21 Fla. L. Weekly Supp. 942a

Online Reference: FLWSUPP 2109BARRInsurance — Personal injury protection — Coverage — Medical expenses — Divergent judicial opinions from county and circuit courts as to whether policy provision at issue clearly elects to limit reimbursement to permissive statutory fee schedule render policy provision ambiguous per se — Florida Supreme Court’s opinion in Virtual Imaging does not compel finding that policy provision at issue unambiguously elects use of statutory fee schedule — Sufficiency of policy language was never considered in Virtual Imaging opinion, and policy provision at issue here is much broader and open to wider construction than policy language in Virtual Imaging — Policy provision that makes vague references to “any and all limitations…including, but not limited to, all fee schedules” does not unambiguously elect to limit reimbursement to permissive statutory fee schedule

HIALEAH DIAGNOSTIC, INC., A/A/O EDUARDO BARRIAL, Plaintiffs, vs. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Dade County. Case No. 12-16025 SP 25 (1). April 30, 2014. Honorable Gloria Gonzalez-Meyer, Judge. Counsel: Kenneth B. Schurr, Law Offices of Kenneth B. Schurr, P.A., Coral Gables; and Marlene S. Reiss, for plaintiff. Douglas G. Brehm, Miami, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT AND DENYINGDEFENDANT’S MOTION FOR SUMMARYJUDGMENT REGARDING SUFFICIENCYOF ALLSTATE’S POLICY LANGUAGE

THIS CAUSE came before the Court on April 21, 2014, on the parties’ Cross-Motions for Summary Judgment. The Court, having reviewed all pertinent documents, and having heard argument of counsel, GRANTS the Plaintiff’s Motion for Summary Judgment and DENIES Defendant Allstate’s Motion for Summary Judgment. Accordingly, it is hereby

ORDERED AND ADJUDGED:

that the Plaintiff’s Motion for Summary Judgment GRANTED and Defendant’s Motion for Summary Judgment is DENIED.Procedural Background

The parties have filed cross-motions for summary judgment on the sufficiency of Allstate’s policy language as it relates to the issue of whether Allstate may avail itself of the reimbursement limitations set forth in §627.736(5)(a)2.f.

Allstate’s insured was injured in a car crash and sought treatment with the Plaintiff/medical provider, who accepted an assignment of the insured’s right to recover PIP benefits.

In response to the Plaintiff’s claim for PIP benefits, Allstate sent a payment relying on the reimbursement limitations set forth in §627.736(5)(a)2., Fla. Stats. (2008). The Plaintiff sued Allstate for the difference between that amount and 80% of reasonable medical expenses as contemplated in §627.736(5)(a)2.

The parties have stipulated to relatedness and medical necessity, and have stipulated that the only issue for the Court is whether Allstate’s policy language sufficiently elected the methodology set forth in §627.736(5)(a)2., Fla. Stats. (2008) to allow Allstate to avail itself of that provision.

Under Part III of the policy, the “Personal Injury Protection Coverage” section, the policy language at issue states:

In accordance with the Florida Motor Vehicle No-Fault Law, Allstate will pay to or on behalf of the injured person the following benefits. . . .

1. Medical Expenses.

Eighty Percent of reasonable expenses for medically necessary medical, surgical, X-ray, dental and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services. . . .

(Policy at 14)(bold in original).

In the “Limits of Liability” section of Part III, the policy states:

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.

(Policy at 16)(italics added).

The parties do not dispute that, in 2011, Kingsway Amigo Ins. Co. v. Ocean Health, Inc., (a/a/o Belizaire Gomez), 63 So.3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a] the Fourth. District held that an insurer must elect the §627.736(5)(a)2., Fla. Stats. (2008) reimbursement limitations as their chosen methodology of reimbursement in order to avail themselves of that methodology of payment.

Kingsway, supra, was followed by another Fourth District case, and two Third District cases, the last of which certified the question to the Florida Supreme Court in GEICO v. Virtual Imaging Svcs, Inc. . __ So.3d __, 2013 WL 3332385, 38 Fla. L. Weekly S517a (Fla. 2013).¹

In July of 2013, the Florida Supreme Court agreed with Kingsway and the earlier district court opinions, holding that an insurer “must clearly and unambiguously elect” the alternative permissive option set forth in §627.736(5)(a)2., Fla. Stats. (2008) in order to avail itself of that option.

We conclude that because the policy did not reference the permissive Medicare fee schedule method of calculating reasonable expenses, GEICO was not permitted to limit reimbursements in accordance with the Medicare fee schedules.

