20 Fla. L. Weekly Supp. 451b
Online Reference: FLWSUPP 2004RINCInsurance — Personal injury protection — Coverage — Insurer cannot rely on permissive Medicare Part B fee schedule of section 627.736(5)(a)2.f. where insurer did not clearly and unambiguously adopt that payment methodology in its policy, and clear language in policy provides that insurer will pay 80% of reasonable expenses
ROBERTO RIVERA-MORALES, M.D., (A/A/O GLORIA CAROLINA RINCON), Plaintiff(s), vs. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-2244 SP 26 (04). December 20, 2012. Lourdes Simon, Judge. Counsel: Martin I Berger, for Plaintiff. Douglas Brehm, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT AND FINAL JUDGMENT
This cause came before the Court on November 6, 2012, on Plaintiff’s Motion for Summary Judgment. The Court, having reviewed the motions and entire Court file, heard argument of counsel, reviewed relevant legal authority, and been otherwise advised in the premises, makes the following findings of fact and conclusions of law:Findings of Facts
The material facts in this case are not in dispute. Gloria Carolina Rincon was involved in a motor vehicle accident on October 10, 2009, while in a vehicle insured by Allstate Property and Casualty Insurance Company, the Defendant. The policy in effect provided for personal injury protection (“PIP”) coverage under the Florida No Fault Statute. Ms. Rincon received services from Plaintiff, Roberto Rivera-Morales, M.D. Defendant issued payment to Plaintiff for his services at 80% of 200% of participating physicians fee schedule of Medicare Part B pursuant to Florida Statute §627.736(5)(a)(2)(f). The relation and medical necessity of the services at issue are not in dispute.Standard
Summary Judgment is proper if no genuine issue of material fact exists and if the moving party is entitled to a judgment as a matter of law. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]. “In reviewing a summary judgment, this Court must consider evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party.” Tropical Glass & Const. Co. v. Gitlin, 13 So. 3d 156, 158 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1163a](quoting Krol v. City of Orlando, 778 So. 2d 490, 492 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D577a]). “When the non-moving party has raised affirmative defenses, it is incumbent upon the moving party to disprove the affirmative defenses or establish their legal insufficiency.” Id. (citing Parker v. Dinsmore Co., 443 So. 2d 356 (Fla. 1st DCA 1983)(quoting Proprietors Ins. Co. v. Siegel, 410 So. 2d 993, 995 (Fla. 3d DCA 1982)).Conclusions of Law
The parties stipulate that this case presents a purely legal question for the Court’s determination; Namely, whether Allstate can rely on the permissive Medicare Part B Fee Schedule language expressed in Florida Statute §627.736(5)(a)(2)(f) without ever clearly and unambiguously adopting that payment methodology in its policy, and with clear language in its policy that Allstate will pay 80% of reasonable expenses? The Court agrees with Plaintiff and holds that Allstate cannot avail itself of the Medicare Part B fee schedule.
The Court in Kingsway Amigo Ins. Co. v. Ocean Health, Inc. a/a/o Belizaire Gomez recognized an insurance company’s right to choose between the two PIP reimbursement methodologies; 1) paying 80% of reasonable medical expenses or 2) paying 80% of 200% of the participating physicians Medicare Part B fee schedule. 63 So. 3d 63 (Fla 4th DCA 2011). The Court also expressed that if an insurer wanted to take advantage of the Medicare Part B fee schedule pursuant to Florida Statute § 627.736(5)(a)(2)(f), the insurer must clearly and unambiguously select that payment methodology in its policy of insurance so that the insured patient and healthcare provider will be aware of it. See Kingsway Amigo Ins. Co., 63 So. 3d at 68 (Fla. 4th DCA 2011); see also Geico Indemnity Co. v. Virtual Imaging Services, Inc. 79 So. 3d 55 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a].
The Allstate policy at issue states under Personal Injury Protection Coverage that Allstate will pay “eighty percent of reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services.” On the following page, within the Limits of Liability paragraphs, the policy states, “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.” The Court finds that the general language contained within Allstate’s Limitation of Liability paragraphs does not clearly and unambiguously notify the insured patient and health care providers of Allstate’s intent to pay pursuant to Florida Statute § 627.736(5)(a)(2). Allstate’s policy fails to adopt the statutory language contained in §(5)(a)(2) and fails to specifically state that Allstate will pay 80% of 200% of the Medicare Part B fee schedule. Numerous insurance companies have unambiguously and clearly adopted the permissive fee schedule language in their policies as evidenced by Plaintiff’s Notice of Filing Insurance Policies.
Additionally, by Allstate expressly including in its policy that it would pay 80% of all reasonable expenses and simultaneously including language to limit its payment, an ambiguity is created within the policy. The Court in Virtual Imaging held that, “When two distinct payment amounts are possible under the statute, it is misleading to insist that there is only one calculation methodology being used.” See Virtual Imaging, 79 So. 3d at 57-58; see also American Independent Ins. Co. v. Gables Ins. Recovery, Inc. a/a/o Orlay Lima, 19 Fla. L. Weekly Supp. 14b (Fla. 11th Cir. App. Oct. 12, 2011). This ambiguity must be resolved in favor of the insured and for coverage. See Virtual Imaging, 79 So. 3d at 58.
The Court finds that Defendant’s policy language does not permit Allstate to limit reimbursement to 80% of 200% of the participating physicians Medicare Part B fee schedule pursuant to Florida Statute § 627.736(5)(a)(2)(f). Defendant was required to pay 80% of a reasonable charge pursuant to the terms of its policy and the statute. Plaintiff has filed the Affidavit of Roberto Rivera Morales, M.D. Dr. Rivera-Morales testifies that his charges were reasonable. Defendant has not filed anything is opposition. Therefore, summary judgment is granted in favor of Plaintiff as to reasonableness. Defendant is to pay 80% of the amount billed by Plaintiff for his services minus any previous payment made by Defendant. Summary judgment is also granted in favor of Plaintiff as to Defendant First Affirmative Defense regarding demand letter.
Accordingly, it is ORDERED and ADJUDGED, that Plaintiff’s Motion for Summary Judgment is hereby GRANTED.
In accordance with this Order Granting Plaintiff’s Motion for Summary Judgment, IT IS CONSIDERED, ORDERED, and ADJUDGED that Defendant, Allstate Property and Casualty Insurance Company, shall pay Plaintiff, Roberto Rivera Morales, M.D., the sum of $308.11 in benefits and $74.96 in interest for a total recovery of $383.07, that shall bear interest at the rate of 4.75% per a year, for which let execution issue. Additionally, this Court holds that Plaintiff, as the prevailing party to Count I of its Complaint is entitled to its reasonable attorney’s fees under Florida Statute § 627.428 and Florida Statute § 627.736(8) and costs pursuant to Fla. Stat. § 92.231 and Fla. Stat. § 57.041. This Court retains jurisdiction over this matter to determine the amount of attorney’s fees owed to the Plaintiff by the Defendant.
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