Defendant is obligated to pay what was promised in the contract, “all medically necessary expenses,” regardless of the limitation contained in the statute.
13. United alternatively contends that the reasonable amount considerations contain in Fla. Stat. §627.736(5)(a)(1) is now capped by the permissive fee schedule in Fla. Stat. §627.736(5)(a)(2). This Court disagrees as the exact language instruction how a reasonable amount is to be determined from the previous statute is still present in the new statute. Moreover the previous version of Fla. Stat. §627.736(5) contained a mandatory fee schedule capping the amount that providers were permitted to charge for certain diagnostic testing. If the legislature intended to create a mandatory cap, it certainly knew how do so. Thus, if the legislature retained none of the mandatory fee schedule language from the previous version of the statute it is clear that they did not intend a mandatory fee cap when they enacted the “may limit reimbursement” provision in §627.736 (5)(a)2. Adopting the Defendant’s argument would essentially render Fla. Stat. §627.736(5)(a)2. Adopting the Defendant’s argument would essentially render Fla. Stat. §627.736(5)(a)(1) meaningless — in violation of well settled principles of statutory construction. See, Murray v. Mariner Health, 994 So. 2d 1051, 1061 (Fla. 2008.) [33 Fla. L. Weekly S845a] (Court declined to adopt interpretation of fixed attorney fee formula in one section of the worker’s compensation statute that would render meaningless a reasonable amount fee provision in another subsection of that same state.)
Accordingly, it is hereby ORDERED AND ADJUDGED, Final Summary Judgment is entered in favor of the Plaintiff and a judgment shall be entered in plaintiff’s favor.
