22 Fla. L. Weekly Supp. 743a
Online Reference: FLWSUPP 2206WILCInsurance — Personal injury protection — Deductible — Proper formula for payment of PIP claim requires that deductible be subtracted from total billing amount before statutory fee schedule reductions are applied
CHAMBERS MEDICAL GROUP, INC., As assignee of SHEILA WILCOX, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County, Civil Division. Case No. 2013-SC-002764-NC. October 31, 2014. Honorable Phyllis R. Galen, Judge. Counsel: Anthony D. Barak, Law Offices of Barak & Goldberg, P.A., Lakewood Ranch, for Plaintiff. Robert D. Adams, for Defendant.
[Affirmed. 2/23/16]
ORDER GRANTING PLAINTIFF’SMOTION FOR FINAL SUMMARY JUDGMENTAND DENYING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS MATTER, having come to be heard by this Honorable Court on October 3, 2014, regarding Plaintiff’s and Defendant’s competing Motions for Final Summary Judgment as it relates to Defendant’s application of the policy deductible. The Court, having reviewed the Motions from both parties, heard extensive arguments of counsel, reviewed the proposed orders from both parties and having reviewed the court file, and being otherwise fully advised in the premises, finds as follows:
FINDINGS OF FACT
The Court adopts these findings of fact. The Plaintiff filed a breach of contract as assignee of Shelia Wilcox, (herein after referred to as “Wilcox” or “patient”) for unpaid and overdue personal injury protection (“PIP”) benefits. On September 7, 2012, Wilcox was involved in a motor vehicle accident, for which Defendant, Progressive, provided PIP coverage. The subject policy of insurance that was issued by Defendant was in full force and effect on September 7, 2012 and provided $10,000.00 in PIP benefits to Wilcox with a $1,000.00 deductible.
On September 17, 2012, Wilcox presented to Plaintiff, Chambers Medical Group (hereinafter referred to as “Chambers” or “Plaintiff”), for treatment of injuries sustained in the subject motor vehicle accident. On Wilcox’s initial visit she executed an Assignment of Benefits wherein she assigned her rights and benefits under the subject policy of insurance to Plaintiff. Plaintiff rendered treatment to Wilcox and billed Defendant $2,872.00 for dates of service September 17, 2012 through November 14, 2012.
For dates of service September 17, 2012 through November 14, 2012, Defendant contends that it calculated the “allowable amount” of Plaintiff’s charges pursuant to F.S. §627.736(5)(a) 2.f. (2011)(Permissive Fee Schedule at 200% of Medicare Part B participating physician fee schedule) and the subject policy. The “allowable amount” for dates of service September 17, 2012 through November 14, 2012 totaled $2,036.86. Defendant then applied $771.02 of Wilcox’s $1,000.00 deductible to the “allowable amount” and then made a payment to Plaintiff in the amount of $1,012.67.
For dates of service September 17, 2012 through November 14, 2012, Plaintiff contends that Defendant should have applied the remaining portion of the patient’s deductible to the total billed amount (i.e. $2,872.00 – $771.02 = $2,100.98) pursuant to F.S. §627.739, before applying any fee schedule limitations to reimbursement of Plaintiff’s charges pursuant to §627.736, Florida Statutes and the subject policy.
Plaintiff brought this action under a valid assignment of benefits to recover unpaid reimbursement for the medical services provided to Wilcox from September 17, 2012 through November 14, 2012.
The sole legal issue to be determined by this Court is whether the deductible should first be applied to 100% of the initial charges billed by the Plaintiff for medical services rendered to Wilcox pursuant to F.S. §627.739 before applying any fee schedule limitations to reimbursement of Plaintiff’s charges pursuant to F.S. §627.736; or whether the Defendant can first apply the fee schedule limitations contained in F.S. 627.736(5)(a) 2.f. (2011) and then subtract Wilcox’s deductible.CONCLUSIONS OF LAW(The deductible is to be subtracted fromthe amount billed before any applicable reductionsand/or percentage applications are applied)
The Court adopts the Plaintiff’s arguments and conclusions of law. In arriving at this conclusion the Court first looked at the plain and unambiguous language of the statutes in question cited below. The legislature reenacted the New Florida Motor Vehicle No-Fault Law, which amended F.S. 627.736(5)(a) and added F.S. 627.736(5)2.f, which reads as follows:
(5) CHARGES FOR TREATMENT OF INJURED PERSONS. —
(a) 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 applicable Medicare Part B fee schedule. However, if such services, supplies, or care are not reimbursable under Medicare Part B, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care are provided. Services, supplies, or care that are not reimbursable under Medicare or workers’ compensation are not required to be reimbursed by the insurer.
