20 Fla. L. Weekly Supp. 586a
Online Reference: FLWSUPP 2006TERPInsurance — Personal injury protection — Coverage — Medical expenses — By using confusing language providing for payment of 80% of reasonable expenses while also referencing “other payment guidelines in No Fault Law,” “any schedule and limitations under federal or state law for medical expenses,” and “various sources of information” to determine if medical expense is “reasonable,” insurer failed to satisfy requirement that election to use permissive statutory fee schedule be made in manner so that insured and medical providers would be aware of it
OAKLAND PARK MRI, INC. (a/a/o Chad Terpstra), Plaintiff(s), vs. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-8283 COCE 53. February 21, 2013. Robert Lee, Judge. Counsel: Gary Marks, Marks and Fleischer, Ft. Lauderdale, for Plaintiff. Scott Dutton, Tampa, for Defendant.
FINAL SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF
THIS CAUSE having come before the Court on February 7, 2013 for hearing of Defendant’s Motion for Final Summary Judgment and Plaintiff’s Counter Motion for Final Summary Judgment, and the Court having considered the Motions, heard argument of counsel, reviewed the court file, relevant legal authorities, being apprised of the joint stipulation between the parties that permits a final judgment in favor of plaintiff upon the granting of Summary Judgment in plaintiff’s favor and being otherwise fully advised in the premises, the court finds as follows:
This case involves competing interpretations of a PIP insurance policy. The Plaintiff’s interpretation would result in Mercury having to pay more on the individual medical bill submitted, and of course Mercury’s would result in a finding that the lesser amount it paid complied with the policy.
Mercury’s FL U-85 5/2010 provides as follows, as pertains to personal injury protection (PIP) coverage:
“If you buy Personal Injury Protection from us, we will pay: 1. Medical Benefits. . . .up to our limits of liability, to or for an insured person who sustains bodily injury caused by an accident arising out of the ownership, maintenance or use of a motor vehicle.”
The policy defines the term “medical benefits” as follows: “ “Medical benefits” means 80% of all reasonable expensesallowed by the No Fault Law, subject to the applicable fee schedules and payment limitations, for medically necessary. . . . (emphasis in italicized bold letters)”
The policy further provides: “5. We will only pay for medical benefits:
a. For services and care that are lawfully provided, supervised, ordered, or prescribed by a health care provider or entity who or which is properly licensed and acting with the scope of that license as authorized by the No Fault Law and any related regulations pertaining to physicians and medical providers, and
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 schedule and limitations under federal or state law for medical expenses.
8. As 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:
a. Exams by doctors we select, at our expense, as often as we reasonably request;
b. Review of medical records and test results by persons and services selected by us;
c. Computer programs and databases for the analysis of medical treatment and expenses; and
d. Published sources of medical expense information”
Mercury argues that the only “fee schedule” and “payment limitations” applicable under the No Fault law is the 200% of Medicare Fee schedule, and it therefore unambiguously and clearly chose the 200% of Medicare Fee Schedule cap as its payment methodology.
The Plaintiff argues that Mercury failed to clearly and unambiguously include this methodology in its policy, as required by Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a], because it also included language relating to additional methods and sources of information on how it will determine “reasonable” expenses. Thus, Plaintiff argues that an insured or a provider has no way of clearly determining which, of the competing methodologies expressed, Defendant is choosing. The parties agreed that if Plaintiff is correct then Mercury would owe the plaintiff the additional amount that would equal 80% of the amount of Plaintiff’s charge.
Kingsway requires that the choice of methodology be done “in a manner so that the insured patient and health care providers would be aware of it.” Id. The Court finds that Mercury’s choice of confusing language referencing “other payment guidelines in the No Fault Law” and “any schedule and limitations under federal or state law for medical expenses” along with its later reference to “various sources of information” to determine if a medical expense is “reasonable” results in a finding that Mercury did not make its election “in a manner so that the insure patient and health care providers would be aware of it.”
This Court agrees that by including the language of both methods for reimbursement under §§627.736(5)(a)1., Fla. Stat. (2008) and 627.736(5)(a)2.., Fla. Stat. (2008) in its policy, the insurer has created an ambiguity which must be resolved in favor of the insured. American Independent Ins. Co. vs. Gables Ins. Recovery Inc., 19 Fla. L. Weekly Supp. 14b (11th Cir. Ct. 2011) (appellate capacity).
The Kingsway court recognized that, after the 2008 amendment to the PIP statute, an insurer has a right to choose between the two coverage methodologies: either paying the 80% of reasonable medical services, or the limitation of liability reflected by paying 80% of 200% of Medicare Part B Schedule. Kingsway, 63 So. 3d at 67:
“We agree with the trial court that these statutes are unambiguous and that their plain language allows an insurer to choose between the two different payment calculation methodology options. Significantly, subsection 627.736(5)(a)2 provides that the insurer “may limit reimbursement,” language that indicates this option choice is not mandatory”; subsection 627.736(5)(a)5 states, “[i]f an insurer limits payment as authorized by subparagraph 2” language that anticipates an insurer will make a choice.” Id. (emphasis added).
If an insurer chooses the 200% of Medicare payment methodology in Fla. Stat. 627.736(5)(a)(2), it cannot also choose to pay using the “reasonable amount” methodology in Fla. Stat. 627.8736(5)(a)1. Including portions of each, as Mercury has done in its endorsement, creates confusion and ambiguity. The two payment methodologies are separate and distinct and an insurer must choose one or the other. If an insurer opts to use the Medicare payment methodology, then that is what it is obligated to pay. If instead, the insurer wants to argue that the reasonableness of a charge is something less than the 200% of Medicare fee schedule, then it cannot simultaneously limit its exposure while leaving its insured unprotected from the full balance of the provider’s bill.
Therefore, it is hereby
ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment is DENIED and Plaintiff’s Counter Motion for Summary Judgment is GRANTED.
It is further
ORDERED AND ADJUDGED that Plaintiff, OAKLAND PARK MR1 INC., is the prevailing party and shall recover from the Defendant, MERCURY INSURANCE COMPANY OF FLORIDA, the sum of $ 46.52 representing the claimed but unpaid personal injury protection benefits. Plaintiff, OAKLAND PARK MRI INC., shall further recover from the Defendant, MERCURY INSURANCE COMPANY OF FLORIDA, the sum of $6.21, representing statutory interest due an overdue payment of personal injury protection benefits for a total of 58.94.
This judgment shall bear interest at the rate of 4.75% per annum from February 8, 2013 through the date of tender for which sum let execution issue.
The court hereby reserves jurisdiction to enter a judgment taxing reasonable attorney’s fees and costs.
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