18 Fla. L. Weekly Supp. 102b
Online Reference: FLWSUPP 1801SEID
Insurance — Personal injury protection — Coverage — Medical expenses — MRI — PIP policy providing for payment of 80% of reasonable expenses controls over permissive statutory language allowing limitation of reimbursement for MRI to 80% of 200% of Medicare Part B fee schedule — Policy language stating that insurer will pay in accordance with No-Fault Act and will not pay any charge that No-Fault Act does not require it to pay is insufficient to place insured on notice that payment of benefits is to be made according to Medicare fee schedule
HIGH DEFINITION MOBILE MRI, INC., a Florida corporation, (a/a/o Seide, Wilna), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-12171 COCE (53). September 22, 2010. Robert W. Lee, Judge. Counsel: Michael S. Feinman, Michael S. Feinman, P.A., Lauderhill, for Plaintiff. Mark Rose, Roig, Kasperovich, Tutan & Woods, P.A., Deerfield Beach, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT AND FINAL JUDGMENT INFAVOR OF THE PLAINTIFF
THIS CAUSE came before the Court on August 30, 2010, on Plaintiff’s, HIGH DEFINITION MOBILE MRI, INC., Motion for Final Summary Judgment on the issue of whether Defendant properly issued payment for MRI services performed by Plaintiff by applying the 2008 Outpatient Prospective Payment System fee schedule (hereinafter referred to as “OPPS fee schedule”), as argued by Defendant, or should have paid 80% of the reasonably charged amount, as argued by Plaintiff. The Court having reviewed the entire Court file, heard argument of counsel, reviewed relevant legal authorities, and having been sufficiently advised in the premises, this Court finds as follows:
INTRODUCTION
The parties have filed a joint pre-trial stipulation and have agreed that there are no material disputed questions of fact and the dispute herein may be decided as a matter of law.
Both parties agree that the issue is a question of law.
The parties also stipulate that $3,850.00 is a reasonable charge for the MRIs performed by the Plaintiff. The parties also agree that the only defense to the payment of this bill is the Defendant’s assertion that it can apply the fee schedule as described by Florida Statute §627.736(5)(a)2.f., limited by OPPS.
FACTS
1. Wilna Seide was involved in an automobile accident on April 4, 2008, where she sustained injuries.
2. That on the day of the above accident, Ms. Seide was entitled to PIP benefits under a policy of insurance issued by the Defendant.
3. On May 19, 2008, Plaintiff performed a lumbar and cervical spine MRI as medical diagnostic services for Ms. Seide.
4. The MRIs performed by Plaintiff were medically necessary and related to the automobile accident of April 4, 2008.
5. Plaintiff timely billed the Defendant $3,850.00 for the MRIs at issue. The HCFA/billing form was properly filled out and all statutory and contractual conditions were met.
6. That Defendant calculated the price for the MRIs as $1,885.86 (200% of the OPPS fee schedule) and issued 100% payment on July 14, 2008.
7. The policy in question was issued in 2008 and thus, the 2008 version of the PIP Statute is applicable.
8. Plaintiff moves for final summary judgment asserting that no fee schedule applies to Plaintiff’s claim as the applicable insurance policy language, which provides for payment at 80% of “reasonable expenses for necessary medical services,” fails to incorporate the permissive language of the 2008 PIP Statute, which provides carriers with the option to limit reimbursement to the “participating physician’s Medicare Part B fee schedule.”
9. Defendant maintains that the OPPS fee schedule applies because the statutory language in the PIP statute §627.736(5)(a)2.f., providing that the insurer may limit reimbursement to “200 percent of the allowable amount under the participating physician’s schedule of Medicare Part B” includes the OPPS fee schedule as an “allowable amount” under the participating physicians schedule of Medicare Part B for MRIs and that the policy is deemed to incorporate the provisions of the no-fault law.
10. In support of its argument, Defendant relies on the language on page 12 and 13 of the applicable Policy Form 9810.7, which states that State Farm “. . .will pay in accordance with the No-Fault Act. . .,” including amendments. Defendant also relies on page 4 of its Amendatory Endorsement 6910.3, which provides that State Farm “. . .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” and page 5 of its Amendatory Endorsement, which states that, “To 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 . . . insurance coverages. . .”
11. Defendant further points to Florida Statute §627.7407(2) and (3) in support of its argument that the legislature intended the “fee schedule” to be incorporated into the policy.
CONCLUSIONS OF LAW
12. This Court has considered the language contained in Florida Statute §627.736 (1)(a) and (5)(a)1. and (5)(a)2.f., the language contained in Defendant’s policy of insurance and amendatory endorsement, and the language contained in Florida Statute §627.7407(2) and (3).
