21 Fla. L. Weekly Supp. 840a
Online Reference: FLWSUPP 2108FLORInsurance — Personal injury protection — Coverage — Emergency services — Deductible — Because insurer is mandated by statute to reserve $5,000 for emergency medical service providers, insurer should not have applied claim filed by plaintiff provider within that classification to deductible — Exhaustion of benefits is not defense to claim for emergency medical service provider’s bill applied to deductible
EMERGENCY PHYSICIANS OF CENTRAL FLORIDA, LLP, as assignee of Andrea Flores, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 2011-SC-002284. April 29, 2014. Jerri L. Collins, Judge. Counsel: Mark A. Cederberg, Bradford Cederberg P.A., Orlando, for Plaintiff. Neil Andrews, Orlando, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY FINAL JUDGMENT
THIS MATTER having come before this Honorable Court on April 14, 2014 on Plaintiff’s Motion for Final Summary Judgment and Defendant’s Motion for Summary Final Judgment and this Honorable Court having heard arguments of counsel, reviewed the evidence, relevant Florida statutes and case law presented and being otherwise fully advised in the premises, makes the following findings:Factual Background
This case presents with facts that are not in dispute. The Defendant, Progressive Select Insurance Company (“Progressive”) issued a policy of insurance in favor of its assignor, Andrea Flores, which provided $10,000.00 in Personal Injury Protection Benefits with a $1,000.00 deductible. Ms. Flores was involved in a motor vehicle accident on March 6, 2011 in which she sought treatment from various health care providers including the Plaintiff in this matter, Emergency Physicians of Central Florida (“EPCF”). EPCF is a group of physicians licensed under chapter 458 and/or chapter 459 who provide emergency services and care as defined in Florida Statute 395.002(9) as referenced in Florida Statute 627.736(4)(c).
Upon being placed on notice of this accident on March 8, 2011, Progressive opened a PIP claim and began processing bills. The first bill received by Progressive was from Medical Center Radiology Group on March 31, 2011 in the amount of $67.00. Progressive applied this bill in full to the insured’s $1,000.00 deductible. The next bill received by Progressive was from EPCF on April 1, 2011, for emergency services and care provided to Ms. Flores, in the amount of $671.00. This bill was received by Progressive within 30 days’ notice of the loss. Progressive allowed the full amount of EPCF’s bill and applied EPCF’s full charge to the insured’s deductible. The next bill received by Progressive was from Orlando Regional Healthcare System on April 4, 2011 in the amount of $1762.00. Progressive reduced the charge to 75%, applied the remainder of the charge to the deductible and made a partial payment to Orlando Regional Healthcare System. The next two (2) bills received by Progressive were from Central Florida Injury and Rehabilitation, Inc. on April 4, 2011 and April 7, 2011 in the amounts of $710.00 and $1,735.00, respectively. Progressive applied the fee schedules to these bills and processed them accordingly. The parties disagree whether Progressive’s application of EPCF’s bill to the deductible was proper. Progressive contends that it was proper, based on the fact that EPCF’s bill was the second bill received and some of the deductible still remained. EPCF contends that it was not proper on the basis that EPCF is a protected provider under Fla. Stat. 627.736(4)(c) and its bills are to be paid out of the $5000.00 reserve of PIP benefits created for 4(c) providers, once the deductible is otherwise satisfied by non-protected providers’ bills.
Thereafter, Progressive received, processed and paid additional bills from non-protected providers and exhausted benefits on or about July 17, 2011. Progressive contends that based on the authority of Simon v. Progressive American Ins. Co., 904 So.2d 449 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b], Progressive American Ins. Co. v. Stand-Up MRI of Orlando, 990 So.2d 3 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a] and Northwoods Sports Medicine and Physical Rehabilitation, Inc. and Wellness Associates of Florida, Inc. v. State Farm Mutual Automobile Ins. Co. and USAA Casualty Ins. Co., Nos. 4D11-1556 and 4D11-3796 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D491a], once benefits are exhausted, EPCF’s claim is extinguished, as Progressive has satisfied its contractual obligations to its insured. EPCF contends that Progressive failed to follow the clear language contained in Fla, Stat. 627.736(4)(c) by failing to reserve for payment the timely submitted bill of a provider of emergency services and care. EPCF contends that had Progressive followed the clear mandate of Fla. Stat. 627.736(4)(c), its bill could have, and should have, been paid in full and that subsequent exhaustion of benefits is not a defense to EPCF’s (4)(c) claim. The Court agrees with EPCF and grants Plaintiff’s Motion for Final Summary Judgment and denies Defendant’s Motion for Summary Final Judgment.Conclusions of Law and Ruling
The issues presented are whether Progressive was required to reserve EPCF’s bill for payment (versus application of the bill to the deductible) pursuant to Fla. Stat. 627.736(4)(c) and whether exhaustion of benefits is a defense to a claim by a provider of emergency services and care who timely submitted its bill for payment, and otherwise complied with the requirements set forth in Fla. Stat. 627.736(4)(c) which creates a mandatory reserve for payment of PIP benefits, but had its bill applied to the PIP deductible. The Court finds that, pursuant to Fla. Stat. 627.736(4)(c), EPCF’s bill should have been paid from Ms. Flores’ PIP benefits under the $5,000 reserve (and therefore should not have been applied to the deductible) and that exhaustion of benefits is not a defense to such claim under this scenario.
