20 Fla. L. Weekly Supp. 932a
Online Reference: FLWSUPP 2009DOMIInsurance — Personal injury protection — Coverage — Plaintiff’s motion for summary disposition on issue of insurer’s application of permissive statutory fee schedule is denied where amendment to PIP policy clearly and unambiguously advises that insurer will pay 80% of expenses at 200% of Medicare Part B fee schedule
GABLES INSURANCE RECOVERY a/a/o Roberto Dominguez, Plaintiff(s), v. ESURANCE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-04059 SP 26 (03). June 18, 2013. Honorable Michelle Gonzalez-Paulson, Judge. Counsel: Thomas R. Poole, Gables Insurance Recovery, Coral Gables, for Plaintiff. Patrick F. Kissane, Fort Lauderdale, for Defendant.
ORDER DENYING PLAINTIFF’S MOTIONFOR SUMMARY DISPOSITION AS PERFLA.SM.CL.R. 7.135 ON THE ISSUEOF MEASURE OF RECOVERABLE DAMAGESON THE FEE SCHEDULE ISSUE
THIS CAUSE came before the Court for hearing on May 13, 2013 on Plaintiff’s Motion for Summary Disposition as per Fla.Sm.Cl.R. 7.135 on the Issue of Measure of Recoverable Damages regarding whether Esurance Insurance Company’s policy of insurance with effective dates of November 17, 2011 to May 17, 2012 clearly and unambiguously notified the patient and health care providers of Defendant’s intent to pay pursuant to Fla. Stat.§ 627.736(5)(a)(2). The Court, having reviewed the motions, having heard argument, and having been sufficiently advised in the premises, finds as follows:
Facts
This is an action for personal injury protection benefits. The case arises from services rendered by All X-Ray Diagnostic Services, Corp. which assigned its benefits to the Plaintiff, Gables Insurance Recovery. All X-Ray Diagnostic Services, Corp. performed x-rays of the cervical, thoracic, lumbar and right shoulder of Roberto Dominguez on February 8, 2012 for injuries he sustained in a January 4, 2012 automobile accident. Esurance Insurance Company received a bill from All X-Ray Diagnostic Services, Corp. for the aforementioned date of service and applied the fee schedule pursuant to Fla. Stat. §627.736(5)(a)(2)(f)(2008), in accordance with their policy language and Florida law.
Legal Analysis
Plaintiff’s Motion states, “The issue presented here is purely one of law for the Court to resolve. It involves a question of statutory and contractual interpretation. Does Section 627.736(5)(a)1, Fla. Stat. (2008), or Section 627.736(5)(a)2, Fla. Stat. (2008), set the amount recoverable under Defendant’s insurance policy? The answer to this question is as follows: absent an endorsement or amendment to the Defendant’s policy to limit the PIP coverage in the amount statutorily permitted, but not required, in Section 627.736(5)(a)2, Fla. Stat.(2008), the Defendant is bound by the broader coverage set forth in Section 627.736(5)(a)(1), Fla. Stat. (2008). Given the Defendant’s contract language and its failure to specifically elect the permissive benefit formula, Florida law mandates that the broader coverage afforded by Section 627.736(5)(a)1, Fla. Stat. (2008) apply to this claim.” Plaintiff’s motion goes on to state, “To elect to provide the lesser coverage (in reference to the fee schedule) the insurer must put the permissive language into its policy via an endorsement or amendment.” Plaintiff argued that Defendant’s policy was unclear and ambiguous and did not notify the patient and health care providers of Defendant’s intent to pay pursuant to Fla. Stat. §627.736(5)(a)(2).
Defendant contended that their policy did contain the requisite amendment and that amendment clearly and unambiguously notified the patient and health care providers of Defendant’s intent to pay pursuant to Fla. Stat.§ 627.736(5)(a)(2). The amendment to Defendant’s policy applicable to this matter, amendment form No. 2011 FL 06 11, Amendment of Policy Provisions-Florida, Part I (B): Personal Injury Protection Coverage, amends the policy form 1001 FL 06 10 and clearly states, under Limit of Liability, Part 7 (F):
For all other medical services, supplies and care, 200 percent of the amount allowed under the physician’s schedule of Medicare Part B. However, if such services, supplies, or care is not reimbursable under Medicare Part B, “we” may limit reimbursement to 80 percent of the maximum reimbursable under worker’s compensation, as determined under “F.S.” 440.13, and rules adopted under that law which are in effect at the time of such services, supplies, or care is provided. (Fla. Stat. §627.736(5) (a) (2) (f).) [emphasis added.]
This Court finds that Plaintiff’s Motion for Summary Disposition as Per Fla.Sm.Cl.R. 7.135 on the Issue of Measure of Recoverable Damages is DENIED. In reviewing Defendant’s amended policy provision, the Court finds that the amendment clearly and unambiguously advises the patient and medical providers that medical benefits means 80 percent of all reasonable and medically necessary expenses at 200 percent of the amount allowed under the physician’s schedule of Medicare Part B. The Court finds Defendant’s policy conforms with Kingsway Amigo Insurance Company v. Ocean Health, Inc. a/a/o Belizaire Gomez, 63 So. 3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a], and Geico Indemnity Company v. Virtual Imaging Services, Inc., 79 So. 3d 55, (Fla. 3rd DCA 2011) [36 Fla. L. Weekly D2597a], as to what needs to be done.
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