21 Fla. L. Weekly Supp. 1070a

Online Reference: FLWSUPP 2110ALUMInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy providing that insurer will pay 80% of reasonable expenses but also providing that amount payable “shall be subject to any and all limitation” authorized by PIP statute does not provide clear and unambiguous notice of intent to limit reimbursement to Medicare Part B fee schedule

QUANTUM IMAGING HOLDINGS, LLC A/A/O ELDA ALUME, Plaintiff, v. ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-023608 COCE 50. June 20, 2014. Honorable Peter B. Skolnik, Judge. Counsel: Emilio R. Stillo, for Plaintiff. Douglas E. Brehm, for Defendant.

FINAL JUDGMENT IN FAVOR OF PLAINTIFF

THIS CAUSE having come to be heard before the Court on Plaintiff’s and Defendant’s competing motions for Final Summary Judgment. After reviewing the pleadings, the evidence, and argument of counsel, the Court makes the following findings:Facts

At issue in this case is the sufficiency of the Defendant’s (hereinafter referred to as “Allstate”) policy language. Allstate has stipulated that, while not agreeing that the amounts charged were reasonable, it will not require Plaintiff to prove the reasonableness of the Plaintiff’s charge of $1,750.00 for CPT Code 72148 Allstate chose to pay the submitted bills at the 200% Medicare cap.

The parties agree that on January 1, 2011, Elda Alume was involved in a motor vehicle accident in which he sustained personal injuries. Following the motor vehicle accident, Allstate sent Alume a notice which included an application for “no-fault” benefits and a notice of Personal Injury Protection Benefits. The notice included a statement which says:

PIP pays 80 percent of medical benefits for all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, wheelchairs, crutches, slings, neck braces and splints. Medically necessary ambulance, hospital and nursing services are covered, and benefits also are paid for necessary remedial treatment and services recognized and permitted under the laws of the state for an injured person who relies solely upon spiritual means through prayer for healing because of religious beliefs.

On April 13, 2011, Plaintiff provided diagnostic services for Alume. Such services were medically necessary. The services billed by the Plaintiff for the care was related to the injuries sustained by Alume in the motor vehicle accident on January 1, 2011. The Defendant issued a policy of insurance which provides personal injury protection coverage as described by F.S. § 6274.736 for the benefit of Alume. And there remains unpaid benefits of $487.26 which would have been payable had Allstate not applied the fee schedule as described by F.S. 627.736(5)(a)(2).

Further Allstate admits the Plaintiff has standing to bring this lawsuit, in that both the Plaintiff and Alume have performed all contractual and statutory conditions precedent and Allstate, for the purpose of creating a pure question of law, has admitted that “For purposes of this lawsuit, in the event the Court determines that Allstate was not permitted to apply the fee schedule limitations to the reimbursements at issue Allstate will not contest the reasonableness of the invoiced amounts at issue in this lawsuit.”

The language of Allstate’s policy provides that Allstate will pay as follows, as pertains to personal injury protection (PIP) coverage:

“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.

The policy further states:

Any amounts payable under this coverage shall be subject to any and all limitation, 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.”

Allstate contends that this latter provision is a clear and unambiguous election of the fee schedule limitations as its method for determining reasonable charges and that the only limitation authorized by section 627.736, as pertains to the bills in this case, is the 200% Medicare cap, and as a result, it is unambiguously electing to use the Medicare cap methodology as its payment method.

The Plaintiff contends that Allstate failed to clearly and unambiguously include this methodology in its policy, as required by Geico General Insurance Company v. Virtual Imaging Services Inc. etc., 38 Fla. L. Weekly S517a (Fla. 2013), and as a result, Allstate is obligated to pay 80% of the “reasonable expenses”, billed by Plaintiff. Allstate agrees that if the Plaintiff’s interpretation is correct, it would owe Plaintiff an additional sum towards the medical bills submitted.AnalysisThe Statute

The statute in effect at the time the policy is issued governs the substantive issues in an insurance dispute such as this one, State Farm Mutual Auto. Ins. Co. v. Menendez, 70 So.3d 566 (Fla. 2011) [36 Fla. L. Weekly S469a]. This policy was issued on August 20, 2010. The applicable statute is the 2010 version of the No-Fault Law. The specific subsections involved in this dispute are §§ 627.736(1)(a), (5)(a)(1) and (5)(a)(2). They read, in pertinent part, as follows:

627.736 Required personal injury protection benefits; exclusions; priority; claims. —

(1) REQUIRED BENEFITS. — Every insurance policy complying with the security requirements of s.627.733 shall provide personal injury protection to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle and suffering bodily injury while not an occupant of a self propelled vehicle, subject to the provisions of subsection (2) and paragraph (4)(e), to a limit of $10,000 for loss sustained by an such person as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle as follows:

(a) Medical benefits. — Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services.

(5) CHARGES FOR TREATMENT OF INJURED PERSON. —

(a)1. Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and insured party only a reasonable amount pursuant to this section for the services and supplied rendered, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment, if the insured receiving such treatment or his or her guardian has countersigned the properly completed invoice, bill, or claim form approved by the office upon which such charges are to be paid for as having actually rendered, to the best knowledge of the insured or his or her guardian. In no event, however, may such a charge be in excess of the amount the person or institution customarily charges for like service or supplies. With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual customary charges and payments accepted by the provider involved in the dispute, the reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.

2. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:

a. For emergency transport and treatment by providers licensed under chapter 401, 200 percent of Medicare.

b. For emergency services and care provided by a hospital licensed under chapter 395, 75 percent of the hospital’s usual and customary charges.

c. For emergency services and care as defined by s. 395.002(9) provided in a facility licensed under chapter 395 rendered by a physician or dentist, the usual and customary charges in the community.

d. For hospital inpatient services, other than emergency services and care, 200 percent of the Medicare Part A prospective payment applicable to the specific hospital providing the inpatient services.

e. For hospital outpatient services, other than emergency services and care, 200 percent of the Medicare Part A Ambulatory payment Classification for the specific hospital providing the outpatient services.

f. For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B. However, if such services, supplies, or care is not reimbursable under Medicare Part B, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under worker’s compensation, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care workers’ compensation is not required to be reimbursed by the insurer.

[Emphasis added]

The legislature drafts statutes using particular language for a reason. There is a reason § 5(a)1 and § (5)(a)2 use distinct terminology. The reason is clarity. If a carrier wishes to draft a policy, and collect premiums, consistent with § (5)(a)1 they pay 80% of the reasonable charge and may consider (as an element) various state and federal fee schedules. If a carrier wishes to draft a policy, and collect premiums, consistent with § (5)(a)2 then they can limit reimbursement with the schedule of maximum charges described by § (5)(a)2.

Terms used in the statute are important. They convey meaning to the persons and courts interpreting them. Likewise, the terms used in insurance policies are important. If Allstate wanted to limit reimbursement in accordance with F.S. § 627.736(5)(a)2, it needed to be clear and unambiguous. By actually using terms found in § (5)(a)1 rather than in § (5)(a)2 — Allstate’s policy did not clearly and unambiguously adopt the payment limitation under (5)(a)2.

Along with the No-Fault statute, the Legislature has enacted several statutes regulating interpretation of insurance policies. One statute especially pertinent to this dispute provides that any PIP policy “shall be deemed to incorporate the provisions of the Florida Motor Vehicle No-Fault Law,” as amended in 2008. [e.s.] § 627.7407(2), Fla. Stat. (2011). Still another provides that “Insurance contracts shall contain [e.s.] such standard or uniform provisions as are required by the applicable provisions of this code pertaining to contracts of particular kinds of insurance.” § 627.412(1), Fla. Stat. (2011).

Yet another statute requires every policy to “specify” the risks insured against and “any conditions” applying in the coverage. § 627.413(1), Fla. Stat. (2011). Finally, one more statute provides that “every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as . . . modified by any . . . endorsement thereto.” [e.s.] § 627.419(1), Fla. Stat. (2011). Taken together these statutes impose on insurers a duty of overall clarity and specificity, and to avoid all ambiguity in their policies, even latent. These are critical in drafting limitations and conditions on coverage in PIP insurance.

The Supreme Court explained in U.S. Fire Insurance Company v. J.S.U.B. Inc, 979 So.2d 871, 877 (Fla. 2007) [32 Fla. L. Weekly S811a] that:

“Insurance contracts are construed according to their plain meaning, with any ambiguities construed against the insurer and in favor of coverage. Further, ‘in construing insurance policies, courts should reach each policy as a whole, endeavoring to give every provision its full meaning and operative effect.”

[Citations omitted]

And in Travelers Indemnity Co. v. PCR Inc., 889 So.2d 779 (Fla. 2004) [29 Fla. L. Weekly S774a], the Supreme Court. explained:

“Policy language is considered to be ambiguous. . . if the language ‘is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage.’ When language in an insurance policy is ambiguous, a court will resolve the ambiguity in favor of the insured by adopting the reasonable interpretation of the policy’s language that provides coverage, as opposed to the reasonable interpretation that would limit coverage.”

(Citations omitted]

Recently, the 1st DCA again held that any ambiguity must be construed against the drafter. Heather Spaid v. Integon Indemnity Corporation, 39 Fla. L. Weekly D1299a (Fla.1st DCA June 18, 2014). Finally, in Virtual, the Supreme Court required that the choice of the methodology be done in a manner so that the insured patient and health care providers would be aware of it. Id. In Virtual, Justice Pariente explained that “the PIP statute sets forth a basic coverage mandate” in medical benefits. She stressed that the mandate “is the heart of the PIP statute’s coverage requirements.” 2013 WL 3332385 at 6. Thus, “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.” 2013 WL 3332385 at 9. If the 2008 amendments are only “incorporated,”. she clarified, “neither the insured nor the provider knows. . .that the insurer will limit reimbursements.” 2013 WL 3332385 at 10.

In essence the policy simply says “Allstate will pay. . . Eighty percent of reasonable expenses. . . . ‘Reasonable’ and ‘Medical Expenses’ are not defined in the Allstate Policy. The Allstate policy contains many pages of defined terms. The endorsement, where Allstate contends it limits reimbursement to § (5)(a)2, contains no definitions at all.

