20 Fla. L. Weekly Supp. 673a
Online Reference: FLWSUPP 2007SCHWInsurance — Personal injury protection — Coverage — Medical expenses — Policy language providing that insurer will pay 80% of reasonable expenses but also referencing “all 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.
JEREMY GORDON, D.C. AAO PHILOMENA SCHWARTZ, Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2012 23848 CONS, Division 71. March 25, 2013. Honorable Robert A. Sanders, Jr., Judge. Counsel: Kimberly Simoes, The Simoes Law Group, P.A., Deland, for Plaintiff. Anthony Parrino, St. Petersburg, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENTAND DENYING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS CAUSE coming before the Court for consideration on Plaintiff’s and Defendant’s Motions For Summary Disposition and after reviewing the court file, hearing argument of counsel and being fully apprised in the premises, orders as follows:
I. Background.
Allstate’s policyholder, Philomena Schwartz, was involved in a motor vehicle accident on August 26, 2010. As a result of injuries received in this accident, Schwartz received medical treatment from Jeremy Gordon, D.C. and executed an assignment of benefits to Gordon.
Pursuant to Fla. Stat. §627.736 and Schwartz’ policy of insurance, Dr. Gordon submitted medical bills to Allstate for the treatment rendered to Ms. Schwartz. Allstate reduced payment for services rendered to Schwartz contending that the policy allowed Allstate to limit reimbursement to 200 percent of the participating physicians fee schedule of Medicare Part B pursuant to Fla. Stat. §627.736(5)(a)2.f. Gordon contends that the language contained in Ms. Schwartz’ policy is ambiguous and is insufficient to invoke the right to limit reimbursement to 200% of Medicare Part B. Gordon further asserts that Allstate’s policy wholly fails to meet the requirements delineated by the Fourth District in Kingsway Amigo Ins. Co. v. Ocean Health, Inc. aao Belizaire Gomez, 63 So. 3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a].
Allstate stipulates that the services rendered to Schwartz by Gordon were reasonable, related and necessary. However, Allstate contends that its policy language allowed it to limit payment of No Fault benefits to the fee schedules set forth in §627.736(5)(a)2.
II. The Summary Judgment Hearing
The hearing on the parties’ cross motions for final summary disposition commenced on March 11, 2013. At the hearing Gordon argued that Allstate failed to clearly and unambiguously elect the reimbursement limitations in Fla. Stat. §627.736(5)(a)2.f. and therefore, Allstate was required to pay the reasonable charge billed by Gordon. Allstate argued that its policy language clearly allowed it to limit payment to the fee schedules found in the Florida No Fault law which includes the payment limitations in Fla. Stat. §627.736(5)(a)2.f. The applicable policy provision states, in relevant part, under Part III, Personal Injury Protection Coverage, that Allstate will pay,
1. Medical Expenses
Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services. (Emphasis added)
The subject policy further provides at the Florida Amendatory Endorsement section that:
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)
Based on this policy language, Gordon contended that Allstate attempted to create a hybrid payment methodology through its adoption of Fla. Stat. §627.736(5)(a)(1) in one portion of the policy and its separate reference to “all fee schedules” in another portion of the policy. Gordon suggested that because Allstate did not clearly and unambiguously select one of the two possible payment methodologies, Allstate was required to pay 80% of the reasonable charges billed by Gordon. Gordon urged that Allstate’s inclusion of language requiring it to pay “reasonable expenses” in the policy and its attempt to also incorporate payment limitations by referencing “all fee schedules” was rejected by the Third District Court in Geico Indemnity Co. v. Virtual Imaging Services, Inc., 79 So. 3d 55 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a]. According to Gordon, such language is misleading and internally inconsistent thereby requiring the policy to be interpreted in favor of the broadest coverage available to the policyholder.
In response, Allstate suggests that the foregoing policy language is “clear and unambiguous” and that the policy expressly states that payment “shall” be limited by “all fee schedules.” Further Allstate contends that neither Kingsway nor Virtual Imaging are instructive because neither case contained any language regarding fee schedules.
III. Findings of Fact and Law.
In this lawsuit Gordon contends that Allstate failed to pay 80% of the reasonable charges for the services rendered to Allstate’s policyholder, Philomena Schwartz. It is undisputed that the services billed were reasonable, necessary and related. Therefore, the sole dispute for the Court to resolve is whether Allstate’s policy permitted it to take advantage of the “safe harbor” provisions found at Fla. Stat. §627.736(5)(a)2.f. Gordon contends that Allstate’s policy language is ambiguous and insufficient to comply with the requirements delineated by the Fourth District Court in Kingsway Amigo Ins. Co. v. Ocean Health, Inc. aao Belizaire Gomez, 63 So. 3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a]. This Court agrees.
The Florida legislature established two separate and distinct payment methodologies. The first methodology is found at 627.736(5)(a)1. which provides:
(5) Charges for treatment of injured persons. —
(a) 1. Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment, if the insured receiving such treatment or his or her guardian has countersigned the properly completed invoice, bill, or claim form approved by the office upon which such charges are to be paid for as having actually been rendered, to the best knowledge of the insured or his or her guardian. In no event, however, may such a charge be in excess of the amount the person or institution customarily charges for like services or supplies. With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.
The second methodology is found at 627.736(5)(a)2.f. and provides:
2. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
. . .
f. For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B.
Fla. Stat. §627.736(5)(a)2.f. established a minimum reimbursement schedule which insurance carriers were permitted to elect if they properly followed the mandates set forth by Kingsway and Virtual Imaging.
IV. Opinion of the Court.
The Court finds that Allstate’s general language contained within the limitation of liability paragraphs does not clearly and unambiguously notify the insured patient and the medical provider of Allstate’s intent to limit reimbursement pursuant to Fla. Sta. §627.736(5)(a)2.f. Furthermore, Allstate’s policy fails to adopt the language contained in (5)(a)2.f. and fails to specify that Allstate will pay 80% of 200% of the Medicare Part B fee schedule.
Additionally, an ambiguity is created by Allstate’s inclusion of language which provides that it will pay 80% of all reasonable expenses and conflicting language that attempts to limit reimbursement to “all fee schedules.” Moreover, the policy language leaves the unanswered question as to whether Allstate is adopting the additional coverage limitations contained in 5(a)2.f. which provides that “services, supplies, or care that is not reimbursable under Medicare or workers’ compensation is not required to be reimbursed by the insurer.” Fla. Stat. §627.736(5)(a)1. does not contain any such limitation on the type of services that would be covered by No Fault, thereby creating further uncertainty regarding limitations, payment methodology and scope of coverage provided to the insured.
As the parties have stipulated to all remaining issues, the Court finds that Plaintiff’s Motion for Final Summary Judgment is GRANTED and Defendant’s Motion for Final Summary Judgment is DENIED.
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