18 Fla. L. Weekly Supp. 417a
Online Reference: FLWSUPP 1804COND
Insurance — Personal injury protection — Coverage — Mandatory policy language providing that insurer will pay 80% of reasonable expenses controls over permissive language of PIP statute that allows more limited reimbursement
RONALD J. TRAPANA, M.D., P.A., a Florida Corporation, (assignee of Conde, Roberto), Plaintiff, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 09-005659 COCE 54. January 24, 2011. Lisa Trachman, Judge.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINALSUMMARY JUDGMENT AND FINAL JUDGMENTIN FAVOR OF PLAINTIFF
THIS CAUSE came before the Court for hearing on November 10, 2010 on Plaintiff’s Motion for Final Summary Judgment and the Court, having reviewed the motion; entire Court file; and relevant legal authorities and heard argument of counsel finds as follows:
Background: This is a P.I.P. case. Defendant issued a policy of insurance covering Roberto Conde on January 22, 2008 for a six month policy period through July 22, 2008. Plaintiff billed the Defendant for medical services provided to Roberto Conde and in response, Defendant reduced the bill to less than 80% of the amount billed. Pursuant to an assignment of benefits, Plaintiff thereafter filed suit for the remaining amounts owed.
Defendant has alleged as its second affirmative defense that it has made full payment of the Plaintiff’s claim. Specifically, Defendant maintains that it is permitted to limit reimbursement to 80% of 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B because the policy is deemed to incorporate the provisions of the no-fault law and points to F.S. § 627.7407 in support of its argument. Plaintiff maintains that the policy unequivocally states that payment “will” be made at “80%. . .reasonable expenses for necessary medical. . . services” and fails to indicate that the Defendant was going to cap the permissive reimbursement limitations as set forth in Fla. Stat. §627.736(5)(a)(2) and, therefore, the mandatory language of the policy of insurance (which also provides broader coverage than the fee limitation the Defendant seeks to apply) controls over the permissive language of F.S. s. 627.736(5)(a)(2)(f).
The parties have stipulated that the Plaintiff’s services and charges are reasonable, related, and medically necessary and that the Defendant waives all defenses (with exception to its second affirmative defense of ‘payment’) and, therefore, the only issue in this case is a legal one, to wit, whether the Defendant’s application of the 2008 Medicare Part B Fee Schedule was proper.
Conclusions: The court disagrees with the Defendant and continues to follow its prior ruling in National Nuclear Center, Inc., D/B/A, Hollywood Diagnostic Center, (Marie Lamothe) v. State Farm Mutual Automobile Insurance Company, 17 Fla. L. Weekly Supp. 1124b (Broward County Court 2010) and finds, consistent with State Farm Florida Insurance Company v. Nichols, 21 So. 3d 904 (Fla. 5th DCA 2009) [34 Fla. L. Weekly D2275b], that the insurer was to required pay 80% of reasonable expenses in accordance with the applicable language of the insurance policy at issue.
Accordingly, as the parties have stipulated that the only issue which requires adjudication is the Defendant’s application of the 2008 Medicare Part B Fee Schedule and the Court has resolved this issue by virtue of this order, it is hereby:
ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Summary Judgment is GRANTED and FINAL JUDGMENT is entered in favor of the Plaintiff.
The Plaintiff, RONALD J. TRAPANA, M.D., P.A., whose address is 4018 Sheridan Street, Hollywood, FL 33021 shall recover from the Defendant, GOVERNMENT EMPLOYEES INSURANCE COMPANY, whose address is Post Office Box 9091, Macon, GA 31208, the principal sum of $2,220.06 together with interest at the rate of 11% pursuant to F.S.s. 627.736(4) in the amount of $808.81.
This judgment shall bear post-judgment interest at the rate of 6% per year from date of entry until satisfied.
The draft shall be payable to RONALD J. TRAPANA, M.D., P.A. and delivered to Russel Lazega, Esq. at The Law Office of Russel Lazega, P.A. d/b/a Florida Insurance Advocates, whose address is 13499 Biscayne Blvd, Suite 107, North Miami, FL 33181.
Plaintiff is the prevailing party and is entitled to recover attorney’s fees and costs pursuant to F.S.s. 627.428. The Court reserves jurisdiction to determine the reasonable amount of attorney’s fees and costs and enter judgment accordingly.
Let execution issue for the above sums.