More importantly, and longstanding in the Florida Motor Vehicle No-Fault law, is Florida Statute §627.739(1) and (2) (2003), which states, inter alia:
1. The named insured may elect a deductible or modified coverage or combination thereof to apply to the named insured alone or to the named insured and dependent relatives residing in the same household, but may not elect a deductible or modified coverage to apply to any other person covered under the policy.
2. Insurers shall offer each applicant and to each policyholder, upon the renewal of an existing policy, deductibles, in the amounts of $250, $500, and $1000. The deductible amount must be applied to 100% of the expenses and losses described in s. 627.736. After the deductible is met, each insured is eligible to receive up to $10,000 in total benefits described in s. 627.736(1). However, this subsection shall not be applied to reduce the amounts of any benefits received in accordance with s. 627.736(1)(c). (emphasis added).
The language contained in subsections (1) and (2) of Florida Statute §627.739, supra have remained unchanged since the 2003 amendments through present day, and is contained in the re-enacted Florida Motor Vehicle No-Fault Law, which took effect on January 1, 2008. Thus, the legislature was aware of this statutory provision when it enacted the fee schedule language at F.S. 627.736(5)2.f, in the No-Fault law, and chose not to change the language of the application of the deductible to 100% of the expenses and losses; rather than apply 100% of any “allowed fee schedule amount” as Defendant would like this Court to believe.
Prior to the 2003 amendment to F.S. 627.739, supra, the deductible was applied to “benefits otherwise due.” The Court in International Bankers Insurance Company v. Arone, et. al., 552 So.2d 908 (Fla. 1989) found that the statutory language “benefits otherwise due” required 80% reduction under the policy before the deductible was applied. However, the statute did change in 2003, and specifically deleted the words “benefits otherwise due,” and instead now reads that the deductible should be applied to 100% of the expenses and losses as defined in section 627.739. Section 627.736 no longer has the qualifying phrase “otherwise due.” See William J. Gogan M.D. a/a/o Tara Ricks v. USAA Gen. Indemnity Co. 21 Fla. L. Weekly Supp. 97c (Fla. Brow. Cty. Ct. 2013) citing New Smyrna Imaging, LLC v. Garrison Property and Casualty Ins. Co. 20 Fla. L. Weekly Supp. 77a (18th Jud. Cir. 2012).
Additionally, the very term “100 percent” means to encompass the entire body. It is illogical to think the legislature intended to include the word “100%” just to redirect the parties to reduce it to 80% in the same sentence. The words described in 627.736 modify the phrase “expenses and losses” and do not modify “100 percent.” The Court finds that the plain meaning of the statute is that the deductible must first be applied to the total bill and then the insurance company is entitled to adjust the payment accordingly. Id.
In M&M Medical Center, Inc. v. State Farm et. al., Case No. 10-21450-SP-23 (unpublished opinion out of Dade County, October, 2009), the Court citing Flagler Hospital v. Progressive et. al., held that the proper formulation for the subtraction of the deductible is to subtract it from the total billing amount before the reductions pursuant to section 627.736 are applied. See Heather Dussault et. al. v. Windhaven et. al., 21 Fla. L. Weekly Supp. 436b (Hillsborough County Court, July 9, 2013)(The plain, unambiguous and unequivocal language of §627.739(2) requires the deductible amount must be applied to 100 percent of the expenses and losses described in s.627.736. This Court is not permitted to employ other rules of statutory construction.)
Thus, under the applicable principles of statutory construction and the plain, unambiguous and unequivocal language of Florida Statute §627.739 (2008), insurers must apply 100% of the billed amount of the medical expenses to the deductible before applying any permissive reimbursement limitations (i.e. percentages) contained in Florida Statute §627.736(5)(a)2. Emergency Physicians of Central Florida, LLP a/a/o Asmaa Karani v. Progressive Select Ins. Co. 20 Fla. L. Weekly Supp. 689a (Fla. Orange Cty. 2013); Tampa Bay Imaging a/a/o Heather Dussault v. Windhaven Insurance Company, 12-CC-010093 (Fla. Hills. Cty. Ct. 2013) [21 Fla. L. Weekly Supp. 436b].
Finally, it is worth noting that the language of Florida Statute §627.739 (2008), nor Defendant’s policy, state that the deductible shall be applied “after application of the payment methodology as found in §627.736(5)(a)2.,” or any other payment methodology.
ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Summary Judgment as to Defendant’s Misapplication of the Deductible pursuant to Florida Statute 627.739(2) is GRANTED and Defendant’s Motion for Final Summary Judgment is DENIED. The Court reserves jurisdiction on attorney’s fees and costs Plaintiff shall recover in this matter, as well as, to further approve, authorize, and grant any and all remaining relief in this proceeding.
