21 Fla. L. Weekly Supp. 336a
Online Reference: FLWSUPP 2104NEWLInsurance — Personal injury protection — Coverage — Medical expenses — Reference in policy to amounts payable being subject to any and all limitations authorized by section 627.736 or any other provisions of No-Fault Law, including fee schedules, does not clearly and unambiguously elect to limit reimbursement pursuant to Medicare Part B fee schedule — No merit to argument that policy may be construed to pay lesser coverage because doing so would benefit insured — Policies are construed according to plain meaning with ambiguities construed against insurer
CENTRAL FLORIDA MEDICAL & CHIROPRACTIC CENTER, INC. a/a/o Junior Newland, Plaintiff, vs. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2013-31357 COCI, Division 82. November 7, 2013. Christopher Kelly, Judge. Counsel: Kimberly Simoes, Deland, for Plaintiff. Anthony Parrino, St. Petersburg, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY DIPOSTION AND DENYINGDEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on October 1, 2013 for consideration on Plaintiff’s Motion for Summary Disposition and Defendant’s Motion for Summary Judgment and after reviewing the court file, hearing argument of counsel and being fully apprised in the premises, finds as follows:FINDINGS OF FACT
The parties entered into a Joint Stipulation of Facts and Exhibits and the Court hereby adopts those facts as follows:
1. Defendant, Allstate Fire and Casualty Insurance Company (“Allstate”), issued a policy of automobile insurance numbered [Editor’s Note: Number Omitted], which provided Personal Injury Protection (“PIP”) benefits to Junior Newland.
2. On or about 08/23/2012, and while said insurance policy was in full force and effect, Junior Newland was involved in a motor vehicle accident in which he sustained injuries that were covered under the PIP benefits portion of the referenced policy.
3. From 11/28/2012 to 1/23/2013, Plaintiff, rendered medical treatment to Junior Newland. It is undisputed that the medical services provided by Plaintiff on 11/28/2012 to 1/23/2013 and at issue in this lawsuit were reasonable, medically necessary and related to the subject accident and were covered by Allstate.
4. Plaintiff brings this action to recover reimbursement for the medical services provided on 11/28/2012 to 1/23/2013 by Plaintiff to Junior Newland pursuant to a valid assignment of benefits under the subject policy to Plaintiff.
5. Plaintiff timely submitted its bills for services rendered on 11/28/2012 to 1/23/2013 to Junior Newland to Defendant. Said bills were properly completed in compliance with §627.736, Florida Statutes. The invoice totaled $2,866.00.
6. Allstate’s reimbursements for the invoice for services rendered on 11/28/2012 to 1/23/2013 totaled $2,124.58.
7. Plaintiff filed suit on or about 4/15/2013.
8. The parties agree that Allstate’s reimbursements were made pursuant to the limitations set forth in §627.736(5)(a)2., Florida Statutes, and Allstate’s reimbursements were based upon the language of §627.736(5)(a)2., Florida Statutes, and the following language in the policy: “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.”
9. The parties agree that the sole legal issue to be resolved on summary judgment in this case is whether Allstate may properly limit reimbursement of the bills for services at issue pursuant to the schedule of maximum charges described in §627.736(5)(a)2.a. through f., Florida Statutes.
10. For purposes of this litigation, Defendant is not contesting and stipulates not to contest whether Plaintiff’s charges for the services rendered to Junior Newland for the dates of service at issue (11/28/2012 to 1/23/2013) were reasonable, medically necessary and related to the subject accident and covered by Allstate.
ANALYSIS
The parties have agreed that the sole legal issue to be resolved by the Court is whether, under the language set forth in the subject policy, Defendant may limit reimbursement of the bills for service at issue pursuant to the schedule of maximum charges described in §627.736(5)(a)2.a-f, Florida Statutes.The Policy
The subject policy provisions under consideration, in relevant part, are as follows:
Part III, Personal Injury Protection Coverage:
In accordance with the Florida Motor Vehicle No-Fault Law Allstate will pay . . .
1. Medical Expenses
Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services.
Limitation of Liability:
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.
Plaintiff’s Argument
Plaintiff contends that the language contained in Mr. Newland’s policy is ambiguous and is insufficient to invoke the right to limit reimbursement to 200% of Medicare Part B. Plaintiff further asserts that Allstate’s policy wholly fails to meet the requirements delineated by the Fourth District in Kingsway Amigo Ins. Co. v. Ocean Health. Inc., 63 So. 3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a] as approved of by the Florida Supreme Court in Geico Indem. Co. v. Virtual Imaging Serv. Inc., 2013 WL 333385, 38 Fla. L. Weekly S517a (Fla. 2013 (“GEICO 2013”).
