21 Fla. L. Weekly Supp. 195b
Online Reference: FLWSUPP 2102MARPInsurance — Personal injury protection — Coverage — Medical expenses — Policy which provides that insurer will pay 80% of reasonable expenses but limits payment to lesser of amount provided by any fee schedule whether mandatory or permissive as contained in Florida Motor Vehicle No-Fault Law and also provides that insurer may use independent sources of information to determine if medical expenses are reasonable does not unambiguously elect to pay benefits pursuant to section 627.736(5)(a)2-5
BRUCE M. GELCH, D.C., P.A., as assignee of Jacob Marple, Plaintiff, vs. 21ST CENTURY CENTENNIAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 13-001123 CONO 73. October 22, 2013. John D. Fry, Judge. Counsel: Cris Evan Boyar, Boyar and Freeman, P.A., Coral Springs, for Plaintiff. Joshua Meadow, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT
THIS CAUSE having come to be heard before the Court on hearing on October 22, 2013 on the Plaintiff’s motion for Summary Judgment and, having reviewed the motion and the policy of insurance; the pleadings, having heard argument, the stipulations, reviewed the relevant legal authorities, and been sufficiently advised in the premises, the Court finds as follows:
The Plaintiff’s motion is hereby granted. The court relies on and cites to GEICO General Insurance Co. v. Virtual, 38 Fla. L. Weekly S517a (Fla. 2013); Kingsway v. Ocean Health, 36 Fla. L. Weekly D1062a (Fla. 4th DCA 2011), Hallandale Open v. Mercury, 12-01821 CONO 70 (Fla. Broward County Court 2012) [20 Fla. L. Weekly Supp. 676a]; Rivero Diagnostic v. Mercury, 12-17077 SP 25 (Fla. Dade County Court 2013) [20 Fla. L. Weekly Supp. 596b]; DPI v. Allstate, 20 Fla. L. Weekly Supp. 161a (Fla. Broward County Court 2012) and DPI v. Allstate, 12-1697 COCE 53 (Fla Broward County Court 2012) to support this order.
The court finds the Defendant’s policy does not cap the PIP benefits to 200% of Medicare specifically, clearly and unambiguously. The Defendant’s policy states in one part that it will pay 80% of reasonable expenses but limits that to the lesser of the amount provided by any fee schedule or schedule or payment, whether mandatory or permissive, as contained in the Florida Motor Vehicle No-Fault Law as may be amended from time to time, which was in effect on the date that this policy was issued, for like products, services or accommodations. Then the policy states it has the right to review the medical expenses to determine if they are reasonable and the Defendant may use independent sources of information selected by the Defendant to determine if the medical expenses is reasonable and those sources may include computer databases or published sources of medical expenses.
The court will interpret the policy in accordance with the plain meaning of the language used so as to give effect to the policy as it is written. GEICO General Insurance Co. v. Virtual, 38 Fla. L. Weekly S517a (Fla. 2013). In order for an exclusion or limitation in an insurance policy to be enforceable, the insurer must clearly and unambigously draft a policy provision to achieve that result. Id.
The court finds the Defendant’s policy does not make a clear and unambiguous election to pay 200% of medicare as a matter of law. The Defendant’s policy does not make it clear which fee schedule it will utilize and this is further demonstrated by the Defendant’s policy which states it may use independent sources to determine if a medical expense is reasonable. If the Defendant was going to pay based on the lesser of the amount provided by any fee schedule or schedule or payment, whether mandatory or permissive, as contained in the Florida Motor Vehicle No-Fault Law as may be amended from time to time, which was in effect on the date that this policy was issued, for like products, services or accommodations then the Defendant would not need to use independent sources to determine if a medical expense is reasonable.
Had the Defendant’s policy clearly and unambiguously incorporated F.S. §627.736(5)(a)(2-5) the Defendant would have had safe harbor to pay medical bills based on F.S. §627.736(5)(a)(2-5).
The court finds the Defendant’s policy does not fairly and reasonably place the insureds on notice of its intention to cap benefits pursuant to F.S. §627.736(5)(a)(2-5). Had the Defendant’s policy made this clear election then the Defendant would be permitted to deny certain modalities not compensable under either medicare or workers compensation and it would prevent the provider from balance billing the patients. Since the Defendant’s policy did not make this clear election the Defendant’s insureds and their medical providers would not know what services would be payable and whether the provider would be precluded from balance billing its insureds.
The court finds the Defendant’s policy providers greater coverage than argued by the Defendant.
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