21 Fla. L. Weekly Supp. 798a

Online Reference: FLWSUPP 2108TASTInsurance — 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 — No merit to claim that provider has not met burden to prove that charge is reasonable where insurer’s motion for summary judgment was based solely on application of deductible, insurer did not challenge reasonableness of charge in explanation of benefits, and insurer’s utilization of permissive statutory fee schedule to pay charge establishes reasonableness of charge

FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, M.D., P.A., as assignee of Kerry Tastinger, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2012-SC-7488. March 26, 2014. Andrew L. Cameron, Judge. Counsel: Steven Dell, Bradford Cederberg, P.A., Orlando, for Plaintiff. Neil Andrews, Adams & Diaco, Orlando, for Defendant.

This order affirmed by circuit court on appeal; circuit court appellate order was quashed by district court of appeals. 41 Fla. L. Weekly D335b (Progressive Select Ins. Co. v. Emergency Physicians of Central Florida, 5D15-3718; 2-5-2016)

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 Defendant’s Motion for Summary Final Judgment and Plaintiff’s Motion for Final Summary Judgment and this Honorable Court having heard arguments of counsel and being otherwise fully advised in the premises, it is hereby,

ORDERED AND ADJUDGED that:

1. Plaintiff’s Motion for Final Summary Judgment is hereby GRANTED.

2. Defendant’s Motion for Summary Final Judgment is hereby DENIED.

I. UNDISPUTED FACTS:

Kerry Tastinger was involved in an automobile accident on May 13, 2012. At the time of the automobile accident Kerry Tastinger was insured by a personal injury protection policy issued by Progressive Select Insurance Company (“Defendant”) which was in full force and effect and provided $10,000 in PIP benefits with a $250 policy deductible. Kerry Tastinger (“insured”) presented to the emergency room department of Florida Hospital Medical Center on May 13, 2012. On May 13, 2012, the insured received emergency services and care as defined under Fla. Stat. 395.002(9) by the Plaintiff, Florida Emergency Physicians Kang and Associates, who are the physicians who render treatment in the emergency room of the hospital. Plaintiff submitted its medical bill for CPT code 99284 to the Defendant in the amount of $650.00. The bill was received by the Defendant on June 1, 2012. Defendant took no reductions to the charged amount and applied the first $250.00 of the bill to the policy deductible, then Defendant issued payment in the amount of $320.00 (i.e. 80% of the remaining balance.) Plaintiff provided Defendant with a pre-suit demand letter and ultimately filed suit for additional PIP benefits.

II. LEGAL ISSUES BEFORE THIS COURT:

(A) Was Defendant’s application of the Plaintiff’s bill in compliance with the No Fault Statutes, specifically Fla. Stat. 627.736(4)(c) and Fla. Stat. 627.739?

(B) Was Plaintiff’s Bill Reasonable, Related and Medically Necessary Treatment?

III. ANALYSIS/APPLICATION OF LAW:

(A) Defendant was obligated to honor the statutory reserve under §627.736(4)(c) and, therefore, improperly applied the Plaintiff’s bill to the policy deductible.

The Court’s opinion hinges on the plain and unambiguous language of Fla. Stat. §627.736(4)(c)(2012)¹. The Court finds the Legislature in 2008 created a mandatory reserve of $5,000 in PIP benefits for payment to physician providers of emergency services and care rendered in a hospital setting. This protection is only extended to such physician bills when the bills are received by the insurer within 30 days of the insurer receiving notice of the accident. Plaintiff in this matter unequivocally met all of these requirements and therefore falls under the protection of the statute.

When construing a statute, the polestar that guides a court is the legislature’s intent. Cricket Properties, LLC v. Nassau Pointe at Heritage Isles Homeowners, Association, Inc., 124 So. 3d 302 (2013) [38 Fla. L. Weekly D2013b] (citing Larimore v. State, 2 So. 3d 101, 106 (Fla. 2d 2008) [33 Fla. L. Weekly S948a]). To determine legislative intent, a court must first look to the plain language of the statute. Id. The Legislature in 2008 clearly intended to afford extra protection to physician providers of emergency services and care when it clearly carved out a specific reserve to be used only for the benefit of such providers. See generally, United Services Automobile Association v. Emergency Physicians of Central Florida, LLP a/a/o Barbara Maughan, 2012-AP-1 (Fla. 9th Jud. Cir. Circuit Appellate January 30, 2014) (affirmed trial court Emergency Physicians of Central Florida, LLP a/a/o Barbara Maughan v. United Services Automobile Association, 19 Fla. L. Weekly Supp. 746a (Fla. 9th Jud. Cir. Osceola Co. March 20, 2012). This Court finds no other logical reading of the plain language of the statute beyond Plaintiff’s argument. The statute requires a specific reservation of “personal injury protection benefits for payment”to qualified bills. Defendant’s position that Fla. Stat. §627.739 should control prior to Fla. Stat. 627.736(4)(c) would effectively render (4)(c) meaningless.

