19 Fla. L. Weekly Supp. 746a
Online Reference: FLWSUPP 1909MAUGInsurance — Personal injury protection — Coverage — Emergency services — Exhaustion of policy limits — Where insurer is mandated by statute to reserve $5,000 for emergency medical service providers, and medical provider within that classification filed claim within 30 days of insurer’s receipt of notice of loss as required by statute, insurer is liable for claim despite exhaustion of policy limits — Fact that provider filed claim with incorrect claim number is not defense to payment of claim — PIP insurer’s liability for claim is not affected by fact that claim was submitted to and paid by secondary insurer after rejection by PIP insurer
EMERGENCY PHYSICIANS OF CENTRAL FLORIDA, LLP, as assignee of Barbara Maughan, Plaintiff, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 9th Judicial Circuit in and for Osceola County. Case No. 2011 SC 000140 SP. March 20, 2012. Carol Engel Draper, Judge. Counsel: Rutledge M. Bradford, Bradford Cederberg, P.A., Orlando, for Plaintiff. Wendy Pepper, Andrews & Manno, P.A., Tampa, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS MATTER having come before this Honorable Court on Plaintiff’s Motion for Final Summary Judgment and this Honorable Court having heard arguments of counsel and being otherwise fully advised in the premises, finds and holds as follows:I.
FACTUAL BACKGROUND
The Plaintiff moves for Final Summary Judgment with respect to its claim for breach of contract against USAA for failing to observe the mandatory $5000.00 set aside for Emergency Service Providers for a billing submission sent within 30 days of the carrier’s notice of the loss. USAA’s insured was involved in a motor vehicle collision on 7/5/2010 and on that same day sought treatment with the Plaintiff in the St. Cloud Hospital Emergency Department. Plaintiff is a physicians group that provided “emergency services and care” as defined in Fla. Stat. Section 395.002(9), within the meaning of Fla. Stat. Section 627.736(4)(c) UNITED SERVICES AUTOMOBILE ASSOCIATION received notice of the subject accident from it’s named insured on July 6, 2010 and assigned a claim number to her claim on July 6, 2010.
On July 16, 2010, the Plaintiff’s billing company mailed the CMS 1500 form to USAA PIP, Medical Claims Dept, PO Box 5000, Daphne Alabama. On July 19, 2010, the CMS 1500 and envelope were received and date stamped at the address in Daphne, Alabama. However, the Plaintiff’s CMS 1500 form and the envelope were returned to the Plaintiffs billing company, along with an undated, unaddressed form letter from Auto Injury Solutions (USAA’s vendor for processing mail) indicating they were unable to find a claim to match in their system, and therefore were unable to process the bill and [are] returning it to you. The CMS 1500 had an incorrect claim number on it, although it possessed the name insureds name, address, phone number and date of birth.
On August 25, 2010, the Plaintiff’s CMS 1500 form was resubmitted to USAA’s address in Daphne Alabama with identical information as has been provided on the initial submission. In response to that submission, AIS located the claim and prepared an Explanation of Review indicating the benefits were exhausted and no payments would be made.
II. CONCLUSIONS OF LAW AND RULING
A. Carrier’s Obligation to Honor StatutorySet Aside Is Mandatory
Relative to a provider of emergency medical services and care for injuries that result from the use or operation of a motor vehicle, Fla. Stat. §627.736 requires reservation of benefits for payment of the provider’s claim. Specifically, Fla. Stat. §627.736(4)(c) provides in relevant part:
(c) Upon receiving notice of an accident that is potentially covered by personal injury protection benefits, the insurer must reserve $5,000 of personal injury protection benefits for payment to physicians licensed under chapter 458 or chapter 459 or dentists licensed under chapter 466 who provide emergency services and care, as defined in s. 395.002(9), or who provide hospital inpatient care. The amount required to be held in reserve may be used only to pay claims from such physicians or dentists until 30 days after the date the insurer receives notice of the accident. After the 30-day period, any amount of the reserve for which the insurer has not received notice of a claim from a physician or dentist who provided emergency services and care or who provided hospital inpatient care may then be used by the insurer to pay other claims.