Allstate drafted this policy and the endorsement — Allstate had every opportunity to define these basic terms. Allstate should not be heard to complain about the ambiguities in its policy where it alone chose not to define these basic terms.

Applying the Supreme Court’s principles of construction, this Court concludes that Allstate’s language is ambiguous in attempting to limit reimbursement to FS 627.736(5)(a)(2)(a-f) for numerous reasons.

Allstate’s choice of confusing language placed in a separate section a page later than the “eighty percent of reasonable expenses” language results in a finding that Allstate did not make its election in a manner so that the insured patient and health care providers would be aware of it, even if Allstate’s “subject to” language could be interpreted to incorporate FS 627.736(5)(a)(2)(a-f). Further, the Florida Supreme Court in Virtual recognized that there are two methodologies for satisfying the statutory mandate to pay reasonable expenses One is a fact dependent analysis under 5a1 and the other is by clearly and unambiguously electing the fee schedules under 5a2 in the policy. The policy provision at issue in this matter incorporates both. As the Supreme Court noted in Virtual, “even if the Medicare fee schedules are incorporated into the insured’s policy, neither the insured nor the provider knows, without the policy providing notice by electing the Medicare fee schedules that the insurer will limit reimbursements.”

Allstate’s policy contains several ambiguities. First, the term “subject to” is ambiguous as it has many possible interpretations. Its customary use is to indicate a condition to one party’s duty of performance and not a promise by the other. The amounts payable are already “subject to” all portions of the Florida Motor Vehicle No-Fault Law.

By use of the phrase “subject to,” Allstate has not incorporated the optional provisions of FS 627.736(5)(a)(2)(a-f) into the policy. See St. Augustine Pools, Inc. v. James M. Barker, Inc., 687 So.2d 957, 958 (Fla. 5th DCA 1997) [22 Fla. L. Weekly D432a] (the words “subject to” in a contract are distinct from “incorporating” provisions of another document). Allstate has said nothing more than what is already true — all PIP policies are “subject to” these provisions; however, Allstate must clearly and unambiguously take the next step to incorporate these optional provisions into the policy if it desires to use the alternative methodology provided. See also Geico General Insurance Company v. Virtual Imaging Services, Inc. etc., 38 Fla. L. Weekly S517a (Fla. 2013): The Imaging Center of West Palm Beach, LLC (a/a/o Susan Agnello) v. Allstate Property & Casualty Insurance Company, 21 Fla. L. Weekly Supp. 96a (17th Circuit, County Court; Judge Robert W. Lee).

The “subject to provision” is intrinsically ambiguous, with many possible meanings. In context all of them create ambiguity. See Affinity Internet Inc. Consol. Credit Couns. Serv. Inc. 920 So.2d 1286, 1289 (Fla.4th DCA 2006) [31 Fla. L. Weekly D662a] (subject to means “liable, subordinate, inferior, obedient to; governed or affected by; provided; answerable” (quoting BLACK’S LAW DICTIONARY 1425 (6th ed. 1990)). In fact its customary legal use is really only to “indicate a condition to one party’s duty of performance and not a promise by the other.” BGT Group Inc. v. Tradewinds Eng. Serv. LLC, 62 So.3d 1192 (Fla.4th DCA 2011) [36 Fla. L. Weekly D1207a](because of lack of detailed description of terms in document referred to as subject to, terms could not be deemed binding on party). Allstate’s “subject to provision” just incants a statutory truism, namely that all PIP policies are subject to the PIP statute. Allstate’s “subject to provision” fails to state anywhere in clear, plain text that it will not pay 80% of medically necessary services — which its primary coverage clause requires. Nor does Allstate express in any way that it pay no more than FS 627.736(5)(a)(2)(a-f) allow.¹ Giving due effect to all relevant words, Allstate fails to state anywhere in explicit, plain, simple, apt words that Allstate will not pay 80% of reasonable charges and will actually limit payment to FS 627.736 (5)(a)(2)(a-f).

This point was made quite well by Judge Robert W. Lee in DPI of North Broward, LLC (a/a/o Lauren Goldstein) v. Allstate Fire and Cas. Co., 20 Fla. L. Weekly Supp. 161a (Fla. Broward County, Cnty. Ct. 2012)(Lee, J.) where the Court held:

By use of the phrase “subject to,” Allstate has not incorporated the optional provisions of the Medicare fee cap into the policy. See St. Augustine Pools, Inc. v. James M. Barker, Inc., 687 So.2d 957, 958 (Fla. 5th DCA 1997)[22 Fla. L. Weekly D432a] (the words “subject to” in a contract are distinct from “incorporating” provisions of another document). Allstate has said nothing more than what is already true — all PIP policies are “subject to” these provisions; however, Allstate must clearly and unambiguously take the next step to incorporate these optional provisions into the policy if it desires to use the alternative methodology provided.