Under the statute, a typical medical provider must postmark its bill to be paid to an insurer within 35 days of the date of service or run the risk of the bill not being paid. Fla. Stat. 627.736(5)(c)1. Interestingly, emergency physician providers are excluded from this requirement under the statute. In fact, emergency services and care providers may submit their bills at any point for reimbursement and be placed in line for payment. When the Legislature created the (4)(c) reserve it placed a more strict time limit on emergency physician bills to be received by insurers. The time limit of 30 days from notice of the accident is the shortest period of time in the statute. If the emergency room physicians are attempting to comply with subsection (4)(c) then it is much more likely their bill will be the first, or one of the first, bills received by the Defendant. Under the Defendant’s theory this would make the ER physician bill much more likely to be applied to the deductible. This Court cannot believe that was the intent of the Legislature. Reading the statutes as Defendant suggests places the Plaintiff’s bill in a position of sheer luck and timing rather than the statutory intent of priority payment. To provide a specific and unique protection which then disappears based on compliance with the protection creates a situation where the provider is left to chance on whether its bill will be applied to a deductible rather than receive priority payment. This Court believes Plaintiff’s argument harmonizes both statutes and gives the Court the ability to apply each statute to the facts of this case.

Courts should interpret a statute so as to give effect to every provision therein and to harmonize all of its parts. Cricket Properties, LLC v. Nassau Pointe at Heritage Isles Homeowners, Association, Inc., 124 So. 3d 302 (2013) [38 Fla. L. Weekly D2013b] (citing Larimore v. State, 2 So. 3d 101, 106 (Fla. 2d 2008) [33 Fla. L. Weekly S948a]). Finally, a court must read related statutory provisions “together to achieve a consistent whole” and “ ‘give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.’ ” Id. (quoting Heart of Adoptions, Inc. v. J.A., 963 So. 2d 189, 199 (Fla. 2007) [32 Fla. L. Weekly S455a]). Defendant’s argument that Fla. Stat. 627.739(2)² should be given priority or more authority in the case at hand is misguided. Plaintiff’s argument and position is the only position which gives credence and authority to both statutes. This Court finds that Plaintiff’s bill is protected by the reserve carved out in (4)(c), but the benefits will only be paid once the deductible under §627.739 is satisfied by non-protected bills that are received by the insurer. In the instant matter, the insurer received both hospital and chiropractor bills neither of which qualified for the special protections under (4)(c). The charged amounts of these bills far exceeded the policy deductible and were in fact allowed and paid by the Defendant in this matter at an aggregate amount which exceeded the deductible. The Defendant should have satisfied the policy deductible utilizing these bills and once satisfied Plaintiff’s bill should have been paid from the benefits under the policy pursuant to the reserve in accordance with (4)(c).

This Court finds additional support in interpreting these statutes together by looking at the timing and specificity of the statutes. When a Court is attempting to harmonize multiple provisions and/or multiple statutes if conflict arises the more recent and more specific statute should control. Palm Harbor Special Fire Control Dist. v. Kelly, 500 So. 2d 1382 (Fla. 2d 1987). First and foremost, the most recent substantive change to Fla. Stat. §627.739 was in 2003 when the term “benefits otherwise due” was removed and replaced with “100 percent of expenses and losses.” The Plaintiff’s position that this statute deals with how to calculate deductibles (i.e. when the deductible applies to a bill it must be applied to 100% of the charge) rather than which types of bills are applied to the deductible, seems accurate. For the Court to agree with the Defendant’s proposition it would effectively remove all legislative protections afforded the Plaintiff’s bill under 4(c). As previously mentioned Fla. Stat. §627.736(4)(c) was substantively amended in 2008 to create this special reserve and was again amended in 2012 with minor changes to the subsection. This Court finds Fla. Stat. §627.739 to be the more general statute applying to deductibles across all policies of insurance while §627.736(4)(c) sets forth very specific benefits which must be reserved by insurers for payment only once a particular type of medical provider renders emergency services and care and submits its bill to the insurer within 30 days of notice of the loss. Based on the fact that the subsection was enacted more recently and this Court’s position that the subsection is more specific the Court finds that subsection (4)(c) should be given more weight when determining the outcome for the facts at issue.

