21 Fla. L. Weekly Supp. 979a

Online Reference: FLWSUPP 2110IMAGInsurance — Personal injury protection — Coverage — Medical expenses — Insurer could use Medicare fee schedules to determine reasonable amount to be paid in PIP benefits notwithstanding failure to elect use of fee schedules in policy, but fee schedules cannot be sole basis for determination of reasonable amount — No error in striking affidavit of expert who used fee schedules as sole basis to determine reasonable amount that should be paid and entering summary disposition in favor of medical provider

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellants, v. IMAGING CENTER OF PENSACOLA, INC. a/a/o Anthony Perkins, Mary Perkins, Paula Padilla, and Barbara Green, Appellees. Circuit Court, 1st Judicial Circuit (Appellate) in and for Escambia County. Case Nos. 2012-AP-000052, 2012-AP-000053, 2012-AP-000054, and 2013-AP-000003. County Court Case Nos. 2012-SC-001755, 2012-SC-001759, 2012-SC-001760, and 2012-SC-001762. March 5, 2014. Counsel: Nancy W. Gregoire and Charles F. Beall, Jr., for Appellants. Robert N. Heath, Jr., Robert N. Heath, P.A., Pensacola; and Louis K. Rosenbloum, for Appellees.

OPINION AFFIRMING THE LOWER COURT’SORDERS AND FINAL JUDGMENTSINTRODUCTION

(DUNCAN, Judge.) Appellant State Farm (herein “State Farm”) appeals orders granting Appellee Imaging Center of Pensacola, Inc.’s (herein “Imaging”) Motions for Summary Disposition in Case No.: 12-SC-1755, 12-SC-1759, 12-SC-1760, and 12-SC-1762 and appeals the Final Judgments entered in favor of Imaging in the aforementioned cases. State Farm seeks reversal of the lower court’s Orders Granting Summary Judgment¹ and the Final Judgments.

ANALYSIS

State Farm raises three issues in its appeal. First, State Farm asserts the Medicare Part B fee schedules referenced in Section 627.74(5)(a)2a-f, Florida Statutes (2008) can be used as a factor to determine the “reasonable amount” to be paid pursuant to Section 627.736(5)(a)1 even when the insurer elects in its insurance contract to pay a “reasonable amount” rather than pay pursuant to the fee schedules. Second, State Farm asserts the trial court erred when it struck the affidavits of Darrell Spell which were filed in opposition to Imaging’s Motions for Summary Disposition. State Farm claims that these affidavits, which rely solely upon the fee schedules to determine the reasonable amount to be paid, created an issue of fact that precludes summary disposition. Third, State Farm asserts it was denied due process because it was not permitted to seek discovery prior to the hearing on Imaging’s Motions for Summary Disposition.

Section 627.736, Florida Statutes created a methodology for reimbursements of medical services under PIP claims. Section 627.736(5)(a)1 mandates that a reasonable amount be paid for medical services, while Section 627.736(5)(a)2a-f permits an insurer to reimburse for medical services based upon the fee schedules described therein. Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63, 67-68 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a]. In Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc. 2013 WL 3332385, (July 3, 2013) [38 Fla. L. Weekly S517a], the Florida Supreme Court held that if an insurer elects to reimburse medical services pursuant to the Medicare fee schedules described in Section 627.736(5)(a)2a-f, it is necessary that its policy give notice of that election to the insured. Id. The Court also emphasized that “the insurer must clearly and unambiguously elect the permissive payment methodology in order to rely on it.” Id. Applying the reasoning of Virtual Imaging Services to the instant case, this Court finds that State Farm did not elect the option to reimburse medical services pursuant to the Medicare fee schedules described in Section 627.736(5)(a)2a-f, but rather chose to pay a reasonable amount for medical services pursuant to Section 627.736(5)(a)1.

State Farm claims that it is permitted to rely upon medicare fee schedules in determining the reasonable amount to be paid for medical services, even when it elects not to pay pursuant to Section 627.736(5)(a)2a-f in its insurance contract. In opposition to the Motions for Summary Disposition, State Farm’s expert, Darrell Spell, relied upon these fee schedules as the basis to attack Imaging’s expert affidavits, and to opine that State Farm had paid a reasonable amount for the medical services of its insured. State Farm claims that Spell’s affidavits created genuine issues of material facts to preclude summary disposition in favor of Imaging.

The Court finds that medicare fee schedules under State Farm’s policy could be used as a part of State Farm’s methods and formulas used to determine what reasonable amount should be paid if Section 627.736(5)(a)1 applies to the policy. However, these schedules cannot be the sole basis for the “reasonable amount” determination. In this case, State Farm used the schedules as its sole basis to argue that the amounts Imaging sought for its medical services were not reasonable. The manner in which State Farm used the fee schedules in determining the amounts it believed were reasonable for the medical services provided runs contrary to the option State Farm elected when it entered into its insurance contract with its insured. What State Farm attempted to do in the instant case was to rely upon a method of payment it previously rejected in its insurance contract. To permit an insurer who opted not to pay the medical expenses of its insured pursuant to the medicare fee schedules to use those same fee schedules as the sole basis for the determination of reasonable expenses would circumvent the legislative intent of the statute as defined by the Florida Supreme Court in Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc. 2013 WL 3332385, (July 3, 2013) [38 Fla. L. Weekly S517a]. Therefore, the Court affirms the summary dispositions entered by the trial court. Also, because Mr. Spell used the fee schedules as his sole basis to determine the reasonable amount which State Farm believed should be paid, it was proper for the trial court to strike his affidavits.

State Farm also asserts it was not afforded due process in this case. Upon review of the record, this Court does not find the trial court violated the due process rights of State Farm.

Therefore, it is ORDERED:

The trial court’s orders and final judgments are hereby AFFIRMED.

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¹The trial court’s orders are entitled “Order Granting Summary Judgment”. However, such orders were entered pursuant to Imaging’s Motions for Summary Disposition. For purposes of this appeal this Court will treat such orders as orders granting summary disposition.

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