21 Fla. L. Weekly Supp. 436b
Online Reference: FLWSUPP 2105DUSSInsurance — Personal injury protection — Coverage — Medical expenses — Deductible — PIP statute and policy require that deductible be subtracted from total expenses and losses before statutory percentage limitations are applied
HEATHER DUSSAULT, an insured individual by and through his/her assignee, TAMPA BAY IMAGING, LLC, Plaintiff, v. WINDHAVEN INSURANCE COMPANY, a Florida corporation, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 12-CC-010093, Division I. July 9, 2013. Honorable Joelle. A. Ober, Judge. Counsel: Philip A. Friedman, FL Legal Group, Tampa, for Plaintiff. Dan Smith, Charles J. Grimsley & Assoc. P.A., Miami, for Defendant.
ORDER ON THE PARTIES CROSS-MOTIONSFOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court on the morning of April 30, 2013, present for the Plaintiff, Philip A. Friedman, Esq. and Melissa N. Gonzalez, Esq, and for Defendant Dan Smith, Esq and the Court having reviewed the file, including the parties stipulated facts, and argument being advised on statute and case law hereby makes the following findings of fact and conclusions of law.FINDINGS OF FACT
The controversy between the parties is whether the $1,000.00 deductible should be applied and subtracted from the total billing before or after any formula for payment or “percentage limitation” in the policy is applied. Pursuant to a stipulation of facts and other evidence in this Court’s file which show there are no genuine issues as to any material fact, Plaintiff is entitled to judgment as a matter of law.
Heather Dussault (DUSSAULT) purchased a policy of insurance from Defendant, Windhaven Insurance Company (WINDHAVEN), which provided personal injury protection coverage to a limit of $10,000.00 subject to a deductible of $1,000.00, a policy which is subject to the Florida Insurance Code, more specifically §627.730-627.7405 (Florida No-Fault Act). Dussault was involved in a motor vehicle accident on October 20, 2011 where she sustained bodily injury. She sought treatment with Plaintiff, her medical provider, Tampa Bay Imaging, LLC (TBI) on November 1, 2011, where she also assigned her rights to recover under the policy. TBI charged a reasonable amount for a causally related and medically necessary service, $1650.00, and timely submitted same in its notice of covered loss to Windhaven, which received the bill on November 17, 2011. This was the first bill received by Windhaven for this loss, thus it was subject to a deductible of $1000.00. Windhaven first limited TBI’s charge from $1,650.00 to $854.00, then applied the deductible, rendering the bill entirely subject to and within the deductible amount, making no payment. Both TBI’s charge and Windhaven’s limitation amount are reasonable.
TBI contends Windhaven should have first applied the deductible before limiting the charge, which would have resulted in payment of $520.00 ($1,650.00 bill less $1000.00 deductible = $650.00 at 80% = $520.00), stating both Windhaven’s policy and Fla. Stat. §627.739 requires this calculation. As such, TBI brings both a count for declaratory judgment pursuant to chapter 86, Fla. Stat. regarding the proper interpretation of the policy, Fla. Stat. §§627.739 and 627.736, and a breach of contract action for the balance claimed of $520.00 plus interest and other costs.
STATUTE AND POLICY
The relevant statutes applicable to these facts.
Fla. Stat. §627.739(2) (2010) (emphasis added) states:
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).
Fla. Stat. 627.736 (5)a (5) (2010) (emphasis added) states:
If an insurer limits payment as authorized by subparagraph 2., the person providing such services, supplies, or care may not bill or attempt to collect from the insured any amount in excess of such limits, except for amounts that are not covered by the insured’s personal injury protection coverage due to the coinsurance amount or maximum policy limits
The parties agree and this Court concurs the relevant statutes are clear and unambiguous. Windhaven’s policy (FL ASIM 01 07 03 08) states:
II. Personal Injury Protection Coverage
INSURING AGREEMENT
A. . . .
B. Subject to the limits shown in the Schedule or Declarations, personal injury protection benefits consist of the following:
MEDICAL EXPENSES
80 percent of the following schedule of maximum charges which must be “medically necessary:
. . .
6. For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B. . . .
7. The applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect . . . At p. 19, (Bold and CAPS in original, Italics as emphasis)
under Limits of Liability, paragraph C, p. 20(emphasis added):
The amount of any deductible shown in the Schedule of Declarations shall be deducted from the total amount of expenses and losses listed in all applicable parts of Paragraph B. of the Personal Injury Protection Coverage Insuring Agreement, before the application of any percentage limitation for each “insured” to whom the deductible applies.
CONCLUSIONS OF LAW
The plain, unambiguous and unequivocal language of §627.739(2) requires the deductible amount must be applied to 100 percent of the expenses and losses described in s. 627.736. This Court is not permitted to employ other rules of statutory construction. While payment of PIP benefits under Windhaven’s policy is payable at a percentage limitation of 80% and then 200% of the Medicare fee schedule, the Court finds for Plaintiff and declare as a matter of law that both of these limitations are “percentage limitations” as described in §627.739(2) and Windhaven’s policy and as such, Windhaven was required to apply 100% of the expenses and losses ($1,650.00) to the $1,000.00 deductible before taking any percentage limitation. As such, $650.00 of TBI’s bill was subject to payment pursuant to Windhaven’s insuring agreement. The Court further finds for the Plaintiff in damages of $520.00 in breach of contract, pre judgment interest of $45.301, together with attorney’s fees and costs and all other matters consistent with this Summary Judgment, and for all which let execution lie.
Defendant’s Motion for Summary Judgment is DENIED for reasons consistent with the findings herein.
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1$520.00 x 6% per annum (.0001644) x 530 days (from 11/17/2011-4/30/2013) = $45.30
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