What Allstate has done here is simply incorporate the PIP statute (including but not limited to all fee schedules) into the policy. Allstate references everything under the sun without specifically enumerating anything. Based on this language, an insured (or provider assignee) can never know what provision of the no-fault act Allstate will utilize in determining reimbursement. There is no specific reference to any single methodology for calculating payment. Reference to “any and all limitations” is reference to none specifically. For Allstate to be allowed, after the fact, to pick and choose which ‘limitation’ amongst “any and all limitation” would render the Supreme Court’s ruling in Virtual III meaningless.

F.S. § 627.736(5)(a)1 says:

With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be give to . . . various federal and state medical fee schedules applicable to automobile and other insurance coverages. . .

This reference to “fee schedules” in § (5)(a)1 is the only place where that term is specifically utilized. This reference is not particular to any single concept. It is certainly not intended to solely reference the “Medicare fee schedules.” The fact that the statute uses the term ‘various’ makes it clear that there are multiple separate fee schedules that may be referenced in determining whether a particular charge is reasonable. In fact, the references are not even limited to Florida. It appears that the statute contemplates that an insurer could consult any “state fee schedule.” Nothing therein limits it to a Florida state fee schedule. In addition, the reference to “fee schedules” in § (5)(a)1. predates any reference to “Medicare fee schedules” as the language in §(5)(a)1 was present in the PIP statute prior to the 2008 amendments which added §(5)(a)2.

Likewise, “Schedule of Maximum Charges” is a § (5)(a)2 concept.

F.S. § 627.736(5)(a)(2) says:

The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:

§ (5)(a)2 does not refer to the payment limitations as fee schedules. The statute specifically utilizes different terminology. It is not unreasonable to expect a carrier who intends to give notice of its insured and intended third party beneficiaries to be clear, unambiguous and to use the specific terms used by the legislature to designate the election. If § (5)(a)2 says ‘limit reimbursement to 80 percent of the following schedule of maximum charges’ then the simples, clearest, most unambiguous policy provision would be to say exactly that. Allstate did not.

Even if the term “subject to” were deemed to be limiting in nature the provision makes amounts payable subject to any and all limitations authorized by 627.736. There are several limitations authorized by this statute. In addition to the permissive schedule of maximum charges under FS 627.736(5)(a)(2)(a)-(f), a medical provider is limited to charging the insurer and injured party only a reasonable amount for his services and the amount charged is limited to no more than the amount the provider customarily charges for like services under FS 627.736(5)(a)(1). Moreover, the provision is written in the conjunctive. Therefore the policy can be interpreted as subjecting amounts payable to either any and all limitations “or” any other provisions of the Florida Motor Vehicle No-Fault Law . . . including, but not limited to all fee schedules. Not only does this language fail to clearly and unambiguously elect the fee schedules under 627.736(5)(a)(2) it subjects amounts payable to all provisions of the statute including 627.736(5)(a)(1).

Allstate has done nothing other than give itself the option to reimburse benefits under either the 5a1 or 5a2 methodology and has not clearly and unambiguously elected to limit reimbursement in accordance with FS 627.736(5)(a)2. The Court also notes that the policy retains a provision giving Allstate the right to contest whether charges are reasonable. If it was Allstate’s intent to elect to limit reimbursements in accordance with 5a2 there would be no reason to ever have to contest the reasonableness of the charge.

Additionally, earlier in its policy under the Limits of Liability for Automobile Medical Payments Allstate uses the following language in an effort to elect the fee schedules:

“ANY AMOUNTS PAYABLE UNDER THIS COVERAGE SHALL BE SUBJECT TO THE FEE SCHEDULE REIMBURSEMENT LIMITATIONS SET FORTH IN THE FLORIDA MOTOR VEHICLE NO-FAULT LAW, AS ENACTED, AMENDED OR OTHERWISE CONTINUED IN THE LAW”

While the Court believes the use of the term “subject to” is ambiguous, the remaining portion of the provision subjects amounts payable to only the fee schedule reimbursement limitations set forth in the Florida Motor Vehicle No-Fault Law. The specific reference to fee schedule reimbursement limitations as opposed to any and all limitations together with the elimination of the conjunctive “or any other provisions of the Florida Motor Vehicle No-Fault Law” do not create the myriad of possible interpretations applicable to the PIP provision at issue. Had Allstate used this language in the PIP provision of the policy the question of ambiguity would be much closer.

Similarly, the Plaintiff has moved into evidence a 2013 Allstate policy which contains the following language:

“The methodology for determining the amount we will pay for such expenses shall, pursuant to the fee schedule limitations under Section 627.736 (5)(a)1. of the Florida Statutes, or any other limitations established by Section 627.736 of the Florida Statutes, or of the Florida Motor Vehicle No-Fault Law, as enacted, amended or otherwise continued in the law, be limited to eighty percent of the following schedule of maximum charges (or any other fee schedule limitation which may be enacted, amended or otherwise continued in the law):

a. for emergency transport and treatment by providers licensed under Chapter 401 of the Florida Statutes, 200 percent of Medicare;

b. for emergency services and care provided by a hospital licensed under Chapter 395 of the Florida Statutes, 75 percent of the hospital’s usual and customary charges;

c. for emergency services and care as defined by Section 395.002 of the Florida Statutes, provided in a facility licensed under Chapter 395 rendered by a physician or dentist, and related hospital inpatient services rendered by a physician or dentist, the usual and customary charges in the community;

d. for hospital inpatient services, other than emergency services and care, 200 percent of the Medicare Part A prospective payment applicable to the specific hospital providing the inpatient services;

e. for hospital outpatient services, other than emergency services and care, 200 percent of the Medicare Part A Ambulatory Payment Classification for the specific hospital providing the outpatient services; and

f. for all other medical services, supplies and care, 200 percent of the allowable amount under:

