20 Fla. L. Weekly Supp. 711a
Online Reference: FLWSUPP 2007BRADInsurance — Personal injury protection — Coverage — Medical expenses — Deductible — Where PIP policy specifically refers to fee schedule limitations of section 627.736(5)(a)2.f., insurer properly applied deductible to 200% of Medicare Part B or workers compensation fee schedule
GOLDCOAST PHYSICIANS CENTER, INC., (A/A/O CHARLES BRADFORD), Plaintiff, vs. GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 11-009595-COSO 61. April 29, 2013. Honorable Arlene S. Backman, Judge. Counsel: Matthew C. Barber, Landau & Associates, P.A., Hallandale Beach, for Plaintiff. Reuven T. Herssein, Herssein Law Group, North Miami, for Defendant.
[Editor’s Note: See 21 Fla. L. Weekly Supp. 441b]
ORDER GRANTING GARRISON PROPERTY ANDCASUALTY INSURANCE COMPANY’S MOTIONFOR SUMMARY JUDGMENT AND DENYINGPLAINTIFF’S MOTION FOR SUMMARY JUDGMENTAS TO WHETHER DEFENDANT IMPROPERLYAPPLIED THE PIP DEDUCTIBLE
THIS CAUSE came before the Court on April 15, 2013, for hearing of the Plaintiff’s Motion for Summary Judgment as to Whether Defendant Improperly Applied the PIP Deductible and GARRISON’s Motion for Summary Judgment, and the Court’s having reviewed the Motions, the entire Court file, and the relevant legal authorities; having heard argument of counsel; having made a thorough review of the matters filed on record; and having been sufficiently advised on the premises, the Court finds as follows:
The two issues before this Court are whether GARRISON properly applied the $1,000 deductible under the policy of insurance at issue to Plaintiff’s bills at either 100% of the amount billed or 200% of the applicable Medicare Part B or Florida Workers’ Compensation fee schedule.
Findings of Fact: Plaintiff is a medical provider who rendered treatment to Charles Bradford for injuries allegedly sustained in an automobile accident occurring on or about October 11, 2010. The policy of insurance at issue provided $10,000 in Personal Injury Protection (“PIP”) benefits to Charles Bradford with a $1,000 deductible. Plaintiff submitted bills to Defendant for dates of service October 18, 2010 through December 7, 2010, totaling $7,096.00. In response to the bills submitted by Plaintiff, GARRISON applied the $1,000.00 deductible to either 100% of the total amount billed or to 200% of the applicable Medicare Part B fee schedule or workers’ compensation fee schedule for same date of service October 18, October 20, and October 21, 2010. Plaintiff contends that the deductible must be applied to 100% of the amount billed regardless of Florida Statute 627.736.
The policy of insurance mandates that GARRISON apply the deductible to 200% of the applicable Medicare Part B or workers compensation fee schedule of the Plaintiff’s bills, and reimburse the remaining amount at 80% of 200% of the applicable Medicare Part B or workers compensation fee schedule. The 5100FL(01) Amendment under the policy of insurance at issue states: “The amount of any deductible stated in the Declarations shall be deducted from the total amount of medical benefits, work loss, and replacement services expenses, before the application of any percentage limitation incurred by or on behalf of any person . . .”
Moreover, the terms Medical Benefits and Reasonable Fee are explicitly defined in the policy of insurance at issue. The Al 00FL(06) Amendment states that “Medical benefits means reasonable fees for medically necessary surgical, medical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services.” The policy defines Reasonable fee as “no more than 80 percent of the following schedule of maximum charges:. . .6. For all other medical services, supplies, and care: a. 200 percent of the applicable Medicare Part B fee schedule. b. If such services, supplies, or care are not reimbursable under Medicare Part B, 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under §440.13 and rules adopted thereunder which are in effect at the time such services, supplies or care are provided.”.
Further, Florida Statute §§627.736(5)(a)(2)(f) and 627.736(5)(a)(3) (2010) permit an insurer to reimburse a medical provider pursuant to the applicable Medicare Part B or workers compensation fee schedule. Specifically, §627.736(5)(a)(2)(f) states that “The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges: . . . For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B. However, if such services, supplies, or care is not reimbursable under Medicare Part B, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided.”
Conclusions of Law: As Plaintiff is of the position that GARRISON must apply the deductible to 100% of the amount billed by the medical provider pursuant to Florida Statute §627.739, and it is GARRISON’s position that it properly applied the deductible to 100% of the amount due on Plaintiffs bills, i.e. at either 100% of the amount billed or 200% of the applicable Medicare Part B or workers compensation fee schedule pursuant to the policy of insurance and Florida Statute §§627.736 and 627.739, the Court will need to interpret the Florida Motor Vehicle No Fault Act codified at section 627.730-627.7405.