Virtual III, supra at *9.

There are Divergent Opinions and Rulings Across the State Construing the Policy Provision

Once Kingsway was decided, medical providers across the state began challenging the sufficiency of Allstate’s policy language, (as well as other insurers’ policy language), asserting that the language in Allstate’s policy does not clearly and unambiguously elect the §627.736(5)(a)2., Fla. Stats. (2008) methodology.

Multiple county courts throughout the state ruled that Allstate’s policy language was not clear and unambiguous, as required by Kingsway and its progeny, and did not sufficiently elect the §627.736(5)(a)2. methodology. And, on the other hand, multiple county courts throughout the state ruled that Allstate’s policy language was clear and unambiguous, sufficiently electing the §627.736(5)(a)2. methodology.²

In addition, three circuit courts, sitting in their appellate capacity, have now decided the issue. One circuit court has held that Allstate’s policy does not sufficiently elect the alternative reimbursement limitation in §627.736(5)(a)2, and two circuit courts have held that Allstate’s policy does sufficiently elect the alternative reimbursement limitation in §627.736(5)(a)2. The identical policy language was analyzed in each county court order and each circuit court opinion.

On October 3, 2013, the circuit appellate division in the First Circuit affirmed the trial courts’ summary judgments in favor of various medical providers in four consolidated appeals. See Allstate Prop. & Cas. Co., et al. v. Neal Clinic of Comprehensive Healthcare, et al., Consolidated Case No. 2013-AP-000005 (000006) (000009) (000012) [21 Fla. L. Weekly Supp. 603a].

That court held, in pertinent part:

Allstate argues it did indeed invoke the provisions of 627.736(5)(a)2a-f in the limits of liability section of the policy. However, Allstate merely made general references to “Section 627.736” and “fee schedules,” and did not include any additional specific language in this portion of the policy that would give an insured clear notice that the payment method previously described in the “Personal Injury Protection Coverage” portion of the policy would not apply, and that it was electing to reimburse under an alternative option. This Court determines Allstate’s “notice” not adequate to suffice as the clear and unambiguous notice contemplated by Kingsway and Virtual Imaging Services. Because there was no clear notice of which payment option Allstate chose to exercise, this Court affirms the lower court’s Orders Granting Summary Disposition and Final Judgments.

Neal Clinic, supra at 3-4.

Earlier, in December 2013, in Allstate Fire & Cas. Ins. Co. v. Orthopedic Specialists (a/a/o Eoanna Spyropolous), Case No. 13-00003AP-88B [21 Fla. L. Weekly Supp. 470a], the circuit appellate division in the Sixth Circuit reversed the trial courts’ summary judgments in favor of a medical provider, ruling in pertinent part:

Like the Court in Virtual III, the court below relied on Kingsway for the proposition that, without specific reference in the policy to the permissive fee schedule methodology, the insurer is required to reimburse 80 percent of reasonable medical expenses. However, unlike the policies in Kingsway and Virtual III, which made no reference to fee schedules whatsoever, the policy in the instant case makes specific reference to the permissive fee schedule. The policy states that “any amounts payable under this coverage shall be subject to any and all limitations. . . including, but not limited to, all fee schedules.” The use of “shall” removes any possible ambiguity regarding whether the fee schedule reimbursement limitations will be applied. This is a clear election which puts the insured on notice of Allstate’s intent to limit reimbursements in accordance with the fee schedules.

Orthopedic Specialists (a/a/o Spyropolous), supra at 3-4.

In its opinion, the Sixth Circuit acknowledged the divergent county court and circuit court rulings. Id. at Note 1.

Most recently, on April 3, 2014, in Allstate Fire & Cas. Ins. Co., et al. v. Royal Diagnostic Center, Inc. (a/a/o Dania Mondy), Consolidated Case Nos. 13-074 AP; 13-075 AP; 13-076 AP; 13-197 AP [21 Fla. L. Weekly Supp. 627a], in four consolidated appeals, the circuit appellate division in the Eleventh Circuit also reversed the trial courts’ summary judgments in favor of a medical provider, ruling in pertinent part:

The amended GEICO policy language is very similar to Allstate’s policy language in the instant case. Both policies reference the Florida Motor Vehicle No Fault Law in general and specifically reference “all fee schedules.” The amended GEICO language states that payments will be made in accordance with all fee schedules, and the Allstate language from the instant case states that amounts payable under the policy shall be subject to limitations authorized by all fee schedules. Since the Florida Supreme Court indicated that the amended GEICO policy language provides sufficient notice to its insureds that GEICO elected to limit reimbursements under the fee schedules, it would seem that the Allstate policy language would also provide sufficient notice. Because the Florida Supreme Court had not decided Virtual Imaging at the time that the trial court entered its ruling, the trial court did not have the advantage of being able to make this comparison. We are in a better position, and having read the Florida Supreme Court’s approval of the amended GEICO policy, we find such approval very persuasive as it relates to Allstate’s policy language.