(i) the participating physicians fee schedule of Medicare Part B, except as provided in subparagraphs (ii) and (iii) below

(ii) Medicare Part B, the case of services, supplies and care provided by ambulatory surgical centers and clinical laboratories.

(iii) the Durable Medical Equipment Prosthetics/Orthotics and Supplies fee schedule of Medicare Part B, the case of durable medical equipment.”

Had Allstate used the 2013 language in the PIP provision of the policy at issue the Plaintiff contends the question of ambiguity would likely have been resolved in Allstate’s favor.

The Court rejects Allstate’s position that the Florida Supreme Court’s ruling in Virtual approved the text in GEICO’s amendment to its standard policy made while the case was being presented in the Supreme Court. The case on review in the Supreme Court involved only GEICO’s 2008 version of its PIP policy. At some point during the proceedings in the Supreme Court, respondent had moved to dismiss the case, arguing that GEICO had since changed the same provision significantly in its standard form PIP policy mooting the issue.

The Supreme Court obviously refused to dismiss the case because it proceeded to decide it on the merits. But what the Supreme Court actually said about Geico’s new policy text was this:

“Because the GE1CO policy has since been amended to include an election of the Medicare fee schedules as the method of calculating reimbursements, and the Legislature has now specifically incorporated a notice requirement into the PIP statute, effective July 1, 2012, see § 627.736(5)(a) 5., Fla. Stat. (2012), our 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.”

In short, contrary to approving the new text put forth by GEICO, the Court made clear that its holding applied only to the policies in effect from 2008 to 2012. The Court was careful to express no decision as to the new policy text, because the issue before the Court involved only the policies in effect in the cases already adjudicated in the lower courts. The Supreme Court’s real, distinct and clear holding in Virtual is that the contested PIP med-pay policies in effect from 2008 to 2012 failed to state a clear election to limit medical benefits to the Medicare fee schedules. The Allstate policy language before the Court involves an Allstate policy in effect between 2008 and 2012 for the Florida Supreme Court has expressly made Virtual directly controlling. Further, the Court notes that on April 10, 2014 the Broward Circuit Court struck Allstate’s Appendix from the record as it relates to the amended GEICO policy in a pending appeal from this division in the case of Allstate Fire and Casualty Insurance Company v. Chironex Enterprises, Inc. (K. Haury, Broward Circuit Court 2014), [21 Fla. L. Weekly Supp. 641b], FLWSUPP 2107MURP.

It is absolutely clear that the Supreme Court did not review any insurance policy other than the one at issue in Virtual III. Allstate’s claim otherwise is an attempt at subterfuge to lead this Court away from Allstate’s weakness — the actual language of its policy.

