18 Fla. L. Weekly Supp. 551a
Online Reference: FLWSUPP 1806TRAP
Insurance — Personal injury protection — Coverage — Provision of 2008 PIP statute allowing insurer to limit reimbursement to 200% of Medicare fee schedule is permissive — Policy language providing that insured will pay 80% of reasonable expenses controls reimbursement
RONALD J. TRAPANA, M.D., P.A. A/A/O WOLMAN SAINT ROSE, Plaintiff, v. UNITED AUTOMOBILE INS. CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 10-15072-SP23-(1). March 16, 2011. Honorable Myriam Lehr, Judge. Counsel: Adam Saben, Shuster & Saben, LLC, Miami, for Plaintiff. Camille Riviere, Office of the General Counsel, Trial Division, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON APPLICATIONOF MEDICARE PART B FEE SCHEDULE
Defendant and Plaintiff filed Cross-motions for Summary Judgment on Application of Medicare Part B Fee Schedule. The facts are not in dispute. Plaintiff, a medical provider, sued Defendant insurer over moneys owed pursuant to an assignment of benefits under the Florida Motor Vehicle No-Fault Law, and Defendant made certain payments according to 200% of the Medicare Part B participating physicians fee schedule, pursuant to the 2008 version of Fla. Stat. § 627.736(5)(a)(2), which resulted in a lesser payment than what the provider had demanded. The provider then filed suit, alleging that rather than paying according to the fee schedule, the insurer should have paid 80% of the medical bills submitted, which the provider claimed were reasonable. The Defendant filed a motion for summary judgment, alleging that Fla. Stat. §627.736(5)(a)(2) allows an insurer to reimburse providers according to amounts related to 200% of the Medicare Part B fee schedule, and that it owed nothing further to the Plaintiff as a result of having previously made payments according to that fee schedule. The parties stipulated that the 2008 version of the Florida Motor Vehicle No Fault Law applies to this action and that Fla. Stat. § 627.736(5) is not ambiguous. Fla. Stat. § 627.736 (5)(a)(2) states that “[t]he insurer may limit reimbursement to 80 percent of the following schedule of maximum charges” and includes various fee schedules for treatments, including “200 percent of the allowable amount under the participating physicians schedule of Medicare Part B” for “all other medical services, supplies and care” in Fla. Stat. § 627.736 (5)(a)(2)(f).
This Court finds that the case of State Farm v. Nichols, 21 So.3d 904 (Fla. 5th DCA 2009) [34 Fla. L. Weekly D2275b] controls. In the Nichols case, the insurer was seeking to pay actual cash value for a sink hole related loss, citing Fla. Stat. § 627.707(5)(b), which provides that “[t]he insurer may limit its payment to the actual cash value of the sinkhole loss. . .” (emphasis added). However, in Nichols, the contract for insurance provided that the insurer had to pay the amount of an appraisal award. The Nichols court held that the statute was permissive and not mandatory, and as such the insurance contract controlled, and that the insurer had to pay according to the language of the insurance contract, which required the payment of the amount of the appraisal award.
This Court also reviewed other sister Court’s ruling on the same issue in Professional Medical Group, Inc, a/a/o Luis Isev v. United Automobile Insurance Company, (Miami-Dade County Case No. 09-3871 CC25(4) Order of Judge Nuria Saenz, October 27, 2009); TBest Solution Medical Center a/a/o Danger Gonzalez v. United Automobile Insurance Company, (Miami-Dade County Case No.: 09-3626 CC 21 Order of Judge Ana Maria Pando, June 4, 2010); Hallandale Beach Orthopedics a/a/o Patricia Hernandez v. United Automobile Insurance Company (Miami-Dade County Case No.: 09-27808 SP 23(2) Order of Judge Caryn Canner-Schwartz, June 18, 2010); Custer Medical Group a/a/o Yaquelin Palencar Leon v. United Automobile Insurance Company (Miami-Dade County Case No.: 09-15232 CC 05, Order of Judge Teretha Lundy-Thomas January 31, 2011), and Chiropractic Radiology Consultants, Inc. a/a/o Jennifer Lopez v. United Automobile Insurance Company, (Miami-Dade County Case No.: 09-32306, Order of Judge Eric Hendon, December 1, 2010) wherein these Courts found that this Defendant failed to avail itself of the rights given to it by the Florida Legislature in the Fla. Stat. 627.736 (5)(a)(2) as amended with respect to application of the Medicare Part B Fee Schedule. This Court’s findings and Order are in accord with these sister Courts.
This Court holds that Fla. Stat. 627.736(5)(a)(2) is permissive, and not mandatory. As such, the provisions of the insurance policy control. Here, the contract provides that the insurer shall pay 80% of reasonable expenses for medically necessary treatments. Nothing in the contract indicates that the insurer was going to limit its payments as permitted by 627.736(5)(a)(2). If the insurer had wished to take advantage of the opportunity afforded by the Legislature to limit payment according to fixed guidelines established by the fee schedule, rather than a “reasonable” payment, then the contract must have included language that referenced that fee schedule and indicated as much. As such, it is this Court’s holding that the insurer was to pay 80% of reasonable expenses as per the language of the insurance policy at issue, and whether the insurer did that remains a question of fact.
