21 Fla. L. Weekly Supp. 627a
Online Reference: FLWSUPP 2107MONDInsurance — Personal injury protection — Coverage — Medical expenses — Policy that clearly and unambiguously subjects payments to all fee schedules authorized by PIP statute unambiguously elects to limit reimbursement to permissive statutory fee schedule
ALLSTATE PROPERTY AND CASUALTY INS. CO. and ALLSTATE FIRE AND CASUALTY INS. CO., Appellants, vs. ROYAL DIAGNOSTIC CENTER INC. a/a/o Dania Mondy, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 13-073 AP, Consolidated with: 13-074 AP; 13-075 AP; 13-076 AP; 13-197 AP. April 3, 2014. An appeal from the County Court for Miami-Dade County, Florida, Judge Don S. Cohn. Counsel: Douglas G. Brehm, Suzanne Youmans, Shutts & Bowen LLP, Miami; and Peter J. Valeta, Meckler Bulger Tilson Marick & Pearson LLP, Chicago, IL, for Appellants. Mark J. Feldman and Michael Feldman, Miami, for Appellee.
(Before SMITH, LOBREE, and VERDE, JJ.)
(SMITH, J.) This appeal concerns a de novo application of the law to stipulated facts. Four other cases have been consolidated with this one, based upon identical stipulated facts and identical judgments below. The trial court, in each consolidated case, ruled against Allstate and determined that it could not utilize the fee schedule reimbursement limitations authorized by Florida Statute section 627.736(5)(a)(2)(f) in calculating the amount that it would pay to the Appellee as a reasonable expense for medical care.
Subsequent to the trial court’s ruling in the instant case, the Florida Supreme Court decided GEICO General Ins. Co. v. Virtual Imaging Services, Inc., 2013 WL 3332385 (Fla. 2013) [38 Fla. L. Weekly S517a] (“Virtual Imaging”). In Virtual Imaging, the Florida Supreme Court found that in order to exercise its option to utilize the fee schedules set forth in section 627.736(5)(a)2, “the insurer must provide notice in the policy of its election to use the fee schedules.” Id. at *10. The notice must be clear and unambiguous. Id. at *9.
In the instant case, the policy contains the following relevant language:
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.
Thus, the issue is whether this language clearly and unambiguously notifies the insured of Allstate’s intent to take advantage of the fee schedule reimbursement limitations authorized by 627.736(5)(a)(2)(f).
Of particular usefulness in analyzing this issue is that in Virtual Imaging, the Florida Supreme Court noted in dicta that “the GEICO policy has . . . been amended to include an election of the Medicare fee schedules as the method of calculating reimbursements,” thereby apparently indicating that the amended GIECO policy language provides sufficient notice to its insureds that GEICO elected to limit reimbursements under the fee schedules. The amended GEICO policy provided that GIECO would “pay in accordance with the Florida Motor Vehicle No Fault Law . . . and where applicable in accordance with all fee schedules contained in the Florida Motor Vehicle No Fault Law . . .”
The amended GEICO policy language is very similar to Allstate’s policy language in the instant case. Both policies reference the Florida Motor Vehicle No Fault Law in general and specifically reference “all fee schedules.” The amended GEICO language states that payments will be made in accordance with all fee schedules, and the Allstate language from the instant case states that amounts payable under the policy shall be subject to limitations authorized by all fee schedules. Since the Florida Supreme Court indicated that the amended GIECO policy language provides sufficient notice to its insureds that GEICO elected to limit reimbursements under the fee schedules, it would seem that the Allstate policy language would also provide sufficient notice. Because the Florida Supreme Court had not decided Virtual Imaging at the time that the trial court entered its ruling, the trial court did not have the advantage of being able to make this comparison. We are in a better position, and having read the Florida Supreme Court’s approval of the amended GEICO policy, we find such approval very persuasive as it relates to Allstate’s policy language.1
Indeed, it is our view that Allstate’s policy language clearly and unambiguously subjects payments to all fee schedules authorized by the PIP statute. In fact, it states that payments“shall be subject to” the fee schedules. (Emphasis added.) This leaves no room for ambiguity. As such, we find that the language in Allstate’s insurance policy adequately notifies the insured of Allstate’s intent to take advantage of the fee schedule reimbursement limitations authorized by 627.736(5)(a)(2)(f), and therefore, Allstate was legally allowed utilize the fee schedule reimbursement limitations authorized by Florida Statute section 627.736(5)(a)(2)(f) in calculating the amount that it would pay to the Appellee as a reasonable expense for medical care.
Accordingly, we REVERSE and REMAND, with instructions that the trial court enter an order consistent with this opinion. (LOBREE, and VERDE, JJ., concur.)
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1We also have the advantage of having seen the opinion of the Sixth Judicial Circuit, in Allstate Fire and Casualty Ins. Co. v. Orthopedic Specialists, No. 13-000003AP-88B (Fla. 6th Cir. Ct. December 10, 2013) [21 Fla. L. Weekly Supp. 470a], which persuasively found that the same policy language of Allstate clearly and unambiguously elected the permissive fee schedule payment methodology, and numerous county court cases which have addressed the language, including 1st Open MRI v. Allstate, No. 12-16781 SP 05 (Fla. 11th Cir. Cty. Ct. December 30, 2013) [21 Fla. L. Weekly Supp. 350b], which we find particularly persuasive.
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