Indeed, it is our view that Allstate’s policy language clearly and unambiguously subjects payments to all fee schedules authorized by the PIP statute. In fact, it states that payments “shall be subject to” the fee schedules. (Emphasis added). This leaves no room for ambiguity.

Royal Diagnostic (a/a/o Mondy), supra at 2-3.³

Allstate takes the position that the Royal Diagnostic (a/a/o Mondy) decision is binding on this Court because it is an opinion that was issued by the circuit appellate division in this circuit.

The Plaintiff takes the position that, because district court opinions demonstrate that Florida takes the view that divergent judicial determinations render a policy provision ambiguous per se, this Court is bound by district court decisions and not the circuit appellate court.

This Court agrees with the Plaintiff.Divergent Judicial Determinations

This Court is aware, and the parties do not dispute, that, “in the absence of a controlling opinion from a district court of appeal or from the Florida Supreme Court, the appellate opinions issued by the Eleventh Circuit remain binding on the county courts within the jurisdiction of the Eleventh Circuit.” (Allstate’s Memorandum of Law Concerning Supplemental Authority at 2).

Allstate argues that the Mondy opinion from the circuit appellate division binds this Court and requires a finding that Allstate’s policy is clear and unambiguous, but Allstate ignores the fact that Florida courts take the view that divergent opinions “from a study of essentially the same [policy] language” establishes that the policy language is ambiguous. See Security Ins. Co. Of Hartford v. Investors Diversified Ltd., Inc., 407 So.2d 314 (Fla. 4th DCA 1981); Prudential Ins. Co. Of America v. Bellar, 391 So.2d 737 (Fla. 4th DCA 1980); Division of Opinion Among Judges on Same Court or Among Other Courts or Jurisdictions Considering Same Questions, as Evidence that Particular Clause of Insurance Policy is Ambiguous, 4 A.L.R. 4th 1253 (1981). See also Stroehmann v. Mut. Life Ins. Co. Of N.Y., 300 U.S. 435, 57 S.Ct. 607, 81 L.Ed. 732 (1937); Alvis v. Mut. Benefit Health & Accident Assn., 297 S.W. 643 (Tenn. 1956).

A policy provision was found ambiguous by the U.S. Supreme Court in Stroehmann, supra, where “[t]he arguments of counsel have emphasized the uncertainty. The District Court and the Circuit Court of Appeals reached different conclusions, and elsewhere there is diversity of opinion.” Stroehmann, supra at 439.

Also examining insurance policy language and finding an ambiguity based on divergent judicial determinations, the Fourth District stated:

The insurance company contends that the language is not ambiguous, but we cannot agree and offer as proof of that pudding the fact that the Supreme Court of California and the Fifth Circuit in New Orleans have arrived at opposite conclusions from a study of essentially the same language. [n. 3 They even disagreed as to whether the same language was ambiguous!]

Security Ins. Co. of Hartford, supra at 316.

The Court in Prudential Ins. Co. of Amer. v. Bellar, 391 So.2d 737 (Fla. 4th DCA 1980) found that a policy provision was not ambiguous, but only because the policy language at issue in the case was not the identical language considered by other courts — as it is here. There, the court stated:

In reaching our conclusion we are not unmindful that exclusionary language is to be construed most strongly against the insurer . . . and that ambiguity should be resolved against the insurance company which drafts the contract. . . . To this end it is persuasive for the husband to argue that there is ambiguity here because the courts have reached contrary results on similar clauses. . . . As the Husband argues, in a well written brief, “If the Georgia and Louisiana Courts of Appeal construed virtually identical language differently from the Courts in Oklahoma and the U.S. Court of Appeals Tenth Circuit then there must be ambiguity in the exclusionary clause”; ergo this Fourth District Court has no business reversing the trial judge. However, the clauses in the Georgia and Louisiana cases cited were not identical to the clause here under consideration, whereas the clause in the Oklahoma and Tenth Circuit cases involve the very same Insurance Company and is identical to the one now before us.

