19 Fla. L. Weekly Supp. 126a
Online Reference: FLWSUPP 1902GOLDInsurance — Personal injury protection — Coverage — Where PIP policy provides that insurer will pay 80% of actual charge and does not reference permissive fee schedule of section 627.736(5)(a)2, insurer is not permitted to utilize permissive fee schedule in processing claim
FLORIDA ORTHOPAEDIC CENTER, as Assignee of Jason Goldman, Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 09-01537 COCE 54. September 13, 2011. Honorable Lisa G. Von Tefs, Judge. Counsel: Emilio Stillo, and Andrea Jakob, Lubell & Rosen Attorneys at Law, Ft. Lauderdale, for Plaintiff. Don Matthews, for Defendant.
ORDER ON PLAINTIFF’S MOTION FORFINAL SUMMARY JUDGMENT
THIS CAUSE, having come before the Court for consideration on Plaintiff, Florida Orthopaedic Center Inc., a/a/o Jason Goldman’s Motion for Final Summary Judgment.
ORDERED AND ADJUDGED that said Plaintiff’s Motion regarding Reasonableness of Fees is hereby DENIED without prejudice in part and said Motion is hereby GRANTED in part with regard Kingsway Amigo Insurance Company v. Ocean Health, Inc., Case No. 4D10-4887 (Fla. 4d DCA 2011) [36 Fla. L. Weekly D1062a](rehearing denied July 5, 2011).
The Fourth District held that if an insurer wishes to utilize the permissive fee schedule contained in Section 627.736(5)(a)(2), then it must indicate the same in the policy of insurance. Defendant’s policy of insurance indicates that it will pay 80% of “the actual charge” and does not indicate it intends to utilize the permissive fee schedule. Kingsway Amigo Insurance Company v. Ocean Health, Inc., Case No. 4D10-4887 (Fla. 4d DCA 2011) [36 Fla. L. Weekly D1062a](rehearing denied July 5, 2011).
The applicable policy made no reference to the permissive methodology of subsection 627.736(5)(a)2. The policy states that it will pay “80% of medical benefits” defining medical benefits as “reasonable expenses for medically necessary . . . services.” It defines “reasonable” by considering the actual charge. There is no language choosing the safe harbor fee schedule payment methodology, therefore, the fee schedule is not applicable in this case and Defendant is not permitted to utilize the fee schedule in processing this claim.
The Court will consider a Motion that Plaintiff may submit for Summary Judgment with regard to specific unpaid CPT codes.
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