20 Fla. L. Weekly Supp. 676a
Online Reference: FLWSUPP 2007MATIInsurance — Personal injury protection — Coverage — Medical expenses — Policy language providing that insurer will pay 80% of reasonable expenses but also referencing “applicable fee schedules” does not provide clear and unambiguous notice of intent to limit reimbursement pursuant to Medicare Part B fee schedule of section 627.736(5)(a)2.f.
HALLANDALE OPEN MRI, LLC., as assignee of Gustavo Matienzo & Harriet Daphnis, Plaintiff, vs. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-01821 CONO 70. October 12, 2012. John D. Fry, Judge. Counsel: Cris Evan Boyar, Boyar and Freeman, P.A., Margate, for Plaintiff. Scott Dutton, for Defendant.
ORDER ON PLAINTIFF’S MOTION FORSUMMARY JUDGMENT/DISPOSITION
THIS CAUSE having, come to be heard before the Court on hearing on October 12, 2012 on Plaintiff’s Motion for Summary Judgment/Disposition and, having reviewed the motions and the entire court file; the deposition of the adjuster, having heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background: The Plaintiff provided MRIs to the Defendant’s insureds after they were involved in a car crash. There is no dispute a PIP policy of insurance was issued by the Defendant that were in full force and effect for these two patients. The Defendant issued the same policies for these patients. The Plaintiff submitted bills to the Defendant for payment of MRI bills. The Plaintiff’s bill exceed the statutory permissive fee schedule. which is 200% of Medicare Part B. The Defendant received the bills and paid the bills at 80% of 200% of Medicare Part B participating fee schedule. The Defendant did not pay 80% of the billed amount. The Plaintiff was not satisfied with this payment and the Plaintiff submitted a statutory pre-suit demand letter to the Defendant. The Defendant received the demand letters and did not pay the balance that was claimed to be owed to the Plaintiff. The Defendant claimed it was permitted to pay the bills pursuant to the permissive fee schedule set forth in the PIP statute.
Thereafter, the Plaintiff filed suit against the Defendant seeking declaratory relief for the court to determine if the Defendant can, as a matter of law, issue payment for the MRI bills in question pursuant to the Medicare Part B participating fee schedule as set forth in the PIP statute. If the Defendant is entitled to limit payment based on the fee schedule the Plaintiff would be precluded from both suing the Defendant for the difference between 80% of the billed amount and the amount paid, and, in addition, from balance billing the patient.
Under Florida law, if an insurer properly incorporates the permissive fee schedule into its policy of insurance the provider would be precluded from balance billing the patient. See §627.736(5)(a)(5) which states if an insurer limits payment as authorized by subparagraph 2., the person providing such services, supplies, or care may not bill or attempt to collect from the insured any amount in excess of such limits, except for amounts that are not covered by the insured’s personal injury protection coverage due to the coinsurance amount or maximum policy limits.”
Plaintiff moves for Summary Judgment as to whether the Defendant has properly incorporated the permissive fee schedule into its policy of insurance which would be applicable to this claim. The Plaintiff argues the policy of insurance requires the Defendant to pay 80% of the reasonable expense and the Defendant cannot issue payment, as a matter of law, pursuant to the fee schedule as the policy of insurance does not expressly and clearly incorporate the permissive language of the 2008 PIP statute, which provides PIP insurers with the option to limit reimbursement to the participating physician’s Medicare Part B Fee Schedule.
The policy of insurance and notification: The court has reviewed the Defendant’s policy of insurance and the applicable endorsement, FL-U85 ed 5/2010 which defines the coverage along with the Notice of Personal injury Protection Benefits provided to the insureds after the loss was reported. The Notification states “PIP pays 80% of medical benefits for all reasonable expenses for medically necessary. . .” No additional definition is provided and the Defendant does not state it will pay bills based on 200% of Medicare.
The endorsement at issue defines medical benefits as “80% of all reasonable expenses allowed by the No-Fault Law, subject to the applicable fee schedules and payments limitations, for medically necessary. . . .” There is no specific definition of reasonable expenses provided in the endorsement. There is no specific statute provided relative to the Florida Motor Vehicle No Fault law. No such statute was ever provided to the insureds according to the deposition of the adjuster which was filed by the Plaintiff.
The applicable endorsement also states “we will only pay for medical benefits: b. for medically necessary services, supplies, treatment and care that do not exceed the maximum reimbursement allowance as set forth in the applicable fee schedules and payment limitations, and other payment guidelines, in the No-Fault Law, and any schedules and limitations under federal or state law for medical expenses. Lastly, the endorsement, states “[A]s authorized by the No-Fault Law, we may use various sources of information to decide if any medical expense is reasonable and necessary and caused by an accident. These sources include but are not limited to: . . . .c. Computer programs and databases for the analysis of medical treatment and expenses; and d. Published sources of medical expense information.
Conclusions of law: This court is bound by the Fourth District Court of Appeal in Kingsway Amigo v. Ocean Health, 63 So.2d 3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a] and USAA v. DPI of North Broward, 19 Fla. L. Weekly Supp. 925a (Fla. 17th Cir. Court 2012). In Kingsway the court held the insurer was obligated to pay 80% of the medical expenses as stated in the policy because the policy made no reference to the permissive methodology of subsection 627.736(5)(a)(2). The court held that an Insurer seeking to avail itself of the safe-harbor option must clearly and unambiguously indicate in the language of the policy its intent to do so. Id at 68. In USAA the court found the policy of insurance did not clearly and unambiguously incorporate the permissive statutory fee schedule within its policy of insurance and, as a result, found USAA was not entitled to limit reimbursement to the permissive statutory fee schedule.
In this case, the Court finds the policy clearly states it will pay 80% of all reasonable expenses and to determine what is a reasonable expense the Defendant may use various sources of information including, but not limited to, computer programs and data bases and published sources of medical expense information, The Defendant may not use the portion. of its policy which states “subject to the applicable fee schedule and payment limitations allowed by the No-Fault law.” This subject to language is not a clear and unambiguous election as the Defendant has not clearly elected this fee schedule. See GEICO v. Virtual Imaging, 79 So.3d 66 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a], Thus, no fee schedule would be applicable. It cannot be applicable until the Defendant makes a clear election.
As it relates to the portion of the policy that states the Defendant will only pay for medical benefits for medically necessary services, supplies, treatment and care that do not exceed the maximum reimbursement allowances as set forth in the applicable fee schedules and payment limitations, and other payment, guidelines, in the No-Fault Law, and any schedules and limitations under federal or state law for medical expenses, the court finds this language ambiguous and unmoving. First, the Plaintiff billed over the fee schedule so this policy can be interpreted to mean the Defendant does not have to issue any payment which would violate the PIP statute. This language also fails to clearly and unambiguously incorporate the fee schedule. Thus, fee schedules would not apply.
In sum, the Defendant’s policy of insurance fails to clearly and unambiguously place the insured on notice that the Defendant intended to pay less than 80% of the reasonable expenses.
As such, the Plaintiff’s Motion is hereby granted and the Defendant may not issue payment, as a matter of law, based on the permissive statutory fee schedule which utilizes 200% of Medicare Part B. The provider is free to balance bill its patients.
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