20 Fla. L. Weekly Supp. 77a
Online Reference: FLWSUPP 2001MCCLInsurance — Personal injury protection — Deductible — PIP statute and policy require that deductible be subtracted from total billing amount before statutory or contractual reductions are applied
NEW SMYRNA IMAGING, LLC., As assignee of Megan McClanahan, Plaintiff, vs. GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 2011-SC-1593. October 10, 2012. Honorable Jerri L. Collins, Judge. Counsel: Mark A. Cederberg, Bradford Cederberg P.A., Orlando, for Plaintiff. David Hwalek, Herssein Law Group, Tampa, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT AND DENYING DEFENDANT’SMOTION FOR SUMMARY JUDGMENT
THIS MATTER came before this Honorable Court on Plaintiff’s and Defendant’s competing Motions for Final Summary Judgment and this Honorable Court having heard arguments of counsel, the Court being otherwise fully advised in the premises, finds as follows:
This is a claim for PIP benefits arising out of a motor vehicle accident that happened on December 25, 2010. The Plaintiff in this matter is New Smyrna Imaging, LLC, as assignee of Megan McClanahan. The assignor, Megan McClanahan, took out a contract of insurance with Defendant, Garrison Property and Casualty Insurance Company. The contract included a $500.00 deductible for PIP benefits. On February 28, 2011, the Defendant, Garrison received a bill from the Plaintiff for services rendered to the assignor on February 15, 2011 totaling $1,650.00. Defendant reduced the bill from $1,066.28 (200% of the Medicare Part B Schedule) and then subtracted the $500.00 deductible from $1,066.28 leaving a balance of $566.28. The Defendant then multiplied the balance of $566.28 by 80% and issued a payment to Plaintiff in the amount of $453.02.
The Plaintiff brought suit alleging misapplication of the deductible stating that Florida Statute 627.736 and 627.739 requires the $500.00 deductible be applied to 100% of the medical bill before the Defendant applied any percentage limitations to the outstanding bill. The Defendant’s position is that they correctly applied the deductible to the Plaintiff’s bill pursuant to the terms of the insurance contract and Florida Statutes 627.736 and 627.739(2). Both parties are seeking Final Summary Judgment on this issue alleging as a matter of law that their respective calculations are the legally proper formula to determine amounts due for medical services.Conclusions of Law
The main issue before this Court is whether the insured’s deductible amount should be applied to the initial charges billed by the Plaintiff for medical services rendered to the insured pursuant to her Personal Injury Protection (hereinafter “PIP”) benefits under sections 627.736 and 627.739 of the Florida Statutes or whether the deductible should be applied after percentage limitations have been imposed.
This case presents an issue of statutory interpretation. It is well-settled that in attempting to discern legislative intent, the Courts first look to the actual language in the statute. Krause v. Textron Financial Corp., 59 So. 1085 (Fla. 2011) [36 Fla. L. Weekly S54a]; Saleeby v. Rock Elson Construction, Inc. 3 So.3d 1078 (Fla. 2009) [34 Fla. L. Weekly S106a]. Additionally, when the statute is clear and unambiguous, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning. Id.
Florida Statute 627.739(2) states: The deductible amount must be applied to 100 percent of the expenses and losses described in 627.736.
Prior to the 2003 amendment of the above statute, the deductible was applied to “benefits otherwise due”. The Court in International Bankers Insurance Company v. Arnone, et al. 552 So.2d 908 (Fla. 1989) found that the statutory language “benefits otherwise due” required the 80% reduction under the policy before the deductible was applied.
The statute changed to delete the words “benefits otherwise due” and instead reads that the deductible should be applied to 100 percent of the expenses and losses as defined by section 627.739. Section 627.736 no longer has the qualifying phase “otherwise due”. The defense argues that the words “as defined in s.627.736” is a similar qualifying phase that means the percentage reduction is appropriate.
The very term “100 percent” means to encompass the entire body. It is illogical to think that the legislature intended to include the word “100%” just to redirect the parties to reduce it to 80% in the same sentence. The words “described in s.627.736” modify the phrase “expenses and losses” and do not modify “100 percent”. The Court finds that the plain meaning of this statute is that the deductible must first be applied to the total bill and then the insurance company is entitled to adjust the payment accordingly. Furthermore, the parties’ contract states that the deductible shall be applied to the “total amount of medical benefits, work loss and replacement services expenses, before the application of any percentage (emphasis added) limitation incurred by or on behalf of each person to whom the deductible applies”. This language is in accord with the idea that the deductible must be applied before any reduction whether contractual or statutory is applied.
It was raised by way of argument that the affidavit of Traci Postell is based solely on “the best of her knowledge and belief” and is thus legally insufficient to meet the requirements of Rule 1.150(e). The body of the affidavit indicates that the affiant has personal knowledge of the facts and circumstances surrounding the services because she is the owner of Plaintiff’s company and the custodian of business records. She states she is familiar with the customary charges in the community for the services rendered. The Court finds that the affiant sets forth sufficient facts in the body of the affidavit to show that she is competent to testify to the matter stated therein.
Accordingly, the Court grants Plaintiff’s Motion for Summary Judgment as it pertains to the application of the deductible and the reasonableness to the Plaintiff’s charges. Based upon Traci Postell affidavit and there being no evidence in opposition, the Court finds that there is no genuine issue of material fact as to the reasonableness of the charges and, as such, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Summary Judgment is GRANTED and Defendant’s Motion for Summary Judgment is DENIED.
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