19 Fla. L. Weekly Supp. 388a

Online Reference: FLWSUPP 1905BOYKInsurance — Personal injury protection — Coverage — Medical expenses — Bill in excess of customary charges — Medical provider who offers discount to patients who render payment on date services are provided did not violate statutory requirement that charges to PIP insurer not exceed amount provider customarily charges for like services

BIGLEY AND ASSOCIATES, P.A. d/b/a PREMIER ORTHOPEDIC OF ORLANDO as assignee of RODERICK BOYKINS, Plaintiff, vs. FIRST FLORIDIAN AUTO AND HOME INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2010-CC-6751. January 24, 2012. Honorable Carolyn B. Freeman, Judge. Counsel: Justin Howard Presser, Weiss Legal Group, P.A., Maitland, for Plaintiff. David Kampf, Ramey & Kampf, P.A., Tampa, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FORPARTIAL SUMMARY JUDGMENT AND DENYINGDEFENDANT’S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE came before the Court on hearing on November 10, 2011 on Plaintiff’s and Defendant’s Motions for Summary Judgment as to the Defendant’s Seventh Affirmative Defense. The Court, having reviewed the motion, the Court file, legal authorities and having heard argument of counsel, finds as follows:

STATEMENT OF FACTS

1. The facts relevant to the Defendant’s Motion for Summary Judgment are not in dispute and are supported by the record before this Court.

2. This is an action for breach of contract arising out of the Defendant’s failure to issue any PIP benefits for medical treatment its insured received at the hands of the Plaintiff.

3. On or about October 20, 2008, Roderick Boykins was involved in a motor vehicle accident (“the Accident”) in which he sustained personal injuries.

4. As a direct and proximate result of the injuries Roderick Boykins sustained in the Accident, he incurred expenses for medical, rehabilitative, nursing and remedial care rendered by Bigley & Associates, P.A. d/b/a Premier Orthopedic of Orlando.

5. Defendant issued a policy of insurance to Roderick Boykins which provided Personal Injury Protection benefits as required by law to comply with Florida Statutes §627.730-§627.7405 (“the Policy”).

6. The Policy was in full force and effect on the date of the Accident and provided personal injury protection coverage to Roderick Boykins for bodily injuries he sustained in the Accident.

7. Roderick Boykins executed an actual or de-facto assignment of benefits assigning his rights, title, and interest to this claim under the Policy to Bigley & Associates, P.A. d/b/a Premier Orthopedic of Orlando, for health care services related to the Accident.

6. The Defendant failed to issue any PIP benefits for medical services rendered to Mr. Boykins as a result of the October 20, 2008 motor vehicle accident.

7. On March 18, 2010 the Plaintiff served on the Defendant a pre-suit demand letter, pursuant to Florida Statute §627.736(10), for amounts owed as a result of medical treatment and/or services provided to the Defendant’s insured, Roderick Boykins, for injuries sustained in the October 20, 2008 motor vehicle accident.

8. After receipt of the Plaintiff’s demand letter, the Defendant failed to issue any benefits to the Plaintiff under Mr. Boykins’ motor vehicle insurance policy and the Plaintiff filed the instant action to compel the Defendant to pay amounts the amounts sought in the demand letter.

9. On February 22, 2011, Defendant took the deposition of Ms. Ordine Campbell, the accounts receivable manager of the Plaintiff wherein Ms. Campbell testified that while there is only one payment charging schedule for those treating at the Plaintiff’s facility, there is a discount from the original charge offered to those who render payment on the same day the services are provided.

10. Following the deposition of Ms. Campbell, Defendant filed its Amended Affirmative Defenses to include a violation of Florida Statute §627.736(5)(a) which states as follows:

“Plaintiff violated Florida Statute §627.736(5)(b). Plaintiff knowingly submitted bills to FIRST FLORIDIAN that included charges far in excess of the amount that Plaintiff provides to other patients for a like service or supply. Plaintiff engaged in a general business practice of charging cash paying patients substantially reduced amounts for the same or similar treatment. Plaintiff’s bills when submitted implicitly represented that the charges submitted were lawful. Plaintiff, however, knowingly and willfully submitted these charges in violation of Florida Law. Thus, the bills themselves contain false or misleading information and are otherwise fraudulent.”

11. Florida Statute §627.736(5)(a) states in its entirety as follows:

(5) Charges for treatment of injured persons.