Based on this policy language, Plaintiff contended that Allstate attempted to create a hybrid payment methodology through its agreement to pay “Eighty percent of all reasonable expenses’ in one portion of the policy and its separate statement that reimbursement is “subject to any and all limitations” or “all fee schedules.” Plaintiff argued that because Allstate did not clearly and unambiguously select one of the two possible payment methodologies, Allstate was required to pay 80% of the reasonable charges billed. Plaintiff points to the Florida Supreme Court’s decision in GEICO 2013 to support the proposition that a PIP insurer desiring to use the Medicare fee schedules to reimburse PIP medical benefits must clearly and unambiguously state that election in the policy, and that merely referring to, or incorporating, the “limitations” found in the Florida No-Fault Law is not sufficient and that Allstate’s policy has failed to clearly and unambiguously limit reimbursement to the schedule of maximum charges described in §627.736(5)(a)2.a-f, Florida Statutes.Defendant’s Argument
Defendant also relies upon the Florida Supreme Court’s opinion in GEICO 2013 for the proposition that its policy provided adequate “notice” to its policyholder of its intent to limit payment of benefits to the fee schedules set forth in §627.736(5)(a)2.
Allstate contends that the Supreme Court in GEICO 2013 found GEICO’s subsequent policy amendment sufficient and that Allstate’s language is virtually identical and therefore sufficient “notice” of Allstate’s election to limit reimbursement to the schedule of maximum charges described in §627.736(5)(a)2.a-f, Florida Statutes.
Allstate also argues that the policy language is “clear and unambiguous” and that the policy expressly states that payment “shall” be limited by “all fee schedules.” According to Allstate, this satisfied its requirement of notice to its policyholders of its election to limit reimbursement pursuant to 627.736(5)(a)2.
Finally, Allstate argues that any ambiguity in its policy should be construed to find the limitations applicable because use of the fee schedules benefit the policyholder by preserving benefits.Reasoning and Opinion of the Court
In GEICO 2013, the Supreme Court found that Florida legislature established two separate and distinct methodologies for calculating reasonable medical expenses for purposes of reimbursement. The first methodology is found at 627.736(5)(a)1. which provides:
(5) Charges for treatment of injured persons. —
(a) 1. Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount. . . . With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.
The second methodology is found at 627.736(5)(a)2.f. and provides:
2. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
f. For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B.
This Court rejects Allstate’s suggestion that case in GEICO 2013, the Florida Supreme Court tacitly approved of the policy language, at issue in this case. Allstate’s argument relies upon the Florida Supreme Court’s acknowledgement that “the GEICO policy has since been amended to include an election of the Medicare fee schedules as the method of calculating reimbursements. . . ” GEICO 2013, 2013 WL 3332385 at *1. In context, the Supreme Court’s acknowledgement of GEICO’s amended policy was for the limited purpose of establishing the time frame in which its holding was applicable. The amended policy language was not at issue in GEICO 2013, and the actual text of the amended policy was not set forth in the opinion such that it would permit any type of meaningful analysis or comparison. Finally, to conclude the Supreme Court approved of the amended policy language is inconsistent with the requirements of GEICO 2013, as further set forth herein.
In GEICO 2013, the Supreme Court’s found that “notice” is required to elect the limitation on reimbursement pursuant to §627.736(5)(a)2.a. through f., Florida Statutes. The question that must then be answered is what constitutes sufficient notice of said election.
The answer to that question comes from the Supreme Court’s adoption of the reasoning in Kingsway Amigo Insurance Company v. Ocean Health, Inc., 63 So.3d 63 (Fla. 4th DCA 2011). [36 Fla. L. Weekly D1062a] Specifically, GEICO 2013 in quoting Kingsway requires that:
“when the plain language of the PIP statute affords insurers two different mechanisms for calculating reimbursements, the insurer must clearly and unambiguously elect the permissive payment methodology in order to rely on it.” (emphasis added)
This Court finds that Allstate’s general language contained within the limitation of liability paragraph does not clearly and unambiguously elect the Medicare fee schedules to limit reimbursement. Not only does Allstate’s policy fail to specify that Allstate will pay 80% of 200% of the Medicare Part B fee schedule the policy is devoid of any reference whatsoever of its intent to limit reimbursement under §627.736(5)(a)(2)(a)-(f), Florida Statute.
If Defendant’s intent was to limit its liability to something other than 80% of reasonable medical expenses, it must do so clearly and unambiguously, and that requires something more than simply referencing “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,” to satisfy the mandate set forth in Kingsway, as approved of in GEICO 2013.
Finally, this Court rejects Allstate’s argument that the policy may be construed to pay the lesser coverage because doing so would greatly benefit the insured. Insurance policies are construed according to their plain meaning, with any ambiguities construed against the insurer. State Farm Mutual Auto. Ins. Co. v. Menendez, 70 So.3d 566, 570 (Fla. 2011) [36 Fla. L. Weekly S469a].
As the parties have stipulated to all remaining issues, is ORDERED and ADJUDGED that:
A. Plaintiff’s Motion for Summary Disposition is GRANTED;
B. Defendant’s Motion for Summary Judgment is DENIED;
C. Defendant’s Request for Certification is DENIED;
D. Final Judgment is hereby granted in favor of the Plaintiff, CENTRAL FLORIDA MEDICAL & CHIROPRACTIC CENTER, INC., a/a/o Junior Newland, wherein Plaintiff shall recover from the Defendant, ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, the amount of $168.22 for which sum let execution issue with post judgment interest of 4.75 per annum pursuant to Fla. Stat. 55.03; and
E. The Court reserves jurisdiction to determine Plaintiff’s entitlement to attorney fees and costs pursuant to F.S. 627.428 and F.S. 627.736.
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