Id., (2008). Fla. Stat. §627.736(4)(c) (2008) represents a departure from, and an exception to, the common law of the State governing exhaustion of benefits. That common law is outlined in cases such as Progressive American Ins. Co, v. Stand-Up MRI of Orlando, 990 So.2d 3 (Fla. 5th DCA, 2008) [33 Fla. L. Weekly D1746a] and the case on which it is at least partially based, Simon v. Progressive Express Ins. Co., 904 So.2d 449 (Fla. 4th DCA, 2005) [30 Fla. L. Weekly D1156b]. Implicit is the acknowledgment that the “new,” 2008 version of Fla. Stat. §627.736 applies to the instant matter and the question presented is how to apply subsection (4)(c) of the PIP Statute. Applying both rules governing statutory interpretation and existing cases that give insight on applying the new rule requiring reservation of benefits, Plaintiff’s Motion for Final Summary Judgment is granted.
When interpreting a Statute, Courts are required to apply the plain meaning of the language used and apply that language to the circumstances presented by a dispute under that language. Saleeby v. Rock Elson Const., Inc., 3 So.3rd 1078, 1082 (Fla. 2009) [34 Fla. L. Weekly S106a]. Where the language used is plain, unequivocal and not subject to reasonable differences as to its meaning, there is no occasion to employ other rules of statutory construction and again, the plain meaning of the language used in the statute controls its application to the facts presented. Vreuls v. Progressive Employer Services, 881 So.2d 688, 690 (Fla. 1st DCA 2004) [29 Fla. L. Weekly D1990b]. Here, the language of Fla. Stat. §627.736(4)(c) is plain unequivocal and not subject to reasonable difference as to its meaning. As such, the law, as it is written, should be applied to the facts without further resort to alternative maxims of statutory construction.
Subsection (4)(c) requires an automobile insurer providing PIP benefits, such as USAA to reserve benefits for the payment of certain providers under certain circumstances. Up until the effective date of this subsection, insurers had no prior obligation to reserve benefits for any class of medical provider under the PIP statute. Simon, supra. Now, the subsection requires reservations of $5,000 of PIP benefits for the payment of a class of providers into which Plaintiff indisputably fits. Id. Indeed, the phrase used in the law to describe the insurer’s obligation is “must reserve,” which is mandatory in nature. Given the foregoing, Defendant here was required to reserve benefits for the payment of Plaintiff’s claim by virtue of Plaintiff’s status as a provider for whom the Subsection requires reservation of benefits.B. An Improper Claim Number is Nota Defense to Non-Payment
As Plaintiff points out, USAA plead only exhaustion of benefits as an affirmative defense in this matter. Despite not pleading the affirmative defense of failure to provide written notice of a covered loss, even if such a defense had been plead, the Plaintiff would be entitled to Summary Judgment. Fla. Statute 627.736(4)(b) provides:
(b) Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.
Arguments have been presented that defects in CMS 1500 forms fail to provide the carrier with written notice of the fact of a covered loss, thereby failing to trigger the 30 day window for the insurer to pay a submitted claim. The Fifth District Court of Appeals has weighed in on this issue decisively, both regarding with whom the burden rests to validate a claim and the time frame for doing so. In Superior Insurance Company vs. Libert 776 So2d 360 (Fla 5th DCA 2001) [26 Fla. L. Weekly D381a], the 5th DCA held, “The statutory language is clean and unambiguous. The insurance company has thirty days in which to verify the claim after receipt of any application for benefits. There is no provision in the statute to toll this time limitation. The burden is clearly upon the insurer to authenticate the claim within the statutory time period. To rule otherwise would render the recently enacted “no fault” insurance statute a “no-pay” plan — a result we are sure was not intended by the legislature.”