Finally, the Court notes that to date there have been over 70 orders entered on this issue by various courts around the state. The Plaintiff has provided the following various Orders finding Allstate’s policy insufficient from the Panhandle to Orange County down to Miami-Dade County: Allstate Property and Casualty Insurance Company & Allstate Insurance Company & Allstate Fire and Casualty Insurance Company v. Neal Clinic of Comprehensive Healthcare, P.I. and Edge Family Chiropractic P.A. (Escambia County, Circuit Court, 2013) FLWSUPP 2107NEAL; Wellness Association of Florida Inc. (Luis Echavarria) v. Allstate Fire and Casualty Insurance Company, Case No. 13-010570 COCE 56 (Pratt, J. Broward County Court) (unpublished) citing Quantum Imaging Holdings, LLC (a/a/o Christine Madia) v. Allstate Fire and Cas. Ins. Co., Case No.: 13-12360 COCE (53)(unpublished decision)(Fla. Broward County, Cnty. Ct. April 22, 2014)(Lee, J., Broward County Court) B. Greenwald Med. P.A. (a/a/o Dennis Killila) v. Allstate Prop. & Cas. Ins. Co., Case No. 13-008238 COCE (50) (unpublished decision)(Fla. Broward County, Cnty. Ct. April. 23, 2014)(Skolnik, J.); Gold Coast Chiropractic Cntr., P.A. (a/a/o Jean Vertus) v. Allstate Indem., Case No. 13-04634 COCE (50) (unpublished decision)(Fla. Broward County, Cnty. Ct. April 23, 2014)(Skolnik, J.); Aventura Wellness & Rehab Cntr., Inc. (a/a/o Rafaela Olivia) v. Allstate Fire and Cas. Ins. Co., Case No.: 11-15745 SP (25) (1) (unpublished decision) (Fla. Miami-Dade County, Cnty. Ct., April 30, 2014)(Gonzalez-Meyer, J.); Aventura Wellness & Rehab Cntr., Inc. (a/a/o Carlos Sanchez) v. Allstate Fire and Cas. Ins. Co., Case No.: 11-05482 SP (25) (1) (unpublished decision) (Fla. Miami-Dade County, Cnty. Ct., April 30, 2014)(Gonzalez-Meyer, J.); Aventura Wellness & Rehab Cntr., (a/a/o Amer Rashid) v. Allstate Fire and Cas. Ins. Co., Case No.: 1115483 SP (25) (1) (unpublished decision) (Fla. Miami-Dade County, Cnty, Ct., April 30, 2014)(Gonzalez-Meyer, J.); Gables MR(A) (a/a/o Javier Perez) v. Allstate Prop. & Cas. Ins. Co., Case No.: 12-14014 SP (25) (1) (unpublished decision) (Fla. Miami-Dade County, Cnty. Ct. April 30, 2014)(Gonzalez-Meyer, J.); Gables MR(A), (a/a/o Arturo Mesa), v. Allstate Fire and Cas. Ins. Co., Case No.: 13-11120 SP (25) (1) (Fla. Miami-Dade County, Cnty. Ct., April 30, 2014)(Gonzalez-Meyer, J.); Gables MR(A). (a/a/o Lisseth M. Guerra) v. Allstate Fire and Cas. Ins. Co., Case No.: 13-11118 SP (25) (1) (unpublished decision) (Fla. Miami-Dade County, Cnty. Ct., April 30, 2014)(Gonzalez-Meyer, J.); Gables MR(A) (a/a/o Liz Ugaz) v. Allstate Fire and Cas. Ins. Co., Case No.: 13-11119 SP (25) (1) (unpublished decision) (Fla. Miami-Dade County, Cnty. Ct. April 30, 2014)(Gonzalez-Meyer, J.); Hialeah Diagnostic, Inc., (a/a/o Urbisia Colon) v. Allstate Fire and Cas. Ins. Co., Case No.: 12-16024 SP (25) (1) (unpublished decision) (Fla. Miami-Dade County, Cnty. Ct., April 30, 2014)(Gonzalez-Meyer. J.); Hialeah Diagnostic, Inc., (a/a/o Juan Duarte) v. Allstate Prop. and Cas. Ins. Co., Case No.: 12-16022 SP (25) (1) (unpublished decision) (Fla. Miami-Dade County, Cnty. Ct., April 30, 2014)(Gonzalez-Meyer, J.); Hialeah Diagnostic, Inc., (a/a/o Olga Garcia) v. Allstate Indem. Co., Case No.: 12-16021 SP (25)(1) (unpublished decision) (Fla. Miami-Dade County, Cnty. Ct., April 30, 2014)(Gonzalez-Meyer, J.); Hialeah Diagnostic, Inc., (a/a/o Yeniaris Pimentel) v. Allstate Indem. Co., Case No.: 12-16020 SP (25) (1) (unpublished decision) (Fla. Miami-Dade County, Cnty. Ct., April 30, 2014)(Gonzalez-Meyer, J.); Hialeah Diagnostic Inc., (a/a/o Eduardo Barrial) v. Allstate Prop. and, Cas. Ins. Co., Case No.: 12-16025 SP (25)(1) (unpublished decision) (Fla. Miami-Dade County, Cnty. Ct., April 30, 2014)(Gonzalez-Meyer, J.); Hialeah Diagnostic, Inc., (a/a/o Herminio Rivera) v. Allstate Fire and Cas. Ins. Co., Case No.: 12-16023 SP (25) (1) (unpublished decision) (Fla. Miami-Dade County, Cnty. Ct., April 30, 2014)(Gonzalez-Meyer, J.); Millennium Diagnostic Imaging Cntr., Inc. (a/a/o Maria Ariosa) v. Allstate Fire & Cas. Ins. Co., Case No.: 11-15488 SP (25) (1) (unpublished decision) Fla. Miami-Dade County, Cnty. Ct., April 30, 2014)(Gonzalez-Meyer, J.); Millennium Diagnostic Imaging Cntr., Inc. (a/a/o Sergio Ariosa) v. Allstate Fire & Cas. Ins. Co., Case No.: 11-15489 SP (25) (1) (unpublished decision) Fla. Miami-Dade County, Cnty. Ct., April 30, 2014)(Gonzalez-Meyer, J.);; Fla. Hosp. Med. Cntr. (a/a/o