Bellar, supra at 737-38.

There is no dispute that the Allstate policy language at issue in this case is the identical Allstate policy language that numerous county courts and circuit courts have now disagreed upon, concluding both that the language isand is not a clear and unambiguous election of the §627.736(5)(a)2. reimbursement limitations.

If judges learned in the law can reach so diametrically conflicting conclusions as to what the language of the policy means, it is hard to see how it can be held as a matter of law that the language was so unambiguous that a layman would be bound by it.

Alvis v. Mut. Benefit Health & Accident Assn., 297 S.W. 643, 645-46 (Tenn. 1956).

The Court is also mindful of black letter law which holds that where contract language is susceptible to more than one meaning, it is ambiguous. See e.g., Penzer v. Transportation Ins. Co., 29 So.3d 1000 (Fla. 2010) [35 Fla. L. Weekly S73a].

Thus, this Court is not bound by the recent Eleventh Circuit opinion, but rather is bound by the district court opinions that have held that Florida courts take the view that divergent judicial determinations with respect to the identical policy language render the policy provision per se ambiguous.Virtual III

Even if the issue were not resolved based upon the Court’s rationale as set forth above, the Court would disagree with the reasoning of the Mondy appellate panel (assuming that the opinion were binding on this Court, which the Court does not believe is the case based upon district court opinions that are contrary to the Mondy opinion.)

The Mondy panel, and a number of county courts have been persuaded by Allstate’s argument that the Florida Supreme Court “blessed” the language of GEICO’s amended 2011 policy in its Virtual III opinion.

A plain reading of the opinion demonstrates that the Florida Supreme Court never considered the sufficiency of the language of GEICO’s amended policy, which was filed by Virtual Imaging to support a motion to dismiss that appeal as moot. While arguably within the appellate file in the Supreme Court, as a document appended to a Motion to Dismiss, the amended GEICO policy was not part of the record on which the Florida Supreme Court based its decision because it was not part of the Third District’s record transmitted to the Supreme Court. Allstate concedes as much.

The amended GEICO policy was simply mentioned in the Court’s introductory section, to explain why the Court’s “holding applies only to policies that were in effect from the effective date of the 2008 amendments to the PIP statute that first provided for the Medicare fee schedule methodology, which was January 1, 2008, through the effective date of the 2012 amendment, which was July 1, 2012.” Virtual III, supra at *1.

Even if the Florida Supreme Court did make such a finding — which this Court finds it did not — the language of Allstate’s policy is not even remotely similar to that of the amended GEICO policy.

Holding the language of each policy side by side demonstrates that Allstate’s language is much broader and open to much wider construction than that of GEICO’s amended policy.

The language in its policy on which Allstate relies states:

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.

(Policy at 16).

The language of the amended 2011 GEICO policy on which Allstate also relies states:

The Company will pay in accordance with the Florida Motor Vehicle No Fault Law (as enacted, amended, or newly enacted), and where applicable in accordance with all fee schedules contained in the Florida Motor Vehicle No Fault Law, to or for the benefit of the injured person:

(a) 80% of medical expenses

(Emphasis added).

As is plainly evident, the amended 2011 GEICO policy does not make its payment “subject to any and all limitations, authorized by section 627.736, or any other provisions of the” PIP Statute, and plainly contains no such broad language as “including, but not limited to, all fee schedules.”

Use of such vague words and phrases, such as “subject to,”⁴ “any and all limitations,” “or,” “any other provisions of,” and “including, but not limited to” opens Allstate’s policy provision to any number of interpretations.

Indeed, the PIP Statute as a whole includes a number of “limitations,” such as the limitation on coverage in the amount of $10,000.00. See Fla. Stats. §627.736(1)(“Every insurance policy . . . shall provide personal injury protection . . . to a limit of $10,000 for loss. . . .”) The Statute also limits an insurer’s liability to [e]ighty percent of all reasonable expenses. . . .” See Fla. Stats. §627.736(1)(a). Similarly, the Statute limits an insurer’s liability for lost wages to “[s]ixty percent of any loss of gross income. . . .” See Fla. Stats. §627.736(1)(b). Death benefits are limited to “$5,000 per individual. . . .” Fla. Stats. §627.736(1)(a)(c). A provider may not charge “in excess of the amount the person or institution customarily charges for like services or supplies,” and, thus, an insurer’s liability is limited to such an amount. Fla. Stats. §627.736(5)(a)1.