Legislative intent is the polestar that guides a court’s inquiry under the Florida No-Fault Law. United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82, 85 (Fla. 2001) [26 Fla. L. Weekly S747a]. “Where the wording of the Law is clear and amenable to a logical and reasonable interpretation, a court is without power to diverge from the intent of the Legislature as expressed in the plain language of the Law.” Id. It has been held that “The legislature is assumed to have expressed its intent through the words found in the statute. If the language of a statute is clear and unambiguous, the legislative intent must be derived from the words used without involving construction or speculating as to what the legislature intended.” Stephen Bond v. State Farm Mutual Automobile Insurance Company, 15 Fla. L. Weekly Supp. 820a (4th Cir. Cty. Ct. June, 2008). “It is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole.” Forsythe v. Longboat Key Beach Erosion Control District, 604 So. 2d 452, 455 (Fla. 1992). “Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Id. “Courts are admonished not to read statutory language in isolation. It must be taken in context, so that its meaning may be illuminated in the light of the statutory scheme of which it is part.” O’Hara v. State, 964 So. 2d 839, 843 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D2214a] (following a statutory cross-reference and reading §893.135, Florida Statutes, in light of §893.13).
The two provisions before this Court are §§627.739(2) and 627.736 (2010).
Section 627.739(2) states:
Insurers shall offer to each applicant and to each policyholder, upon the renewal of an existing policy, deductibles, in amounts of $250, $500, and $1,000. The deductible amount must be applied to 100 percent of the expenses and losses described in s. 627.736. After the deductible is met, each insured is eligible to receive up to $10,000 in total benefits described in s. 627.736(1). However, this subsection shall not be applied to reduce the amount of any benefits received in accordance with s. 627.736(1)(c).
[Emphasis added]
The plain language of the statute says that a PIP deductible applies to “100% of the expenses and losses described in §627.736.” Id. [Emphasis added] Therefore, the Court must follow the cross-reference and examine the language of section 627.736 in order to determine what expenses and losses are “described in s. 627.736.” Id.; see also O’Hara, 964 So.2d at 843. The Preface to the Florida Statutes provides that “a cross-reference to a specific statute incorporates the language of the referenced statute as it existed at the time the reference was enacted.” Preface at VIII, Fla. Stat. (2008); see also Van Pelt v. Hilliard, 78 So. 693, 698 (1918). As the Florida Supreme Court explains, “[i]t is proper for statute to adopt all or a part of another statute by specific and descriptive reference thereto.” Overstreet v. Blum, 227 So. 2d 197, 198 (Fla. 1969) [Emphasis added] “A statute may adopt a part or all of another statute by specific and descriptive reference thereto, and the effect is the same as if the statute or the part thereof adopted had been written into the adopted statute.” Hecht v. Shaw, 151 So. 333, 333 (1933); 48A Fla. Jur. 2d Statutes § 12; see also e.g. O’Hara v. State, 964 So. 2d 839, 843 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D2214a] (following a statutory cross-reference and reading §893.135, Florida Statutes, in light of §893.13); Golf Channel v. Jenkins, 752 So. 2d 561, 564 (Fla. 2000) [25 Fla. L. Weekly S31a] (“We have also stated that related statutory provisions should be read together to determine legislative intent, so that ‘if from a view of the whole law, or from other laws in pari material the evident intent is different from the literal import of the terms employed to express it in a particular part of the law, the intent should prevail, for that, in fact is the will of the Legislature.’ ”) (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 454 (Fla. 1992); Van Pelt, 78 So. At 695). Most recently, the Honorable Lawrence D. King denied a plaintiff’s motion for summary judgment wherein plaintiff argued that the deductible should have been applied to plaintiff’s bills regardless of whether the bills were reasonable or medically necessity. Plaintiff argued that the court should examine Florida Statutes section 627.739(2) by itself and not in conjunction with section 627.736. In denying plaintiff’s motion, the court held that section 627.739(2) and section 627.736 must be read together, and in doing so, concluded that a PIP deductible applies to 100 percent of the reasonable and necessary medical expenses. Synergy Wellness Clinic, LLC (a/a/o Aesha Wigfall) v. United Automobile Ins. Co., No: 09-10001SP26(04) (Fla. 11th Cnty. Ct. March 15, 2013)
Florida Statute §627.736 allows insurers to utilize the Medicare Part B or workers compensation fee schedule as to bills received by medical providers. Specifically, Florida Statute §627.736(5)(a)(2)(f) states:
The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges: . . . all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B. However, if such services, supplies, or care is not reimbursable under Medicare Part B, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation is not required to be reimbursed by the insurer.