Eula Henderson) v. Allstate Ins. Co., Case No.: 2012-SC-12741-0 (unpublished decision)(Fla. Orange County, Cnty. Ct., Mar. 19, 2014)(Cameron, J.) ; Fla. Hosp. Med. Cntr. (a/a/o Esther Eum) v. Allstate Prop. and Cas. Ins. Co., Case No.: 2012-SC-12166-0 (unpublished decision) (Fla. Orange County, Cnty. Ct., March 14, 2014)(Allen, J.); Fla. Hosp., Med. Cntr. (a/a/o Ariona Zi) v. Allstate Fire and Cas. Ins. Co., Case No.: 2013-SC-529-0 (unpublished decision)(Fla. Orange County, Cnty. Ct., Mar. 7, 2014)(McGinnis, J.); Stand-Up MRI of Tallahassee. P.A. (a/a/o Candice McMillan, Jeremy, Reddick, et. al.) v. Allstate Ins. Co.; Allstate Fire & Case. Ins. Co. et. al., Case Nos.: 2012-SC-2508; 2012-SC-2682; et. al., (unpublished decision) (Fla. Leon County, Cnty. Ct., February 12, 2014)(Hawkins, J.); Allstate Prop. and Cas. Ins. Co., et. al. v. Neal Clinic or Comprehensive Healthcare P.I. & Edge Family Chiropractic, P.A., Case No.: 13-AP-000005, et. al., (unpublished decision) (Fla. 1st Cir. Ct., Oct. 3, 2013)(appellate capacity)(Duncan, J.); Jeremy Gordon, D.C., (a/a/o Carla Edmonson) v. Allstate Prop. and Cas. Ins. Co., Case No.: 12-23849 CONS (78) (unpublished decision) (Fla. Volusia County, Cnty. Ct., Oct. 2, 2013)(Green, J.); The Imaging Cntr. of West Palm Beach, LLC (a/a/o Susan Agnello) v. Allstate Prop. & Cas. Ins. Co., 21 Fla. L. Weekly Supp. 96a (Fla. Broward County, Cnty. Ct. 2013)(Lee, J.); MR Servs. I, Inc., d/b/a C&R, Imaging of Hollywood (a/a/o Cristina Diaz) v. Allstate Indem Co., 20 Fla. L. Weekly Supp. 1096a (Fla. Broward County, Cnty. Ct., 2013)(Lee, J.); MR Servs. I, Inc.,d/b/a C&R Imaging of Hollywood (a/a/o Gabriel Fraga) v. Allstate Prop. and Cas. Ins. Co., 20 Fla. L Weekly Supp. 1096b (Fla. Broward County, Cnty. Ct., 2013)(Lee, J.); MR Servs. I, Inc., d/b/a C&R Imaging of Hollywood a/a/o Lucia R. Gomez) v. Allstate Fire and Cas. Ins. Co., 20 Fla. L. Weekly Supp. 1096c (Fla. Broward County, Cnty. Ct., 2013)(Lee, J.); Roberto Rivera-Morales, M.D. (a/a/o Blanca Isabel Alvarz) v. Allstate Prop. and Cas. Ins. Co., Case No.: 12-6488 SP (26) (03) (unpublished decision) (Fla. Miami-Dade County, Cnty. Ct. May 13, 2013)(Gonzalez-Paulson, J.); Roberto Rivera-Morales, M.D.,(a/a/o Belinda L. Mosley) v. Allstate Prop. and Cas. Ins. Co., Case No. 12-02366 SP (26) (04) (unpublished decision) (Fla. Miami-Dade County, Cnty. Ct., Jan. 16, 2013)(King, J.); Roberto Rivera-Morales, M.D. a/a/o Danie Bonnelus) v. Allstate Prop. & Cas. Ins. Co., Case No.: 12-03601 SP (26) (04) (unpublished decision)(Fla. Miami-Dade County, Cnty. Ct., Jan. 16, 2013)(King, J.); Roberto Rivera-Morales, M.D., (a/o/o Yaneleisis Batista Granda) v. Allstate Fire & Cas. Ins. Co., Case No.: 12-03602 SP (26) (04) (unpublished decision)(Fla. Miami-Dade County, Cnty. Ct., Jan. 16, 2013)(King, J.); Injury Treatment Cntr. of Coral Springs, Inc., d/b/a Choice Med. Cntrs. (a/a/o Marie Laurette) v. Allstate Prop. and Cas. Co., Case No.: 12-001274 COCE (53)(unpublished decision)(Fla. Broward County, Cnty. Ct., Jan. 10, 2013)(Lee, J.); Central Fla. Med. & Chiropractic Cntr., Inc. (a/a/o Junior Newland) v. Allstate Fire and Cas. Ins. Co., 21 Fla. L. Weekly Supp. 336a (Fla. Volusia County, Cnty. Ct. 2013)(Kelly, J.); Jeremy Gordon, D.C., (a/a/o Philomena Schwartz) v. Allstate Ins. Co., 20 Fla. L. Weekly Supp. 673a (Fla. Volusia County, Cnty. Ct., 2012)(Sanders Jr., J,); Roberto Rivera-Morales, M.D., (a/a/o Gloria Carolina Rincon) v. Allstate Prop. and Cas. Ins. Co., 20 Fla. L. Weekly Supp. 451b (Fla. Miami-Dade County, Cnty. Ct., 2012)(Simon, J.); DPI of North Broward LLC (a/a/o Lauren Goldstein) v. Allstate Fire and Cas. Ins. Co., Case No.: 12-1696 COCL (53) (unpublished decision)(Fla. Broward County, Cnty. Ct., Nov. 1, 2012)(Lee, J.); Neal Clinic of Comprehensive Healthcare, P.L. (a/a/o Edward Hackett v. Allstate Property and Cas. Ins. Co., 20 Fla. L. Weekly Supp. 150a (Fla. Escambia County, Cnty. Ct. 2012)(Kinsey, J.); Edge Family Chiropractic, P.A. d/b/a Edge Family Chiropractic (a/a/o Barbara Jones) v. Allstate Ins. Co., 20 Fla. L. Weekly Supp. 149c (Fla. Escambia County, Cnty. Ct., 2012)(Kinsey, J.); Fla. Wellness & Rehab. Cntr. (a/a/o Isolina E. Portal) v. Allstate Ins. Co., Case No.: 12-8478 SP (25) (unpublished decision) (Fla. Miami-Dade County, Cnty. Ct., Oct. 24, 2012)(Marino Pedraza, J.); Timothy Kehrig, D.C., P.A. v. Mercury Ins. Co. of Fla., Case No.: 502012 AP 000060 (unpublished decision)(Fla. 5th Cir. Ct., May 30, 3014)(appellate capacity).²

