20 Fla. L. Weekly Supp. 930a
Online Reference: FLWSUPP 2009RODRInsurance — Personal injury protection — Coverage — Medical expenses — Insurer may not limit coverage in accordance with permissive statutory fee schedule where policy provides that insurer will reimburse 80% of medically necessary expenses and does not mention Medicare Part B fee schedule
HIGH FIELD MRI OF MIAMI DADE, LLC. AS ASSIGNEE OF NOHARYS RODRIGUEZ, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 11-2431 SP 26 3. May 30, 2013. Michaelle Gonzalez Paulson, Judge. Counsel: Carlos D. Gonzalez and DeWayne K. Terry, Rubenstein Law, P.A., Miami, for Plaintiff. Andrea Harris, Office of the General Counsel, United Automobile Insurance Company, Miami, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR PARTIAL SUMMARY JUDGMENT
This cause came before the Court on April 29, 2013, on Plaintiff’s Motion for Partial Summary Judgment. This Honorable Court, having reviewed the motions and the entire Court file, heard argument of counsel, reviewed the relevant legal authority, and been otherwise advised in the premises, makes the following findings of fact and conclusions of law.
SUMMARY JUDGMENT STANDARD
Summary Judgment is essentially a preliminary proceeding to determine if there is sufficient evidence to justify a trial on the issues raised in the pleadings. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]. The question for determination on a motion for summary judgment is the existence or non-existence of a material factual issue. Jones v. Stoutenburgh, 91 So.2d 299 (Fla. 1956). There are two (2) requisites for granting a motion for summary judgment. First, there must be no genuine issue of material fact. Second, one of the parties must be entitled to judgment as a matter of law on the undisputed material facts. Carpineta v. Shields, 70 So.2d 573 (Fla. 1954). It is the movant’s burden on summary judgment to prove the non-existence of genuine triable issues. Holl v. Tolcott, 191 So.2d 40 (Fla. 1966). Once the movant tenders evidence to support the motion, the opposing party must come forward with counter evidence sufficient to reveal a genuine issue of material fact. Landers v. Milton, 370 So.2d 368, 370 (Fla. 1979). It is not enough for the opposing party merely to assert that an issue exists. Landers at 368.FINDINGS OF FACT
Plaintiff is an office providing medical services to patients in Miami-Dade County, Florida. Plaintiff filed suit against Defendant to collect a payment for the unpaid medical bill of a service rendered to, Noharys Rodriguez (hereinafter “patient”), a non-party to this case. On March 8, 2010, Plaintiff performed an MRI of patient’s cervical spine. Patient received said medical treatment as a result of injuries sustained in a motor vehicle accident that occurred on February 17, 2010.
The Patient is afforded PIP insurance coverage through an insurance contract sold by Defendant to Noel Camejo. The policy number for the insurance contract at issue is UAD 007476801. Said insured, Noel Camejo, is another non-party to this case.
ARGUMENT
When viewed in the light most favorable to Defendant, the discovery responses, pleadings, affidavits of the treating physician and billing supervisor of Plaintiff, and the March 15, 2012 deposition of Defendant’s claims adjuster, Sarah Vanessa Columbie, prove that there are no genuine issues of material fact regarding the following issues: existence of the motor vehicle accident, licensing of the physicians and medical facility, PIP insurance coverage, Plaintiff’s standing to sue, and the timeliness, reasonableness, relatedness, and necessity of the medical bill.
Therefore, this Court finds that Plaintiff is entitled to a judgment as a matter of law for the following issues.
I.
A MOTOR VEHICLE ACCIDENT OCCURRED ON FEBRUARY 17, 2010
Based upon the undisputed facts, this Court finds and holds that there was in fact a motor vehicle accident on February 17, 2010 and Noharys Rodriguez was injured as a result of her involvement in said motor vehicle accident.
II.
PLAINTIFF AND ITS STAFF, AND TREATING PHYSICIAN MAINTAINED PROPER LICENSURE THROUGHOUT THE TREATMENT OF PATIENT
Based upon the undisputed facts, this Court finds and holds that Plaintiff and its medical personnel were all properly licensed to perform the medical service on Noharys Rodriguez.