(a) 1. Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an insured person for a bodily injury covered by personal injury protection insurance may charge the insurer and insured party only a reasonable amount pursuant to this section for the services and supplies rendered, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment, if the insured receiving such treatment or his or her guardian has countersigned the properly completed invoice, bill, or claim form approved by the office upon which charges are to be paid for as having actually been rendered, to the best knowledge of the insured or his or her guardian. 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 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 to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.

12. The parties now file cross motions for summary judgment regarding the Defendant’s Seventh Affirmative Defense.

13. The parties ask this court to interpret the meaning of this statute and offer diametrically opposing interpretations.

14. The Defendant argues that the statute should be construed so as to prohibit any pattern of discount to any payor and that any systematic discount is the equivalent of a “charge” and thus violates the statute prohibiting a medical provider from charging a different rate to non-insurers.

15. The Plaintiff argues that the statute is clear on its face and prohibits a medical provider from charging a non-insurer a different rate but does not prohibit the offering of a discount of the charge to a payor who issues payment on the same date a service is provided and thus minimizes the provider’s administrative collection costs.

16. It is through this prism this Court analyses Florida Statute Section 627.736(5)(a).

LEGAL CONCLUSIONS

17. When a provider bills an insurer for medical services, Florida Statute §627.736(5)(a) provides, in pertinent part:

Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an insured person . . . covered by personal injury protection insurance may charge the insurer and insured party only a reasonable amount . . . . 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 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 to automobile and other insurance coverages . . . . (emphasis added).

18. The United States Supreme Court has stated that “courts must presume that a legislature says in a statute what it means and means in a statute what is says there.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992)(internal citations omitted). If the words of a statute are unambiguous, “judicial inquiry is complete.” Id. at 254.

19. This canon of judicial construction has also been utilized in Florida to determine the meaning of a statute. See State v. Burris, 875 So.2d 408 (Fla. 2004) [29 Fla. L. Weekly S149a]. In Burris, a criminal defendant was charged with a first degree felony under Florida Statute §812.13(2)(a) (2001) when, while driving past a woman walking in a parking lot, he reached out and grabbed her purse, dragging the woman for some distance. The first degree felony charge enhanced the punishment of the robbery by charging that Burris “carried a firearm or other deadly weapon” by the use of his vehicle in the commission of the crime Id. at 409. Burris moved to dismiss the charge, which was denied, and ultimately pled nolo contendere to the charge reserving his right to appeal the denial of his motion to dismiss. On appeal, the Fifth District ruled that an automobile cannot be “carried” as a deadly weapon. Id. at 410. The Fifth District reasoned that the rule of statutory construction requires that the courts give statutory language its plain and ordinary meaning, unless the words are defined in the statute or by the clear intent of the legislature. After discussing the plain meaning of the word “carry” and finding no sign of legislative intent to apply any unusual meaning, the Fifth District determined that the word “carry” could not apply in this instance as Burris did not “carry” the automobile in committing the crime. Id. at 411 (citing Burris v. State 825 So.2d 1034 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D2053a]. The State appealed the Fifth District’s ruling and the Florida Supreme Court accepted review with a companion case on the very same issue from the First District finding the opposite conclusion based on its interpretation that logic and common sense dictated that the use of the word “carry” was perfectly consistent with the obvious intent of the statute and to hold otherwise would lead to “an absurd and unreasonable result.” Burris, 875 So.2d at 410-11 (citing Jackson v. State, 662 So.2d 1369 (Fla. 1st DCA 1995) [20 Fla. L. Weekly D2609c]. In ultimately rejecting the First District’s interpretation and accepting the Fifth District’s interpretation of the robbery statute, the Florida Supreme Court determined that the First District’s interpretation would “extend the reach of section 812.13(2)(a) beyond its express language” without any clear indication of the legislative intent. Burris, 875 So.2d at 413. This, as found by Burris Court, was not proper. Id. at 413-14 (stating “[a]ttractive as this interpretation may be from a policy standpoint, we must resist the temptation to so expand the statute. To construe the statute in a way that would extend or modify its express terms would be an inappropriate abrogation of legislative power.” citing Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984)).

