21 Fla. L. Weekly Supp. 568a
Online Reference: FLWSUPP 2106SAMPInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy which states that insurer will pay benefits in at least two different ways at insurer’s option does not clearly elect to limit reimbursement to permissive statutory fee schedule
NEW SMYRNA IMAGING, LLC, as assignee of Lafayette Sampson, Plaintiff, v. VICTORIA SELECT INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2011 22339 CONS. February 28, 2014. Shirley A. Green, Judge. Counsel: Mark A. Cederberg, Bradford Cederberg, P.A., Orlando, for Plaintiff. Michael J. Laporte, Orlando, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS MATTER having come before this Honorable Court on Plaintiff’s Motion for Final Summary Judgment and this Honorable Court having heard arguments of counsel, considered the Motions, evidence submitted and the laws in effect, and being otherwise fully advised in the premises, the Court finds as follows:
I. Background:
The following factual background is undisputed. The Defendant issued a policy of insurance which provided personal injury protection coverage to the patient, Lafayette Sampson, for injuries sustained in a motor vehicle accident on August 13, 2011. The policy contained coverage in the amount of $10,000 in PIP benefits and $1,000 in medical payments; there was no deductible on the policy. Lafayette Sampson presented to the Plaintiff, NEW SMYRNA IMAGING, LLC, on August 23, 2011 for medical imaging services related to the automobile accident. Plaintiff provided CPT code 72141 (MRI of cervical spine without contrast) and CPT code 72040 (radiologic examination of cervical spine) to the patient/insured. The medical imaging services provided by the Plaintiff to Lafayette Sampson were medically necessary and related to the subject motor vehicle accident. The patient/insured, via an assignment of benefits, assigned the personal injury protection benefits under the policy of insurance to the Plaintiff. The Plaintiff charged a total of $1,830.00 for the medical services performed and Defendant reimbursed only $1,085.10 (80% under PIP benefits and 20% under Medical Payment benefits). Defendant’s reductions to Plaintiff’s bill were based solely upon Defendant’s assertion that reimbursement could be limited to 200% of the Participating Level of Medicare Part B fee schedule for the region in which services were rendered. Therefore, the dispute for the Court to resolve is whether Victoria Select’s policy clearly and unambiguously elected the Medicare payment methodology to limit reimbursement to the fee schedules in Fla. Stat. §627.736(5)(a)(2).
II. Policy Language:
Personal injury protection benefits are both mandatory under Florida Statute §627.736 and are provided by insurance contracts. The specific and relevant language of the contract at issue in this matter states:
PERSONAL INJURY PROTECTION
(no-fault motor vehicle insurance)
.
.
.
BENEFITS
Benefits are as follows:
MEDICAL BENEFITS
Benefits will be paid to or for the benefit of the injured person, at our option, in the following manner:
1. 80% of the reasonable amount billed; or
2. 80% of the rate of the schedule of maximum charges pursuant to the Florida Motor Vehicle No-Fault Law. (emphasis applied).
The matter before this Court and argued by counsel is whether the above-referenced policy language is sufficient to allow the Defendant to utilize 200% of the Participating Level of Medicare Part B fee schedule when reimbursing the Plaintiff. This Court is familiar with the binding case law from both the Florida Supreme Court and various District Court(s) of Appeal, interpreting Fla. Stat. §627.736 and the permissive payment methodologies set forth by the Legislature. Based on the forgoing legal analysis, this Court finds the policy in question does not allow the Defendant to reimburse the Plaintiff’s bill for anything less than 100% of the reasonable amount charged.
III. Legal Analysis:
The Florida Supreme Court has determined that the legislature when enacting the 2008 Personal Injury Protection statute created two separate and distinct payment methodologies for reimbursing reasonable medical expenses. First, the Court found §627.736(5)(a)1. provides that reasonableness is a fact-dependent inquiry determined by consideration of various factors. Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 2013 WL 3332385 (Fla. 2013) [38 Fla. L. Weekly S517a]. Alternatively, the Court found §627.736(5)(a)2. provided an alternative mechanism for determining reasonableness: by reference to the Medicare fee schedules. Id. Most importantly, the Supreme Court has found that in order to exercise the option, the insurer must provide notice in the policy of its clear and unambiguous election to use the fee schedules. Id. In Virtual Imaging, the Supreme Court agreed, adopted and/or approved all previous appellate decisions from the District Court(s) of Appeal emphatically proclaiming: “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). Id.
This Court finds the policy of insurance at issue in this matter is vague and ambiguous. Specifically, the insurance contract states that the Defendant will pay PIP benefits in at least one of two different ways “at our option.” This language the Defendant attempts to rely upon fails to adequately elect between two separate and distinct payment methodologies. It is clear that the subject policy of insurance has at least two separate payment methodologies referenced and yet fails to give the policyholder notice of which methodology the insurer will utilize in processing medical benefits. This policy language is insufficient to apprise the insured patient and the medical provider of Victoria Select’s intent to limit reimbursement pursuant to Fla. Stat. §627.736(5)(a)(2)(f). Furthermore, Victoria Select’s policy fails to adopt the language contained in (5)(a)(2)(f) and fails to specify that Victoria Select will pay 200% of the Medicare Part B fee schedule. Finally, the Geico Court states the well-settled proposition that “ambiguities in insurance contracts are resolved in favor of the insured.” Geico Indem. Co. v. Virtual Imaging Services, Inc., 79 So.3d 55 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a]. The Plaintiff in this matter is entitled to the greatest amount of possible coverage due to the contract’s vagueness and ambiguities. In the instant matter, the affidavit of Plaintiff’s owner and director, Traci Postell, establish that Plaintiff’s charge is reasonable. Therefore, Plaintiff should have been reimbursed at its reasonable charge.
In conclusion, the Defendant’s policy of insurance is vague and ambiguous. There are at least two separate payment options within the contract of insurance and the contract fails to specifically elect or notify the insured and/or medical provider which option the carrier will utilize. Since the Defendant did not clearly elect a choice for reimbursement, it has failed to avail itself of the safe haven Medicare fee schedule reimbursement methodology. Plaintiff’s affidavit of Traci Postell presents competent substantial evidence that its charge for the services provided was reasonable. Defendant presented no record evidence to rebut Plaintiff’s proof. Accordingly, the Court finds that Plaintiff’s charges were reasonable and that judgment in favor of the Plaintiff is warranted.
It is therefore ORDERED and ADJUDGED:
1. Plaintiff’s Motion for Final Summary Judgment is hereby GRANTED.
2. Final Judgment is hereby entered in favor of the Plaintiff, New Smyrna Imaging, LLC, as assignee of Lafayette Sampson, wherein Plaintiff shall recover from Defendant, the sum of $744.90 plus 4.75% per annum interest in the amount of $85.40 for a total sum of $830.30 for which sum let execution issue. Post judgment interest of 4.75% per annum shall accrue on this judgment pursuant to Fla. Stat. §55.03 (2013).
3. This Court finds Plaintiff is entitled to attorney fees and costs and furthermore reserves jurisdiction to determine the amount of attorneys’ fees and costs due to Plaintiff pursuant to Fla. Stat. §§627.428, 627.736 and 57.041.
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