III.
PATIENT IS ENTITLED TO CLAIM PIP BENEFITS UNDER THE POLICY OF INSURANCE BETWEEN DEFENDANT AND NOEL CAMEJO
Based upon the undisputed facts, this Court finds and holds that Noharys Rodriguez was entitled to claim personal injury protection coverage under the policy sold to Noel Camejo. Defendant admitted in its Answer and Affirmative Defenses that Patient was entitled to claim personal injury protection coverage under the aforementioned policy of insurance between Noel Camejo and Defendant. Furthermore, Defendant admitted to paragraph 7 of Plaintiff’s Complaint, which states that the personal injury protection policy of insurance was in full force and effect on the day of the subject motor vehicle accident.
IV.
PLAINTIFF MAINTAINS PROPER STANDING
Based upon the undisputed facts, this Court finds and holds that Plaintiff has proper standing to maintain the present action.
V.
THE MEDICAL BILL WAS TIMELY SUBMITTED TO DEFENDANT AS REQUIRED BY FLA. STAT. § 627.736
Based upon the undisputed facts, this Court holds that Plaintiff properly and timely submitted the medical bill at issue, as required by Fla. Stat. § 627.736. Defendant agreed that the medical bill at issue was timely received by Defendant.
VI.
THE MEDICAL BILL WAS FOR A MEDICAL SERVICE THAT WAS USED TO TREAT PATIENT’S INJURIES AS A RESULT OF THE FEBRUARY 17, 2010 MOTOR VEHICLE ACCIDENT
This Court finds that the medical bill at issue was related to the motor vehicle accident Noharys Rodriguez was involved in. There is no genuine issue of material fact regarding whether the medical bill was for a medical service used to treat injuries Patient suffered from the February 17, 2010 motor vehicle accident. Defendant agreed that the medical bill was related to the injuries Patient suffered from the aforementioned motor vehicle accident. Plaintiff filed an affidavit of the treating physician, Dr. Paul Shlugman, attesting to the relatedness of the bill. Defendant did not file anything in opposition.
VII.
THE MEDICAL BILL WAS FOR A MEDICAL SERVICE THAT WAS MEDICALLY NECESSARY TO TREAT PATIENT’S INJURIES RECEIVED AS A RESULT OF THE FEBRUARY 17, 2010 MOTOR VEHICLE ACCIDENT
This Court finds that the medical bill was for treatment that was medically necessary to treat patient’s injuries she received as a result of her involvement in the aforementioned motor vehicle accident. Plaintiff filed an affidavit of the treating physician, Dr. Paul Shlugman, attesting to the medical necessity of the medical service performed on Noharys Rodriguez. Defendant did not file anything in opposition.
VIII.
DEFENDANT’S REIMBURSEMENT OF PLAINTIFF’S MEDICAL BILL IN ACCORDANCE WITH THE FEE SCHEDULE CONTAINED IN FLA. STAT. 627.736(5)(A)(2)F (2011) WAS IMPROPER SINCE IT FAILED TO INCORPORATE POLICY LANGUAGE ALLOWING FOR SUCH REDUCTIONS
The insurance contract in effect during the motor vehicle accident, plainly states that Defendant will reimburse all medical charges at 80% of all “medically necessary expenses” amounts. Said contract does not make a specific election to use the fee schedules prescribed in Fla. Stat. 627.736(5)(a)(2)(f) (2011). The contract specifically states:
“The Company will pay, in accordance with the Florida Motor Vehicle No-Fault Law, to or for the benefit of the injured person:
Medical benefits — eighty percent of all medically necessary expenses defined as a medical service or supply that a prudent physician would provide for the purpose of preventing, diagnosing, or treating an illness, injury disease, or symptom: In accordance with generally accepted standards of medical practice; Clinically appropriate in terms of type, frequency, extent, site and duration; and Not primarily for the convenience of the patient, physician or health care provider.”
