21 Fla. L. Weekly Supp. 350b

Online Reference: FLWSUPP 21041STInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy that clearly subjects payments to any limitations in PIP statute, including all fee schedules, unambiguously elects to limit reimbursement to permissive statutory fee schedule — No merit to argument that insurer is required to incorporate statutory language or specific fee schedules into policy to effectuate election to apply fee schedule limitations

1ST OPEN MRI, Plaintiff(s), vs. ALLSTATE, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County. Case Nos. 12 16781 SP 05, 12 16783 SP 05, 12 16784 SP 05, 12 16785 SP 05, 12 17011 SP 05, 12 17012 SP 05, 12 17241 SP 05, 12 17532 SP 05, 12 17985 SP 05, Section 06. December 27, 2013. Honorable Gladys Perez, Judge. Counsel: Gladys A. Cardenas, for Plaintiff. Douglas G. Brehm, for Defendant.

OMNIBUS ORDER GRANTING ALLSTATE’SMOTIONS FOR SUMMARY JUDGMENT AND DENYINGPLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT

This omnibus order shall be entered in the above referenced cases. The parties and issues for this Court’s determination are the same. By agreement of the parties, the Court, on September 24, 2013, heard arguments on the parties’ Cross Motions for Summary Judgment in the above nine cases, which were consolidated for purposes of the hearing and this Order. The Court, having heard argument of the counsel, read applicable law, conducted independent research, and being otherwise duly advised in the matter, GRANTS Allstate’s Motion for Summary Judgment and DENIES Plaintiff’s Motion for Partial Summary Judgment in each of these cases.Findings of Fact

The parties have filed cross motions for summary judgment and agree that there are no genuine issues of material fact. Accordingly, the issue sub judice is purely one of law. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a] (“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.”).

The parties are further in agreement that the medical services at issue in these cases were reasonable, related, and necessary and otherwise covered under Allstate’s policy. Allstate reimbursed all invoices received from Plaintiff relating to these claims pursuant to the Medicare Part B Participating Physicians Fee Schedule.

Plaintiff challenges Allstate’s ability to limit reimbursements for medical services covered under the Personal Injury Protection (“PIP”) portion of Allstate’s policy of automobile insurance. The crux of Plaintiff’s argument is that Allstate’s policy language is insufficient to limit reimbursements by applying the permissive Medicare fee schedule. Allstate contends that its policy specifically and expressly notifies its policyholder that Allstate has elected to apply the fee schedule limitations to PIP reimbursements that are authorized under the No-Fault Statute. For the reasons set forth below, this Court agrees that Allstate clearly and unambiguously elected to apply the reimbursement limitations permitted under section 627.736(5)(a)(2), Florida Statutes.Conclusions of Law

These cases require the Court’s interpretation of policy language that was amended as a result of the Florida Supreme Court’s decision in GEICO General Insurance Company v. Virtual Imaging Services, 2013 WL 3332385 (Fla. No. SC12-905, July 3, 2013) [38 Fla. L. Weekly S517a]. In GEICO, the Florida Supreme Court held that an insurer was required to give notice to its insured by electing the permissive Medicare fee schedules in its policy before taking advantage of the Medicare fee schedule methodology to limit reimbursements. Plaintiff contends that Allstate’s policy language does not constitute a valid election because the reimbursement limitation language in Allstate’s policy is not sufficiently clear and unambiguous.

The relevant portion of Allstate’s policy provides:

In accordance with the Florida Motor Vehicle No-Fault Law, Allstate will pay to or on behalf of the injured person the following benefits. . .

1. Medical Expenses.

Eighty Percent of reasonable expenses for medically necessary medical, surgical, X-ray, dental and rehabilitative services. . .

. . . .

Any amounts payable under this coverage shall be subject to any and all limitations authorized by Fla. Stat. § 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.

Allstate’s policy language clearly subjects payments to any limitations in the PIP statute, including all fee schedules. Plaintiff has not set forth any other interpretation of the policy language. The word “shall” “[a]s used in statutes, contracts, or the like. . .is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term ‘shall’ is a word of command, and one which as always or which must be given a compulsory meaning; as denoting obligation. The word in the ordinary usage means “must” and is inconsistent with a concept of discretion.” Black’s Law Dictionary 1375 (6th ed. 1990) (emphasis added). Thus, when a claimant receives a service which is subject to a fee schedule that the Florida Legislature has included in section 627.736, Florida Statutes, Allstate has placed its insureds on notice that said service will be reimbursed at the fee schedule amount.¹ Allstate “shall” apply the statutory fee schedule limitation; it retained no discretion to do otherwise. Should a service not be subject to an applicable statutory fee schedule, then Allstate’s policy provides that it is to pay eighty percent of the reasonable expense for the medically necessary and related service.

Given the plain and ordinary meaning of Allstate’s policy language, this Court is unable to detect any ambiguity. Consequently, the Court rejects Plaintiff’s argument that Allstate’s language is unclear or ambiguous. The Court further rejects the contention that Allstate was required to incorporate the statutory language or specific fee schedules into its policy, as other insurers may have done. There is no statutory mandate that requires specific language to effectuate an election to apply fee schedule limitations. If the Florida Legislature wished to require insurance companies to incorporate specific language in insurance contracts, it would have made such a pronouncement and promulgated the specific language. Absent such pronouncement by the Legislature in the 2008 enactment of Florida’s No Fault statute, this Court declines any invitation to read said requirement into the statute.

Allstate’s policy affirmatively and expressly adopted the fee schedule limitations that the Legislature has authorized. It issued a policy that affirmatively informed its insureds that PIP benefits under that policy would be limited as authorized by the Florida No-Fault statute, including all fee schedules.

Accordingly, Allstate’s Motion for Summary Judgment in each case is GRANTED, and Plaintiff’s Motion for Summary Judgment in each case is DENIED. Final Judgment is entered in favor of Allstate in each case. Plaintiff shall take nothing by this action, and Defendant shall go hence without day.

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¹Although not a deciding factor for this Court, but of important note, is the fact that the Florida Supreme Court approved GEICO’s amended policy language in Virtual Imaging. GEICO’s policy language was less clear than Allstate’s, providing that it “may” reduce payments.

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