22 Fla. L. Weekly Supp. 270a
Online Reference: FLWSUPP 2202GALAInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy that subjects payments to any and all limitations authorized by PIP statute, including all fee schedules, clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule
ADVANCE HEALTH SERVICES III, INC. a/a/o Nery Gala, Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2012-5417-SP-26 (03). March 19, 2014. Michaelle Gonzalez-Paulson, Judge. Counsel: Zachary A. Hicks, Samole, Berger & Hicks, P.A., Miami, and Daniel M. Samson, Samson Appellate Law, for Plaintiff. Douglas G. Brehm, Shutts & Bowen LLP, Miami, for Defendant.
ORDER GRANTING ALLSTATE’S MOTION FORSUMMARY JUDGMENT AND DENYING PLAINTIFF’SMOTION FOR SUMMARY JUDGMENT
This matter came before the Court upon the above parties’ cross motions for Summary Judgment. The Court, having heard argument of the Parties on January 27, 2014, and being otherwise duly advised in the matter, GRANTS Allstate’s Motion for Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment in the above case. The Court finds as follows:
1. Plaintiff’s Complaint challenges Allstate’s ability to limit reimbursements for medical services covered under the Personal Injury Protection (“PIP”) portion of Allstate’s policy of automobile insurance. Allstate contends that its policy specifically and expressly notifies its policyholder (as well as any assignee providers) that Allstate has elected to apply the fee schedule limitations to PIP reimbursements that are authorized under the No-Fault Statute.
2. The Court finds that Allstate’s policy language complies with the requirements set forth by the Florida Supreme Court and constitutes an enforceable election to apply the reimbursement limitations permitted under Fla. Stat. 627.736(5)(a)(2). The Court rejects Plaintiff’s contention that Allstate’s policy language is unclear and/or ambiguous.UNDISPUTED FACTS
3. The parties agree that instant case involves no disputed facts. The facts of this case are set forth more fully in the Joint Stipulation of Fact that was filed in this case and may be summarized as follows: Allstate’s insured, Nery Gala was involved in an automobile accident and sustained injuries that were covered under Allstate’s policy and the corresponding provisions of Fla. Stat. 627.736 (2008). Pursuant to a valid assignment of benefits, Plaintiff, P.T.R. & W. SOUTH, provided medical services to Nery Gala. The parties agree that these medical services were reasonable, related and necessary and otherwise covered under Allstate’s policy. Allstate reimbursed all invoices received from Plaintiff relating to this claim pursuant to the Medicare Part B Participating Physicians Fee Schedule.
4. The relevant portion of Allstate’s policy provides:
In accordance with the Florida Motor Vehicle No-Fault Law, Allstate will pay to or on behalf of the injured person the following benefits. . .
1. Medical Expenses.
Eighty Percent of reasonable expenses for medically necessary medical, surgical, X-ray, dental and rehabilitative services. . .
. . . .
Any amounts payable under this coverage shall be subject to any and all limitations authorized by Fla. Stat. § 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.
CONCLUSIONS OF LAW
5. In GEICO Gen. Ins. Co. v. Virtual Imaging Services, 2013 WL 3332385 (Fla. No. SC12-905, July 3, 2013) [38 Fla. L. Weekly S517a], the Florida Supreme Court held: “We conclude that the insurer was required to give notice to its insured by electing the permissive Medicare fee schedules in its policy before taking advantage of the Medicare fee schedule methodology to limit reimbursements.”
6. Plaintiff contends that Allstate’s policy language does not constitute a valid election because the reimbursement limitation language in Allstate’s policy is not sufficiently clear and unambiguous.
7. The Court rejects Plaintiff’s argument that Allstate’s language was unclear and/or ambiguous. The Court does not believe that Allstate was required to paste the statute into its policy. There is only one reimbursement limitation section within 627.736 — section 5(a)(2). And there is no ambiguity within the statute as to which specific limitation (i.e., which of the subsections, (a)-(f)) will apply to a given medical service. Each limitation applies to its own category of medical procedure, and a medical service can fit into only one of the subsections in (5)(a)(2)(a)-(f).
8. Allstate’s use of the word “shall” in its policy removes any ambiguity regarding whether the reimbursement limitations authorized by the statute shall be applied. Allstate’s policy affirmatively and expressly adopted the fee schedule limitations that the Legislature had authorized. It issued a policy that affirmatively informed its insureds that PIP benefits under that policy would be limited as authorized by the Florida No-Fault statute, including all fee schedules.
Accordingly, Allstate’s Motion for Summary Judgment in this case is GRANTED, and Plaintiff’s Motion for Summary Judgment in this case is DENIED. Final Judgment is entered in favor of Allstate in this case. Plaintiff shall take nothing by this action, and Defendant shall go hence without day.