On January 1, 2008, the Florida legislature enacted a revised PIP statute which created a mandatory set-aside of $5,000.00 of the $10,000.00 in PIP benefits, for the payment of bills submitted by a special class of provider within a particular time frame. Florida Statute §627.736(4)(c) states:
Upon receiving notice of an accident that is potentially covered by personal injury protection benefits, the insurer must reserve $5,000 of personal injury protection benefits for payment to physicians licensed under chapter 458 or chapter 459 or dentists licensed under chapter 466 who provide emergency services and care, as defined in s. 395.002(9), or who provide hospital inpatient care. The amount required to be held in reserve may be used only to pay claims from such physicians or dentists until 30 days after the date the insurer receives notice of the accident. After the 30-day period, any amount of the reserve for which the insurer has not received notice of a claim from a physician or dentist who provided emergency services and care or who provided hospital inpatient care may then be used by the insurer to pay other claims. The time periods specified in paragraph (b) for required payment of personal injury protection benefits shall be tolled for the period of time that an insurer is required by this paragraph to hold payment of a claim that is not from a physician or dentist who provided emergency services and care or who provided hospital inpatient care to the extent that the personal injury protection benefits not held in reserve are insufficient to pay the claim. This paragraph does not require an insurer to establish a claim reserve for insurance accounting purposes. (Emphasis added.)
Fla. Stat. §627.736(4)(c) represents a departure from, and an exception to, the common law of the State governing exhaustion of benefits. That common law is outlined in cases such as Progressive American Ins. Co. v. Stand-Up MRI of Orlando, 990 So.2d 3 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a] and the case upon which it is at least partially based, Simon v. Progressive Express Ins. Co., 904 So.2d 449 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b]. The Court is aware of, and has taken into consideration, the Progressive American Ins. Co. v. Stand-Up MRI of Orlando decision, the Simon v. Progressive Express Ins. Co. decision and the Northwoods/Wellness decision as they relate to exhaustion. Notably, these decisions neither addressed the 2008 statute (i.e. Section (4)(c)), nor involved a statutorily protected class of provider. Accordingly, because these decisions either pre-date the 2008 statutory revision adding Section (4)(c), do not involve a statutorily protected class of provider and/or do not involve the application of a medical provider’s bill in full to a deductible (versus a reduction or a denial of a bill), they have no applicability to the mandatory reserve requirement now set forth in Section (4)(c). Implicit is the acknowledgment that the 2008 version of Fla. Stat. §627.736 (including subsection (4)(c)) applies to the instant matter and the question presented is how to apply subsection (4)(c) of the PIP Statute. Up until the effective date of subsection (4)(c), insurers had no prior obligation to reserve benefits for any class of medical provider under the PIP Statute. Simon, supra. Now, subsection (4)(c) requires reservation of $5,000 of PIP benefits for the payment of a class of providers into which Plaintiff indisputably fits. Id. Defendant was required to reserve benefits for the payment of Plaintiff’s claim by virtue of Plaintiff’s status as a provider for whom the subsection requires reservation of benefits.
In reaching its decision in this case, the Court makes specific note of the fact that Fla. Stat. §627.739 was amended in 2003, followed by amendment in 2008 to Fla. Stat. §627.736 to add subsection (4)(c). This Court believes that the subsequent amendment of Fla. Stat. §627.736(4)(c) demonstrates the Legislature’s intent to provide an additional level of protection for emergency care providers, thus ensuring payment of their invoices/bills. The Plaintiff complied with the conditions of subsection (4)(c), thereby qualifying as a member of the protected class, and yet its bill went unpaid because it was applied toward the deductible. It is illogical to suggest the Florida Legislature created a special class, provided for a special fund to be set aside and reserved for payment of PIP benefits to that special class, set a specific time frame during which the special class member is to submit qualifying invoices/bills then penalize the special class member for the timely submission of its claim by allowing it to be applied to the deductible.
In conclusion, this Court agrees with EPCF and grants Plaintiff’s Motion for Final Summary Judgment and denies Defendant’s Motion for Summary Final Judgment. By so ruling, this Court finds that PIP insurers are required to reserve $5,000 of the PIP benefits exclusively for payment to the protected class defined in Fla. Stat. §627.736(4)(c) and that the $5,000 reserve may be used only to pay the claims of the protected class of providers who timely submit their claim(s), and may not apply the amount of such claim(s) towards any PIP deductible. The Court finds that the deductible must be satisfied by application of the invoices/bills submitted to the insurer by non-protected providers, and upon satisfaction of the deductible in such manner, then the protected provider is entitled to have its invoice/bill paid. The Court further finds that exhaustion of benefits is not a defense to the protected provider’s claim if the protected provider has complied with Section (4)(c)(timely submission of bill for emergency services and care) and the Defendant applied the protected provider’s invoice/bill to the PIP deductible.
Accordingly, it is ORDERED AND ADJUDGED that:
Plaintiff’s Motion for Final Summary Judgment is hereby GRANTED and Defendant’s Motion for Summary Final Judgment is hereby DENIED.
The Plaintiff is entitled to recover from Defendant $536.80 (80% of $671.00) plus accrued interest in the amount of $98.48 (6% from April 1, 2011) for a total of $635.28 for which let execution issue forthwith. Post judgment interest of 4.75% per annum shall be due on this judgment pursuant to Fla. Stat. §55.03. The Court also finds that Plaintiff is hereby entitled to reasonable attorneys’ fees and costs and reserves jurisdiction to determine the amount.
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