Further, Florida Statute §627.736(5)(a)(3) states:
For purposes of subparagraph 2., the applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect at the time the services, supplies, or care was rendered and for the area in which such services were rendered, except that it may not be less than the allowable amount under the participating physicians schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B.
Florida law is clear that an insurer must specifically refer to the fee schedule limitation in Florida Statute §627.736(5)(a)(2)(f) in order to pay in accordance with same. Kingsway Amigo Insurance Company v. Ocean Health, Inc., 63 So. 3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a] (“If the [Insurer] wanted to take advantage of the permissive fee schedule, it should have clearly and unambiguously selected that payment methodology in a manner so that the insured patient and health care providers would be aware of it,” citing Maryland Cas. Co. v. Murphy, 342 So. 2d 1051 (Fla. 3d DCA 1977) (in order to rely on statutory provisions allowing an insurance company to prohibit assignment of benefits, insurance company was required to include a provision to that effect in its insurance policy.”)). See also Geico Indemnity Co. v. Virtual Imaging Services Inc. 79 So. 3d 55 (Fla. 3rd DCA 2011) [36 Fla. L. Weekly D2597a] and State Farm v. Nichols, 21 So.3d 904 (Fla. 5th DCA 2009) [34 Fla. L. Weekly D2275b]. Should an insurers policy of insurance contain the necessary language to enable it to apply the Medicare Part B or workers compensation fee schedule, then reading sections 627.736 and 627.739(2) together leads to the inescapable conclusion that an insurer is permitted to apply the deductible to 100% of the amount billed or 200% of the applicable Medicare Part B or workers compensation fee schedule.
Plaintiff’s interpretation is not supported by the language of section 627.739(2) because it ignores the words “described in s. 627.736.” According to the Oxford English Dictionary, the word “describe” means to “give an account in words of (someone or something), including all the relevant characteristics, qualities, or events.” Oxford English Dictionary (2012 ed.) [Emphasis added] Section 627.736 describes the manner in which an insurer can apply the Medicare Part B or workers compensation fee schedule to a medical providers bills provided the insurer has the requisite language in its policy allowing it to do so. Thus, under the plain language of the statutes (and the case law interpreting these statutes), the deductible can be applied to either 100% of the amount billed or 200% of the applicable Medicare Part B or workers compensation fee schedule for this particular Garrison policy at issue.
This rule is consistent with case law which holds that a deductible should only be applied to expenses which are deemed compensable. General Star Indemnity Co. v. West Florida Village Inn, Inc., 874 So. 2d 26, 33-34 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D1070b] (“The notion that a deductible could be applied to loss that is not covered by the policy is fundamentally unreasonable. . .”); United Auto. Ins. Co. v. Florida Orthopaedic Center, a/a/o Alexis Gonzalez, 16 Fla. L. Weekly Supp. 402a (Fla. 17th Circuit Appellate 2009), cert denied No. 4D09-3002 (Fla 4th DCA 2009) (holding that the deductible did not apply to bills which were denied as noncompensable); cf. Progressive American Ins. Co. v. Stand-Up MRI of Orlando, 990 So. 2d 3, 6 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a] (holding that the “English Rule” of priority is “first come-first served, for medical providers as long as their PIP claim is deemed to be compensable.”) [Emphasis added]
Moreover, the policy at issue specifically state that “The amount of any deductible stated in the Declarations shall be deducted from the total amount of medical benefits, work loss, and replacement services expenses, before the application of any percentage limitation incurred by or on behalf of any person . . .” [Emphasis added] The policy goes on to state that “Medical benefits means reasonable fees for medically necessary surgical, medical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services.” Reasonable fee is defined as “no more than 80 percent of the following schedule of maximum charges: . . .6. For all other medical services, supplies, and care: a. 200 percent of the applicable Medicare Part B fee schedule. b. If such services, supplies, or care are not reimbursable under Medicare Part B, 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under §440.13 and rules adopted thereunder which are in effect at the time such services, supplies or care are provided.” [Emphasis added] Thus, the policy mandates that medical benefits be applied to the deductible at 200% of the applicable Medicare Part B or workers compensation fee schedule.
As the policy at issue specifically defines medical benefits and reasonable fee thereby incorporating Florida Statute §627.736(5)(a)(2)(f) and §627.736(5)(a)(3) pursuant to Kingsway Amigo Insurance Company, the deductible in this case was properly applied to the amount due at 200% of the applicable Medicare Part B or workers compensation fee schedule.
In accordance with the foregoing, it is therefore ORDERED AND ADJUDGED that GARRISON’s Motion for Summary Judgment is hereby GRANTED, and Plaintiff’s Motion for Summary Judgment as to Whether Defendant Improperly Applied the PIP Deductible if hereby DENIED.
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