21 Fla. L. Weekly Supp. 75c
Online Reference: FLWSUPP 2101BROWInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy that references “applicable fee schedule,” but is devoid of any reference to section 627.736(5)(a)2.f or specific limitations of which insurer intends to avail itself, does not clearly and unambiguously notify insured and medical provider of insurer’s intent to limit reimbursement to permissive statutory fee schedule
STAND-UP MRI & DIAGNOSTIC CENTER, P.A., asassignee of Tamara Brown, Plaintiff(s), v. ASSURANCEAMERICA INSURANCE COMPANY, Defendant(s). County Court, 7th Judicial Circuit in and for Volusia County, Division 82. Case No. 2012-34575-2013. May 23, 2013. Christopher Kelly, Judge. Counsel: Rutledge M. Bradford, Bradford Cederberg, P.A., Orlando, for Plaintiff. Timothy S. Kazee, Deland, FL, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS MATTER having come before this Honorable Court for hearing on May 13, 2013 on Plaintiff’s and Defendant’s competing motions for summary judgment and having heard the arguments of counsel and being otherwise fully advised in the premises the Court finds as follows:FINDINGS OF FACT
1. The parties entered into a Joint Stipulation of Facts and Exhibits and the Court hereby adopts those facts and exhibits as follows:
a. On February 24, 2012, Tamara Brown (“Brown”) was involved in a motor vehicle accident.
b. On February 24, 2012, Brown was covered by a policy of insurance issued by ASSURANCEAMERICA INSURANCE COMPANY (“Defendant”) that was in full force and effect.
c. The insurance policy provided Personal Injury Protection (PIP) coverage in the amount of $10,000 and the policy had a $1,000 deductible inclusive of residential relatives. There was no medical payments coverage on the policy.
d. As a result of the February 24, 2012 accident, Brown presented to Stand-Up MRI and Diagnostic Center, P.A., (Stand-Up) on May 1, 2012 and received treatment and care from Plaintiff.
e. The services rendered by Stand-Up were for CPT Codes 72148. The medical services were reasonable, related and medically necessary.
f. Stand-Up charged $1600.00 for its services. Stand-Up’s charges were reasonable.
g. Defendant utilized the Medicare Fee Schedule to reduce Stand-Up’s bill from $1,600.00 to $1,066.28. Defendant then paid eighty percent (80%) of the reduced amount, and issued payment in the amount of $853.02.
h. The parties agree that the facts are not in dispute and that the above-described exhibits are admissible.
i. Defendant waives any and all Affirmative Defenses that have not been withdrawn, except that its policy enables Defendant to pay pursuant to the fee schedule.
j. The issue in this case is “whether the Defendant’s insurance policy, as written, allows the Defendant to utilize the Medicare Fee Schedule in Fla.Stat. §627.736(5)(a)(2).” If the Court answers the question in the affirmative, then the Defendant is entitled to Final Summary Judgment. If the Court answers the question in the negative, then the Plaintiff is entitled to Final Summary Judgment in the amount of $426.98 for underlying benefits due and all statutory interest due.
ANALYSIS
The sole dispute for the Court to resolve is whether the Defendant’s insurance policy, as written, allows the Defendant to utilize the permissive fee schedule limitations (“Fee Schedule”) set forth in Fla. Stat. § 627.736(5)(a)(2). The Plaintiff contends that Defendant’s policy language is insufficient to permit the Defendant to limit reimbursement pursuant to the Fee Schedule. The Defendant contends that its policy clearly and unambiguously elects to limit liability pursuant to the Fee Schedule.Florida Statutes
The Florida legislature established two separate and distinct payment methodologies. The first methodology is found in 627.736(1)(a) and 627.736(5)(a)(1) which provides:
(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 Persons. —
(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 injured party only a reasonable amount pursuant to this section . . . .
The second methodology is permissive and is found at 627.736(5)(a)(2)(f) and provides:
2. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
. . .
f. For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B.
Defendant’s Policy Language
The Defendant’s insurance policy, PART II — PERSONAL INJURY PROTECTION (“PIP”), describes the amounts Defendant will pay for medical expenses as follows:
Subject to the limits of liability, if you paid the premium for Personal Injury Protection (“PIP”) when due, we will pay:
1. 80% of all medical expenses;
The Defendant points to three separate provisions within the policy to support its argument that it clearly and unambiguously adopted the Fee Schedule, as permitted by Florida Statute, thereby limiting its obligation to otherwise reimburse 80% of all medical expenses.