13. Florida Statute §627.736(1)(a), states that:
(1) REQUIRED BENEFITS. . . Every insurance policy complying with the security requirements of s.627.733 shall provide personal injury protection. . . as follows:
(a) Medical benefits. — Eighty percent of all reasonable expenses for medically necessary medical . . . services and care that are lawfully provided. . . (Emphasis added).
14. Florida Statute §627.736(5)(a)2.f. provides that:
(5) CHARGES FOR TREATMENT OF INJURED PERSONS. —
(a) . . . 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 applicable Medicare Part B fee schedule. . .
3. For purposes of subparagraph 2., the applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect at the time the services, supplies, or care were rendered and for the area in which such services were rendered, except that it may not be less than the applicable 2007 Medicare Part B fee schedule for medical services, supplies, and care subject to Medicare Part B (Emphasis added).
MRI services are within the type of “other medical services, supplies, and care” described in section 627.736(5)(a)2.f.
15. In the instant case, the policy at issue provides that the insurer “will pay in accordance with the No-Fault Act. . . 80% of the reasonable charges incurred for necessary medical . . . services” (refer to page 12 of Defendant’s Policy Form 9810.7 and page 3 of Defendant’s Amendatory Endorsement 6910.3). The policy itself does not make reference to either the OPPS fee schedule, the Medicare Part B Fee Schedule, or Florida Statute §627.736(5)(a)2.f. Further, although Defendant’s Amendatory Endorsement contains a list of factors to determine whether a charge is reasonable, Defendant may not arbitrarily use one factor (i.e. “various federal and state fee schedules”) as the sole basis for determining the reimbursement amount.
16. This Court finds that this policy language, including the language contained in Defendant’s Amendatory Endorsement, is insufficient on its own to place the policyholder on notice that payment for PIP benefits is to be made according to the Medicare Part B Fee Schedule. This Court’s finding is in agreement with the analysis of the Fifth District Court of Appeal in State Farm Florida Ins. Co. v. Nichols, 34 Fla. L. Weekly D2275b (Fla. 5th DCA 2009). In Nichols, the insurer argued that it was entitled to pay in accordance with 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 payment. The Appellate Court, however, considered the “may limit” language appearing in the sinkhole statute to be permissive. Id. at 905. Similarly, the language “may limit” appears in the new PIP statute. This Court finds that the language of Florida Statute §627.736(5)(a)2.f. is permissive not mandatory. In both, Nichols and the instant case, the insurer failed to reference the permissive language into its policy. As a result, this Court concludes, consistent with Nichols, that State Farm is obligated to pay“80% of the reasonable charges incurred for necessary medical . . . services,”as provided in its own policy language, regardless of the limitation permitted by Florida Statute §627.736(5)(a)2.f.
17. Since the policy language controls, payment should have been made at 80% of the reasonable charges incurred for necessary medical services (i.e. $3,080.00, which, is80% of $3,850.00, the billed amount, which has been agreed to by Defendant in this case as the reasonable charges for the MRI services performed by Plaintiff).
18. Further, this Court finds that the policy at issue does not conflict with Florida Statute §627.7407(2), which provides that “Any personal injury protection policy in effect on or after January 1, 2008, shall be deemed to incorporate the provisions of the Florida Motor Vehicle No-Fault Law, as revived and amended by this act,” and further that the policy at issue does not conflict with Florida Statute §627.7407(3), which provides that “An insurer shall continue to use the personal injury protection forms and rates that were in effect on September 30, 2007, until new forms or rates are used as authorized by law.” Moreover, to the extent that there is ambiguity on the part of the legislature or the Department of Insurance with regard to this section, it must be construed in favor of the insured or the provider and not the insurance company.
19. Finally, to the extent that the policy language at issue is susceptible to more than one reasonable interpretation, the insurance policy is considered ambiguous and an ambiguous provision is construed in favor of the insured and strictly against the drafter. See Financial Fire & Cas. Co. v. Callaham, 199 So. 2d 529, 532-533 (Fla. 2nd DCA 1967), citing to Fireman’s Fund Ins. Co. of San Francisco, Cal. V. Boyd, 45 So. 2d 499 (Fla. 1950).
Accordingly, is it hereby ORDERED AND ADJUDGED that Final Summary Judgment in favor of the Plaintiff is GRANTED.
IT IS FURTHER ADJUDGED that the Plaintiff, HIGH DEFINITION MOBILE MRI, INC., recover from the Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, the sum of $1,194.14, plus prejudgment interest in the amount of $208.36, for a total amount of $1,402.50 that shall bear interest at the legal rate for which let execution issue.
This Court hereby reserves jurisdiction to award attorney’s fees and costs in favor of the Plaintiff, and to enter Final Judgment for Attorney’s Fees and Costs accordingly.