Similarly in Palmer vs. Fortune 776 So.2d 1019 (Fla 5th DCA 2001) [26 Fla. L. Weekly D278a] the 5th District stated, “the legislature placed the burden on the insurer to verify a claim within the 30 day period because the no-fault statute was designed to provide a speedy recovery of PIP benefits. . . . There is no tolling provision of the 30 day period for payment of PIP claims. . . . Although incomplete and erroneous information makes verification of a claim more difficult, the statutory burden remains with the insurer to make a decision on coverage within 30 days.”C. Exhaustion of Benefits is Not a Defense
The court is aware of and has taken into consideration both the Simon decision and the 5th Districts ruling in Progressive American Insurance vs. Stand Up MRI as it relates to exhaustion. Notably, these decisions neither addressed the 2008 statute, nor involved a statutorily protected class of provider. There are no known cases of controlling precedent on this issue. The sole reported decisions in this matter come from the county court in Volusia county, in which two separate county court judges have ruled on this identical issue. In Orthopaedic Clinic of Daytona Beach, P.A. a/a/o Charles Murray vs. State Farm Mutual Automobile Insurance Company, 17 Fla. L. Weekly Supp. 1145(a), the court noted, “Exhaustion of benefits is not an Defense to Plaintiff’s cause of action. Whether USAA acted in good faith or not is not the issue. The issues boil down to whether the Plaintiff timely filed its claim; whether the claim was for services meeting the definition of emergency services and care: whether the need for those services was related to the accident; and whether the charges were reasonable.” The court finds this reasoning sound and persuasive and finds exhaustion of benefits not to be a defense in this matter.D. Submission to A Secondary Payor is Immaterial
It is not contested that the claim at issue was submitted to a secondary insurance source after USAA failed to pay the bill on two submissions, nor that payment was made by the health insurer. Taken in the light most favorable to USAA, these facts do not change the analysis or outcome of this case. The responsibility of USAA in this matter is not altered by the subsequent payment by a secondary carrier. Because PIP is primary, and secondary carriers are required to be reimbursed if they pay out on an accident related bill, USAA’s liability here is not affected by any payment by a health insurer.
The Supreme Court of Florida addressed this issue in Blue Cross and Blue Shield of Florida, Inc. vs. Matthews 498 So2d 421 (Fla 1987). The Court held that the statute (627.7372(2)(b)) did not bar the subrogation rights of a health care insurer. In addressing the argument proffered by the Respondent, (that in enacting a no-fault concept of motor vehicle insurance, the legislature intended to limit in-fighting within the industry by limiting suits between insurers, . . . thus Blue Cross as an insurer who suffers no competitive disadvantage against other health insurer should not be permitted to sue to recover collateral source benefits paid to its insured) the court stated, “Respondents arguments is fallacious.” The court went on,
The statute in question is contained in the Florida Motor Vehicle No-Fault Law, section 627,730 which establishes the no-fault concept between motor vehicle insurers. This is equitable and beneficial to such insurers because each insurer receives both benefits and detriments; . . . This equitable arrangement breaks down, however, if the other insurer is a health insurer. The arrangement becomes a one-way transaction with the health insurers always transferring money to the vehicle insurers. The motor vehicle insurance industry would benefit from transferring part of its claims cost to the health insurance industry which might, conceivably, result in lower vehicle insurance rates. However concerned it was with high motor vehicle insurance rates, we do not believe the legislature intended to disguise the costs of such insurance by transferring part of the burden to the health insurance industry and its customers.
See also American Risk Assurance Company vs. Benrube, 407 So2d993 (Fla 3d DCA 1981) “a private insurer may not refuse to pay benefits for which it is primarily liable for the reason that those expenses has been paid by Medicare.”
Accordingly, it is ORDERED and ADJUDGED that the Plaintiff’s Motion for Final Summary Judgment is hereby GRANTED.
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