The first is under “Additional Terms for Part II”, which provides as follows: PIP is subject to the following:
2. Any dispute as to medical expenses will be resolved between the service provider and us. If the insured person is sued for payment for any medical expense that we refuse to pay because:
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b. The fee exceeds the applicable fee schedules under federal or state law for medical expenses;
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we will defend the insured person with an attorney of our choice. We will pay defense costs and any judgment against the insured person up to our limit of liability. . . .
The second is under “Additional Definitions for Part II Only” which provides as follows:
5. “Medical expenses” means reasonable expenses for medically necessary:
a. Medical, surgical, X-ray, dental, and rehabilitative services. . .
when allowed by the No-Fault Law and subject to the applicable fee schedules and payment limitations that apply.
The third is under the “Limit of Liability” which provides asfollows:
When determining the amount that we will pay under this coverage, we will apply any limitation and federal or state medical fee schedules applicable to automobile or other insurance coverages permitted by law. No one shall be entitled to payment for medical expenses incurred for services, supplies, treatment or care in any amount that is more than the maximum reimbursement allowance set forth in the fee schedules, payment limitations, and other payment guidelines of the No-Fault Law and/or any schedules and limitations under federal or state law for medical expenses.
CONCLUSIONS OF LAW AND RULING
Both the Third and Fourth District Courts of Appeal have addressed the issue before this Court, finding that an insurer intending to limit its reimbursement of medical expenses utilizing the permissive fee schedule limitations set forth in Fla. Stat. 627.736 (5)(a)(2), must “clearly and unambiguously” set forth the limitation in the policy. Kingsway Amigo Insurance Company v. Ocean Health, Inc., 63 So.3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a]; DCI MRI, Inc. v. Geico Indem. Co. 79 So.3d 840 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D170e]; and Geico v. Virtual Imaging Services, Inc., 79 So. 3d 55 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a]. Moreover, any such limitation must be done so “in a manner so that the insured patient and healthcare providers would be aware of it.” Geico v. Virtual Imaging 79 So.3d at 57 (quoting State Farm Insurance Co. v. Nichols, 21 So.3d 904 (Fla. 5th DCA 2009) [34 Fla. L. Weekly D2275b]).
Defendant contends that the three separate provisions in its policy that reference “applicable fee schedules,” is a clear and unambiguous election to limit its liability under Fla. Stat. §627.736(5)(a)(2)(f). However, the policy is devoid of any reference whatsoever to §627.736(5)(a)(2)(f) or the specific limitations of which Defendant intends to avail itself. If Defendant’s intent was to limit its liability to something other than 80% of reasonable medical expenses, it must do so clearly and unambiguously, and passing references to otherwise undefined “applicable fee schedules,” which must be searched out in various provisions of the policy, simply do not satisfy the mandates set forth in Kingsway v. Ocean Health, DCI MRI v. Geico and Geico v. Virtual Imaging.
Insurance policies are construed according to their plain meaning, with any ambiguities construed against the insurer. State Farm Mutual Auto. Ins. Co. v. Menendez, 70 So.3d 566, 570 (Fla. 2011) [36 Fla. L. Weekly S469a]. The Court finds that Defendant’s policy does not clearly and unambiguously notify the insured patient and the medical provider of Defendant’s intent to limit reimbursement pursuant to Fla. Stat. §627.736(5)(a)(2)(f).
WHEREFORE, it is
ORDERED AND ADJUDGED that:
A. The Plaintiff’s Motion for Final Summary Judgment is GRANTED;
B. The Defendant’s Motion for Final Summary Judgment is DENIED;
C. Final Judgment is hereby entered in favor of the Plaintiff, STAND-UP MRI & DIAGNOSTIC CENTER, P.A., as assignee of Tamara Brown, wherein Plaintiff shall recover from Defendant, ASSURANCEAMERICA INSURANCE COMPANY, the total sum of $426.98 for underlying benefits due and all statutory interest, which sum let execution issue;
D. Plaintiff is entitled to its reasonable attorneys’ fees and costs; and
E. The Court reserves jurisdiction to determine the amount of attorneys’ fees and costs to Plaintiff pursuant to Fla. Stat. §§627.736, 627.428 and 57.041.
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