20. The Florida Supreme Court reinforced this rule of statutory construction in Arnold, Matheny and Eagan, P.A. v. First American Holdings, Inc., 982 So.2d 628 (Fla. 2008) [33 Fla. L. Weekly S268a] when it upheld the Second District’s interpretation of the garnishment statute as requiring an attorney to take necessary steps to prevent the deposit of a previously issued check once served with a writ of garnishment. At issue in Arold, Matheny and Eagan, P.A. was whether the attorney’s issuance of a trust account check, previously written and delivered to a payee prior to receipt of a writ of garnishment but before presentment of the check to the payor’s bank, had any obligation to secure the funds from disbursement once the writ of garnishment was received. Id. at 633. In finding in the affirmative, the Florida Supreme Court looked at the language of the garnishment statute found in section 77.01, which states in relevant part “[e]very person or entity who has. . .recovered judgment in any court against any person. . .has a right to a writ of garnishment. . . .to subject any debt due to defendant by a third person. . .and any tangible or intangible personal property of defendant in possession or control of a third person.” The Florida Supreme Court concluded that the key determination as to whether any obligation remained was whether the attorney was in “possession and control” of the funds after deliverance of the check but before presentment by the payee for payment. Id. at 633-34. The Florida Supreme Court, looking to Black’s Law Dictionary found that “possession” was “the fact of having or holding property in one’s power; the exercise of dominion over property” while “control” was defined as “to exercise power or influence over”. Id. at 633. As applied to the Burris case, it determined that the attorneys retained possession and control as they continued to retain the funds in the attorneys account prior to presentment by the payee. This determination was made in part because while the check had been previously issued, the issuance did not operate as an assignment of funds and, until presented for payment, the funds remain in the attorneys account. Therefore, the Florida Supreme Court found an affirmative obligation on the attorneys to attempt to prevent the payee from receiving the proceeds upon presentment to the bank after such time as they had received a writ of garnishment.

21. As the cases previously discussed, this court finds Florida Statute Section 627.736(5)(a) to be unambiguous.

22. By its clear meaning, a medical provider cannot charge an insurer a different amount than that charged of non-insurers for the same services.

23. However, as the legislature fails to define the word “charge” in the statute this Court must look to the plain and ordinary meaning of the word to resolve this issue. Green v. State, 604 So.2d 471, 473 (Fla. 1992)(when a term is left undefined by statute, “one of the most fundamental tenets of statutory construction requires that we give a statutory term ‘it’s plain and ordinary meaning’ ”). It is upon this examination that the Defendant’s argument fails.

24. The use of a dictionary is a proper means of ascertaining a words plain and ordinary meaning. Seagrave v. State, 802 So.2d 281, 286 (Fla. 2001) [26 Fla. L. Weekly S481a]; L.B. v. State, 700 So.2d 370, 372 (Fla. 1997) [22 Fla. L. Weekly S609a] (stating that “a court may refer to a dictionary to ascertain the plain and ordinary meaning which the legislature intended to ascribe to a term”). “Charge”, as used in this case, is defined as meaning “price, cost, or expense.” Black’s Law Dictionary 249 (8th ed. 2004). This is in contrast with the definition of “discount” which means “a reduction from the full amount or value of something, especially a price.” Black’s Law Dictionary 498 (8th ed. 2004).

25. Based on the clear definition of the terms, it is evident that a “charge” and a “discount” are two separate words with two separate meanings. These words are not interchangable. Where a “charge” is the price for a particular item, in this case medical services, a “discount” is a reduction of such a price.

26. As such, it is clear that the legislature in Florida Statute Section 627.736(5)(a) intended to protect insurers from being taken advantage of by unscrupulous medical providers who would formulate a separate, inflated charge for bills submitted to insurers for reimbursement. The legislature did not intend to prohibit a medical provider from accepting a lesser amount than that being charged — a common business practice for various business owners. The record evidence in this case shows that the Plaintiff made available a same day payor discount to those that would render payment on the date the services were provided as an incentive to avoid having to incur additional time and expenses in the collection of that bill — such as litigation.¹

27. This court finds this does not violate the clear intent or the spirit of Florida Statute Section 627.736(5)(a). Had the legislature intended to prohibit a medical provider from accepting an amount less than the amount charged it could have certainly done so.

Therefore, it is Ordered and Adjudged that the Defendant’s Motion for Summary Judgment must be DENIED. The Plaintiff’s Motion for Partial Summary Judgment is GRANTED.

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¹This court notes that the same day payor discount was not available to the Defendant’s insured as he did not provide payment on the same date the services were rendered but, rather, sought treatment under a Letter of Protection.

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