(B) Plaintiff’s bill was reasonable, related and medically necessary in regards to Personal Injury Protection coverage.

Defendant’s argument that Plaintiff’s burden has yet to be met in regards to the reasonableness of the Plaintiff’s charge is not persuasive for this matter. Defendant’s motion for Final Summary Judgment was based solely on the application of the deductible to the ER physician’s bill; it set forth no argument that Defendant felt the charge was unreasonable or unrelated or medically unnecessary as to the patient/insured. The record evidence before this Court suggests that the sole legal issue is whether the deductible was properly applied to the ER physician bill. First and foremost, Defendant’s explanation of benefits shows the charged amount of $650.00 for Plaintiff’s bill was allowed in full prior to application of the deductible and makes no mention of the Defendant challenging the reasonableness of the Plaintiff’s charge. According, to General Star Indem. Co. v. West Florida Village Inn., Inc. “[t]he notion that a deductible could be applied to loss that is not covered by the policy is fundamentally unreasonable.” 874 So. 2d 26 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D1070b]. PIP benefits are to cover reasonable, related and medically necessary services and when Defendant applied the deductible (albeit improperly) to Plaintiff’s bill it made the determination that the charged amount was reasonable. Additionally, during the deposition testimony of Defendant’s adjuster who handled the Plaintiff’s claim it was conceded, over Defendant’s objections, that at the time of the processing of Plaintiff’s claim the bill was for both related and necessary services in regard to the automobile accident of the patient/insured. See generally, Glenn V. Quintana, D.C., P.A. (a/a/o Melissa N. Evans) v. State Farm Mutual Automobile Insurance Company, 19 Fla. L. Weekly Supp. 882a (Fla. 11th Jud. Cir. Miami-Dade Co. July 11, 2012). Finally, the adjuster on cross examination by Defendant’s counsel admitted the final decision to issue payment rested with him and he allowed the entire amount charged for the Plaintiff’s bill in question.

The Florida Supreme Court has recently addressed the permissive fee schedules outlined in Fla. Stat. §627.736 and determined that the statute allows for two distinct payment methodologies when determining reasonableness of medical bills, and an insurer must give notice of its intent to utilize the fee schedules outlined in the statute. Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 2013 WL 3332385, also cited as 38 Fla. L. Weekly S517a (Fla. 2013). The Supreme Court said “[i]n other words, pursuant to subsection (5)(a)1. of the PIP statute, reasonableness is a fact-dependent inquiry determined by consideration of various factors. Subsection (5)(a)2. of the statute, however, provides an alternative mechanism for determining reasonableness: by reference to the Medicare fee schedules.” Id. There was no dispute that Defendant’s policy in this particular case utilized the (5)(a)2. payment methodology and Defendant’s attempt to propose that this Court must now complete additional fact dependent inquiry on various factors after the conclusion of competing Final Summary Judgments lacks merit under the guidance provided by the Florida Supreme Court.

IV. CONCLUSION:

Accordingly, it is ORDERED AND ADJUDGED that the Plaintiff’s Motion for Final Summary Judgment is GRANTED and the Defendant’s Motion for Final Summary Judgment is DENIED. The Plaintiff is entitled to $200.00 (80% of the improperly applied $250 deductible) plus accrued interest of $16.40 (4.75 % from June 1, 2012) for a total of $216.40 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 the Plaintiff is hereby entitled to reasonable attorney fees and costs and reserves jurisdiction to determine the amount.

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¹Upon 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, 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 such claims may be used by the insurer to pay other claims. The time periods specified in paragraph (b) for required payment of personal injury protection benefits are tolled for the period of time that an insurer is required by this paragraph to hold payment of a claim that is not from such physician or dentist 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.)

²Fla. Stat. 627.739(2) – insurers shall offer to each applicant and to each policyholder, upon the renewal of an existing policy, deductibles, in amounts of $250, $500, and $1,000. The deductible amount must be applied to 100 percent of the expenses and losses described in s. 627.736. After the deductible is met, each insured is eligible to receive up to $10,000 in total benefits described in s. 627.736(1). However, this subsection shall not be applied to reduce the amount of any benefits received in accordance with s. 627.736(1)(c).

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