United Automobile Insurance Company, Florida Personal Automobile Insurance 200 (02/08) at 13. (Emphasis added).
This contract defines medical expenses as:
“ ‘Medical expenses’ means reasonable expenses: 1) for necessary medical, surgical, x-ray, dental, ambulance, hospital, professional nursing and rehabilitative services; 2) for prosthetic devices; and 3) for necessary remedial treatment and services recognized and permitted under the laws of the state for an injured person who relies upon spiritual means through prayer alone for healing in accordance with his religious beliefs.”
United Automobile Insurance Company, Florida Personal Automobile Insurance 200 (02/08) at 2.
Despite the aforementioned contract language, Defendant has reduced such reimbursement in accordance with the provisions contained in Fla. Stat. 627.736(5)(a)(2)(f). Defendant has done so even though it recognizes that this contract does not mention anything about the Medicare Part B Fee Schedule.
IX.
CASE PRECEDENCE
Defendant’s position is incorrect and without legal support. In Geico Indemnity Company v. Virtual Imaging Services, Inc., 2011 WL 5964369 (Fla. 3rd DCA 2011) [36 Fla. L. Weekly D2597a], the appellate court was faced with the same issue: “May an insurer limit provider reimbursement to 80% of the schedule of maximum charges described in Fla. Stat. 627.736(5)(a)(2)(f) if its policy does not make a specific election to do so?” Geico Indemnity Company, 2011 WL at 1. The court answered this question in the negative and stated that there are two ambiguities that prevent the insurance company from reimbursing according to the provisions of this statute. These ambiguities are also found in the present case since the insurance contracts are very similar.
First, the language of the contract of insurance allows for two methods of medical bill reimbursements: (a) reimbursements could be made at 80% of their reasonable amounts or (b) reimbursements could be made according to Florida Motor Vehicle No-Fault Law, i.e. Fla. Stat. 627.736(5)(a)(2)(f) reimbursements will be made at 80% of 200% of the amount listed on the Medicare fee schedule. Id. Since the insurance contract did not expressly state that it will pay only according to the provisions found in Florida Motor Vehicle No-Fault law, i.e. Fla. Stat. 627.736(5)(a)(2)(f), the portion of the contract is itself ambiguous.
Second, the permissive language of section 627.736(5)(a)(2)(f) itself creates an ambiguity. The relevant section states as follows: “The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges . . . [of] 200 percent of the allowable amount under. . . Medicare Part B.” Fla. Stat. 627.736(5)(a)(2)(f) (emphasis added). This language is itself not permissive and therefore not mandatory.
A provision, such as the one in the present case, indicating an insurer may limit reimbursements leaves unclear whether the option will be exercised. Geico Indemnity Company, 2011 WL at 2. Therefore, said provision is ambiguous because it provides no indication to policyholders as to the amount of reimbursement for medical services. Ambiguities in insurance contracts are resolved in favor of the insured. See, State Farm Mutual Auto. Ins. Co. v. Menendez, 70 So.3d 566, 570 (Fla. 2011) [36 Fla. L. Weekly S469a].
The contract in the present case is identical to the one in Geico Indemnity Company because they both allow reimbursements to be made at 80% or according to the relevant Florida Statue.
Pursuant to Geico Indemnity Company v. Virtual Imaging Services, Inc., this Court holds that Defendant is not allowed to reduce the medical bill using the Medicare Part B Fee Schedule.
X.
THE AMOUNT BILLED BY PLAINTIFF IS THE REASONABLE AMOUNT AND DEFENDANT MUST PAY 80% OF THIS AMOUNT AFTER APPLYING THE $1,000.00 DEDUCTIBLE
This Court holds that the amount billed by Plaintiff is the reasonable amount. Specifically, said reasonable amount is $556.02 or ((Medical Bill of $1850.00 – Deductible of $1000.00) * 80%) – Payments of $123.98. Plaintiff filed an affidavit of the office manager and corporate representative of Plaintiff, Angie Davis, attesting to the reasonableness of the medical bill in question. Defendant did not file anything in opposition.
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