21 Fla. L. Weekly Supp. 96a
Online Reference: FLWSUPP 2101AGNEInsurance — Personal injury protection — Coverage — Medical expenses — Policy language 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
THE IMAGING CENTER OF WEST PALM BEACH, LLC a/a/o SUSAN AGNELLO, Plaintiff, vs. ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 12-25095 COCE 53. September 25, 2013. Honorable Robert W. Lee, Judge. Counsel: Leandro L. Carvalho, Hicks, Motto & Ehrlich, Palm Beach Gardens, for Plaintiff. Rachel M. LaMontagne, Shutts & Bowen LLP, Miami, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come to be heard before the Court on hearing on September 25, 2013 on Plaintiff’s Motion for Final Summary Judgment, and having reviewed the motion; stipulated and admitted facts; having heard argument; reviewed the relevant legal authorities and been fully advised in the premises, the Court finds as follows:
This case involves competing interpretations of a PIP insurance policy. The Plaintiff’s interpretation would result in Allstate’s having to pay more on the individual medical bills submitted, and of course Allstate’s would result in a finding that the lesser amount it paid complied with the policy.
The language of Allstate’s policy, identified on the jacket as AU10636-1, provides that Allstate will pay as follows, as pertains to personal injury protection (PIP) coverage:
“Medical Expenses: Eighty Percent of lawfully rendered expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services. Treatment and services provided in accordance with a recognized religious method of healing are also covered.”
The “Florida Amendatory Endorsement — AU14230” issued by the Defendant in this case states that Allstate amends on the “Additional Definitions Under Part III” portion of the above referenced to automobile insurance policy, and reads as follows:
“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.
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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 argues 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. Allstate chose to pay the submitted bills at the 200% Medicare cap, an option provided by the No-Fault Law. The Plaintiff argues 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.” Allstate agrees that if the Plaintiff’s interpretation is correct, it would owe Plaintiff an additional sum towards the medical bills submitted. Allstate will not contest that what the Plaintiff billed is what the market of Broward County typically would deem reasonable.
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. See also Geico General Insurance Company v. Virtual Imaging Services, Inc. etc., 38 Fla. L. Weekly S517a (Fla. 2013).
Moreover, Virtual Imaging requires that the choice of methodology be done in a manner so that the insured patient and health care providers would be aware of it. Id. The Court finds that 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 insure patient and health care providers would be aware of it, even if Allstate’s “subject to” language could be interpreted to incorporate the Medicare fee cap.
The Court notes that no appellate court has yet addressed this precise issue regarding Allstate’s policy. However, the parties provided several trial level decisions, all of which have found that Allstate’s language does not meet the requirements of Virtual Imaging, although perhaps for different reasons. See Jeremy Gordon, D.C., a/a/o Philomena Schwartz v. Allstate Insurance Company, 20 Fla. L. Weekly Supp. 673a (7th Cir. Ct. 2013); Roberto Rivera-Morales a/a/o Gloria Carolina Rincon v. Allstate Property and Casualty Insurance Company, 20 Fla. L. Weekly Supp. 451b (11th Cir. Ct. 2012); DPI of North Broward, LLC., a/a/o Lauren Goldstein v. Allstate Fire and Casualty Insurance Company, 20 Fla. L. Weekly Supp. 161a (17th Cir. Ct. 2012); Neal Clinic of Comprehensive Healthcare, P.L., a/a/o Edward Hackett v. Allstate Property And Casualty Insurance Company, 20 Fla. L. Weekly Supp. 150a (1st Cir. Ct. 2012); Edge Family Chiropractic, P.A. d/b/a Edge Family Chiropractic a/a/o Barbara Jones v. Allstate Insurance Company, 20 Fla. L. Weekly Supp. 149c (1st Cir. Ct. 2012).
ORDERED and ADJUDGED that the Plaintiff’s Motion for Final Summary Judgment is GRANTED. As the both parties have stipulated that this ruling is dispositive of the case, the Plaintiff shall submit a proposed final judgment.
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