22 Fla. L. Weekly Supp. 284a
Online Reference: FLWSUPP 2202CAMBInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy providing that insurer will either pay 80% of reasonable expenses or pay based on permissive statutory fee schedule does not provide clear and unambiguous notice of intent to limit reimbursement to statutory fee schedule
CORAL SPRINGS PHYSICIANS ASSOCIATES, INC. as assignee of Jonathan Cambeiro, Plaintiff, vs. MERCURY INDEMNITY COMPANY OF AMERICA, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-000398 CONO 71. January 16, 2014. Louis H. Schiff, Judge. Counsel: Cris Evan Boyar, Boyar and Freeman, P.A., Coral Springs, for Plaintiff. Robert Albert, for Defendant.
REVERSED. FLWSUPP 2504CAMB (Mercury Indem. Co. of America v. Coral Springs Physicians Associates (a/a/o Cambeiro, CACE14-019185 (AP), 6-7-2017)
FINAL JUDGMENT IN FAVOR OF THE PLAINTIFF
THIS CAUSE having come before the court on the Plaintiff and the Defendant’s Motion for Summary Disposition and the court having considered the motions, reviewed the court file, relevant legal authorities, being apprised of the agreement of counsel, and being otherwise advised in the premises, the court finds as follows:
This case involves competing interpretation of the Defendant’s PIP policy of insurance. The policy of insurance is U-10 Florida MIDA Ed. 7/2010 and the endorsement is U-501 FL 04/2011. Plaintiff’s interpretation would result in the Defendant having to pay more on the medical bills submitted, and the Defendant’s interpretation would result in a finding that the lesser amount it paid complied the policy.
Under Florida law, the scope and extent of insurance coverage is defined by the plain language and terms of the policy. Siegle v. Progressive Consumer Insurance Co., 788 So.2d 355, 359 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D1125a]. The Florida No-Fault statute provides alternative methodologies on the payment of medical expenses. The Defendant can either pay 80% of a reasonable expense or pay based on F.S. §627.736(5)(a). The statute and case law requires the language in the policy to include clear and unambiguous notice to their insured and the medical providers as to which methodology the Defendant has elected. See GEICO v. Virtual, 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]; Kingsway v. Ocean Health, 63 So.2d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a]; State Farm v. Phillips, 134 So.3d 505 (Fla. 5th DCA 2014) [39 Fla. L. Weekly D361b]; USAA Casualty v. DPI, 19 Fla. L. Weekly Supp. 925a (Fla. 17th Cir. Court 2012). If an insurer intends to restrict coverage, it should use language clearly stating its purpose. Id.
In this case, the Defendant’s policy does not clearly and unambiguously place the insured and provider on notice of the medicare fee schedule as the policy payment methodology because the Defendant’s policy states medical benefits shall be payable at the lesser of 80% of the actual charge or 80% of the schedule of maximum charges contained in Florida Statute §627.736(5)(a)(2) (see the endorsement) AND, at the same time, it also states the Defendant’s MAY use various sources of information to decide if a medical expenses is reasonable and those sources include but are not limited to computer programs and databases for the analysis of expenses and published sources of medical expense information (see page 12 of the policy, section 8). Mercury’s policy essentially allows it to choose on a claim-by-claim basis whether to pay the “reasonable” amount using computer programs, databases and published sources of medical expense information or pay the 200% of Medicare Fee schedule amount. Mercury’s policy gives it both options making the policy ambiguous. See Tri County Accident v. Mercury, 12-8745 COCE 53 (Fla. Broward County Court 2013, Judge Lee). Kingway requires that the choice of methodology be done “in a manner so that the insured and health care providers would be aware of it.” Id.
This Court finds the Defendant’s policy is clearly inconsistent and does not provide a clear and unambiguous election as required by Florida law. See GEICO v. Virtual, 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]; Kingsway v. Ocean Health, 63 So.2d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a]; State Farm v. Phillips, 134 So.3d 505 (Fla. 5th DCA 2014) [39 Fla. L. Weekly D361b]; USAA Casualty v. DPI, 19 Fla. L. Weekly Supp. 925a (Fla. 17th Cir. Court 2012). Such ambiguity must be resolved in favor of the insured.
Other court’s have considered similar Mercury policies and came to the same conclusion. See Hallandale Open (Matienzo) v. Mercury, 20 Fla. L. Weekly Supp. 676a (Fla. Broward County Court 2012, Judge Fry); South Florida Pain v. Mercury, Case number 12-02291 CONO 73 (Fla. Broward Cty Court 2013, Judge DeLuca), Stand Up MRI v. Mercury Case number 12-23011 COCE 55 (Fla. Broward Cty Court 2013, Judge Zeller) [20 Fla. L. Weekly Supp. 1000c]. Oakland Park MRI v. Mercury, 20 Fla. L. Weekly Supp. 586a (Fla. Broward Cty Court 2013); Rivero Diagnostic Center v. Mercury, Case Number 12-17077 SP 25 (Fla. Dade County Court 2013) [20 Fla. L. Weekly Supp. 596b];
Accordingly, Plaintiff’s motion is granted and the Defendant’s motion is denied as the Defendant was not entitled to limit reimbursement of Plaintiff’s charges by paying an amount equivalent to 200% of the Medicare cap as a matter of law. .