The percentage of courts that have found the provision ambiguous as opposed to clearly and unambiguous electing to limit reimbursements in accordance with the fee schedules under 627.736(5)(a)2 is approximately 50-50. Further, the Orders in favor of Allstate such as Allstate Property and Casualty Insurance Co. v. Royal Diagnostic Center Inc. 13-073 AP (Dade Circuit. 2014, J. Rodney Smith) [21 Fla. L. Weekly Supp. 627a] rely on the faulty premise that the holding in Virtual approved a GEICO policy that was not at issue and not part of the record in the Supreme Court. It is absolutely clear that the Supreme Court did not review any insurance policy other than the one at issue in Virtual III. Allstate’s claim otherwise is an attempt at subterfuge to lead this Court away from Allstate’s weakness — the actual language of its policy. Although this split of decision does not create any presumptions regarding the outcome of this dispute it is certainly persuasive that if trained. legal minds are unable to agree as to whether the provision is clear and unambiguous, the average insured could never clearly understand what his or her benefits are. In Security Ins. Co. Of Hartford v. Investors Diversified Ltd., Inc., 407 So.2d 314 (Fla. 4th DCA 1981), the court 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 the essentially the same language.”

Security Insurance, supra at 316 (Emphasis in original).

The “proof of the pudding” in the instant case is that Quantum Imaging has demonstrated multiple orders and circuit court appellate opinions have reached diverse conclusions with regard to Allstate’s policy language. In and of itself, that diversity demonstrates that Allstate’s policy is far from clear and unambiguous in its purported attempt to “elect” the reimbursement limitations set forth in §627.736(5)(a)2. Similarly, in Stroehmann v. Mutual Life Ins. Co. of New York, 300 U.S. 435, 57 S. Ct. 607, 81 L. Ed. 732 (1937), the Supreme Court found a life insurance policy ambiguous, stating in pertinent part:

“Examination of the words relied upon to show an exception to the incontestability clause of the policy discloses ample cause for doubt concerning their meaning. The 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. . . . Without difficulty respondent could have expressed in plain words the exception for which it now contends. It has failed, we think, so to do. And applying the settled rule, the insured is entitled to the benefit of the resulting doubt.”

Stroehman, supra at 441 (Emphasis added).

Based on these findings, this Court concludes that Allstate’s policy fails to satisfy the Virtual requirements for a clear and unambiguous election of FS 627.736(5)(a)(2)(a-f) methodology as its payment method. Accordingly, the policy at issue is construed against Allstate and Allstate is obligated to pay 80% of the “reasonable expenses.”

ORDERED AND ADJUDGED that the Plaintiff’s Motion is GRANTED and the Defendant’s Motion is DENIED and the Plaintiff QUANTUM IMAGING HOLDINGS, LLC A/A/O ELDA ALUME recover from the Defendant ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY the sum of $487.26, together with prejudgment interest in the amount of $ 90.43, for a total amount of $ 577.69 for all of which sums let execution issue.

The Plaintiff is entitled to recover the costs of this action and reasonable attorney’s fees under 627.428, Florida Statutes. This Court retains jurisdiction to determine the amounts of costs and attorney’s fees due Plaintiff.

__________________

¹See § 627.413 (1), Fla. Stat (2011) (every policy must specify all conditions on the insurance).

²Although not an Allstate case, the Circuit Court in Palm Beach County held the following similar policy language “80% of all reasonable expenses allowed by the No-Fault Law, subject to the applicable fee schedules and payment limitations” to be ambiguous as the Court held “The policy’s reference to ‘applicable fee schedules and payment limitations’ in the No-Fault law does not shed any light as to which reimbursement schedule the Insurer was attempting to invoke; it could be interpreted as referring to either. Both reimbursement schedules incorporate external ‘fee schedules’ — the default schedule references “various federal and state medical fee schedules applicable to automobile and other insurance coverages,” 627.736(1)(a). Fla. Stat (2010), while the permissive schedule invokes Medicare fee schedules, § 627.736(5)(2)(f), Fla.Stat. (2010). Both of the reimbursement schedules function as ‘payment limitations’ ”.

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