20 Fla. L. Weekly Supp. 161a
Online Reference: FLWSUPP 2002GOLDInsurance — Personal injury protection — Coverage — Where PIP policy provides that insurer will pay 80% of reasonable expenses and on separate page provides that any amounts payable will be “subject to” limitations in PIP statute, insurer has not incorporated optional provisions of Medicare fee schedule into policy — Even if “subject to” language could be interpreted as incorporating Medicare fee schedule, by using confusing language on separate page of policy from provision requiring payment of 80% of reasonable expenses, insurer failed to satisfy requirement of Kingsway that election to use permissive statutory fee schedule be made in manner so that insured and medical providers would be aware of it
DPI OF NORTH BROWARD LLC (a/a/o Lauren Goldstein), Plaintiff, vs. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant.County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-1696 COCE (53). November 1, 2012. Robert W. Lee, Judge. Counsel: Todd Landau, Hallandale Beach, for Plaintiff. Douglas G. Brehm, Miami, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORFINAL SUMMARY JUDGMENT AND DENYINGDEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on October 31, 2012 for hearing of the Plaintiff’s Motion for Final Summary Judgment and Defendant’s Motion for Final Summary Judgment, and the Court’s having reviewed the Motions, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
This case involves competing interpretations of a PIP insurance policy. The Plaintiff’s interpretation would result in Allstate’s having to pay more on the individual medical bills submitted, and of course Allstate’s would result in a finding that the lesser amount it paid complied with the policy.
The language of Allstate’s policy provides as follows, as pertains to personal injury protection (PIP) coverage: “In accordance with the Florida Motor Vehicle No-Fault Law, we will pay to or on behalf of the injured person the following benefits. [. . .] Eighty percent of reasonable expenses for medically necessary [. . .] services.” One page later, in the “Limits of Liability” portion of the PIP section, the policy further provides, “Any amounts payable under this coverage shall be subject to any and all limitations, authorized by section 627.736, or any other provisions of the Florida Motor Vehicle No-Fault Law, as enacted, amended or otherwise continued in the law, including but not limited to, all fee schedules” (emphasis added). Allstate argues that the only limitation authorized by section 627.736, as pertains to the bills in this case, is the 200% Medicare cap, and as a result, it is unambiguously electing to use the Medicare cap methodology as its payment method.
Allstate chose to pay the submitted bills at the 200% Medicare cap, an option provided by the No-Fault Law. The Plaintiff argues that Allstate failed to clearly and unambiguously include this methodology in its policy, as required by Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a], and as a result, Allstate is obligated to pay 80% of the “reasonable expenses.” Allstate agrees that if the Plaintiff’s interpretation is correct, it would owe Plaintiff an additional sum towards the medical bills submitted. In other words, Allstate agrees that what the Plaintiff billed is what the market of Broward County typically would deem reasonable.
By use of the phrase “subject to,” Allstate has not incorporated the optional provisions of the Medicare fee cap into the policy. See St. Augustine Pools, Inc. v. James M. Barker, Inc., 687 So.2d 957, 958 (Fla. 5th DCA 1997) [22 Fla. L. Weekly D432a] (the words “subject to” in a contract are distinct from “incorporating” provisions of another document). Allstate has said nothing more than what is already true — all PIP policies are “subject to” these provisions; however, Allstate must clearly and unambiguously take the next step to incorporate these optional provisions into the policy if it desires to use the alternative methodology provided. See also Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.2d 63, 68 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a].
Moreover, Kingsway requires that the choice of methodology be done “in a manner so that the insured patient and health care providers would be aware of it.” Id. The Court finds that Allstate’s choice of confusing language placed in a separate section a page later than the “eighty percent of reasonable expenses” language results in a finding that Allstate did not make its election “in a manner so that the insure patient and health care providers would be aware of it,” even if Allstate’s “subject to” language could be interpreted to incorporate the Medicare fee cap.
The Court notes that no appellate court has yet addressed this precise issue. However, the parties provided several trial level decisions, all of which have found that Allstate’s language does not meet the requirements of Kingsway, although perhaps for different reasons. See Florida Wellness & Rehabilitation Center v. Allstate Ins. Co., Order Granting Plaintiff’s Motion for Summary Judgment and Denying Defendant’s Cross Motion for Summary Judgment, Case No. 12-1848-SOP-25 (Miami-Dade Cty. Ct. Oct. 19, 2012) (Marino-Pedraza, J.); Edge Family Chiropractic, P.A. v. Allstate Ins. Co., Order Granting Plaintiff’s Motion for Summary Disposition, Case No. 2011 SC 004086 (Escambia Cty. Ct. Oct. 11, 2012) (Kinsey, J.); Orthopedic Specialists v. Allstate Fire and Casualty Ins. Co., Order Granting Plaintiff’s Motion for Partial Summary Judgment and Denying Defendant’s Motion for Summary Judgment, Case No. 11006318SC SPC (Pinellas Cty. Ct. Aug. 17, 2012) (Jagger, J.). Although these decisions are clearly not binding on this Court, the uniformity of these decisions is persuasive. See Star Casualty v. U.S.A. Diagnostics, Inc., 855 So.2d 251, 253 (Fla. 4th DCA 2003) [28 Fla. L. Weeky D2274a].
ORDERED and ADJUDGED that the Plaintiff’s Motion for Summary Judgment is GRANTED and Defendant’s Motion for Summary Judgment is DENIED. As the both parties have stipulated that this ruling is dispositive of the case, the Plaintiff shall submit a proposed final judgment. The pretrial conference set in this case for November 5, 2012 is hereby CANCELED.
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