Significantly, to the extent that Fla. Stats. §627.736(5)(a)1. also references “fee schedules,” an insured or medical provider has no way of knowing whether Allstate has elected to limit its reimbursement specifically to the “fee schedules” referenced in Fla. Stats. §627.736(5)(a)2.

If Allstate were choosing to avail itself of the reimbursement limitations set forth in §627.736(5)(a)2 it knows how to say as much – – but it has chosen not to. Allstate’s policy does not satisfy the Florida Supreme Court’s mandate that an insurer “clearly and unambiguously elect the permissive payment methodology in order to rely on it.” Virtual III, supra at *9.

Throughout its opinion in Virtual III, the Florida Supreme Court repeatedly requires that an insurer’s policy “provid[e] notice by electing the Medicare fee schedules,” so that the insured or provider “knows . . . that the insurer will limit reimbursements.” Virtual III, supra at *10. See also Virtual, supra at *9 (“because the policy did not reference the permissive Medicare fee schedule method of calculating reasonable expenses, GEICO was not permitted to limit reimbursements in accordance with the Medicare fee schedules.”)

Put plainly, “[t]his is because a policy election gives notice to the insured — and to the provider who renders service based on an assignment of benefits in the insured’s policy — regarding the amount of PIP coverage the insurer will provide.” Virtual, supra at *9.

Allstate’s vague, broad and indefinite policy language does not do so.

If Allstate’s policy were not already rendered per se ambiguous by the divergent rulings and appellate opinions that have been emanating from courts throughout the State, this Court would determine that Allstate’s policy language does not satisfy Virtual III‘s requirement that an insurer’s policy must “reference the permissive Medicare fee schedule method of calculating reasonable expenses,” because Allstate’s policy just makes vague references to “any and all limitations . . . including, but not limited to, all fee schedules.” Virtual III, supra at *9.Certification

The Court declines to certify any question to the Third District Court of Appeal, as suggested by Allstate, and opposed by the Plaintiff, because the issue is one that is easily resolved by the fact that divergent judicial opinions and rulings throughout the State and within this very circuit render Allstate’s policy provision per se ambiguous as a matter of law.

Accordingly, the Court GRANTS Plaintiff’s Motion for Summary Judgment; DENIES Defendant Allstate’s Motion for Summary Judgment; and declines to certify a question to the Third District Court of Appeal.

__________________

¹See GEICO Indem. Co. v. Virtual Imaging Svcs., Inc., 90 So.3d 321 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D985b]; DCI MRI, Inc. v. GEICO Indem. Co., 79 So.3d 840 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D170e]; GEICO Indem. Co. v. Virtual Imaging Svcs., Inc., 79 So.3d 55 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a].

²There are over twenty county court orders ruling in favor of insureds or medical providers and over a dozen county court orders ruling in favor of Allstate on the sufficiency of its policy language.

³At the hearing, Allstate acknowledged that the Mondy decision is currently pending rehearing.

⁴The term “subject to” is ambiguous because case law demonstrates that it is has many possible interpretations. See Affinity Internet, Inc. v. Consolidated Credit Counseling Svcs., Inc., 920 So.2d 1286, 1289 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D662a](“subject to” means “liable, subordinate, subservient, inferior, obedient to; governed or affected by; provided that; provided; answerable” (citing Black’s Law Dictionary 1425 (6th ed. 1990)); BGT Group, Inc. v. Tradewinds Eng. Serv. LLC, 62 So.3d 1192 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1207a](terms of contract not binding on party because of lack of detailed description of terms in document referred to as “subject to”); St. Augustine Pools, Inc. v. James M. Barker, Inc., 687 So.2d 957 (Fla. 5th DCA 1997) [22 Fla. L. Weekly D432a].

At least three county courts have held that Allstate’s use of the term “subject to” renders the policy provision ambiguous. See Injury Treatment Center of Coral Springs, Inc. (a/a/o Marie Laurette) v. Allstate Prop. & Cas. Ins. Co., Case No. 12-001274 (Broward Cty. Ct. January 10, 2013), Lee, J. DPI of North Broward LLC (a/a/o Lauren Goldstein) v. Allstate Fire & Cas. Ins. Co., Case No. 12-1696 COCE (53) (Broward Cty. Ct., November 1, 2012) [20 Fla. L. Weekly Supp. 161a], Lee, J.; Florida Wellness & Rehab. Center (a/a/o Isolina E. Portal) v. Allstate Ins. Co., Case No. 12-8478-SP-25 (Miami-Dade Cty. Ct., October 19, 2012), Marino-Pedraza, J.

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