22 Fla. L. Weekly Supp. 1070a
Online Reference: FLWSUPP 2209PEEKInsurance — Personal injury protection — Coverage — Emergency services — Deductible — Because insurer is mandated by statute to reserve $5,000 for emergency service providers, insurer should not have applied claim by plaintiff provider within that classification to deductible
EMERGENCY MEDICAL ASSOCIATES OF TAMPA BAY, L.L.C., as assignee of Kimberly V. Peek, Plaintiff, v. GEICO INDEMNITY COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2014 22804 CONS, Division 78. March 23, 2015. Shirley A. Green, Judge.
ORDER GRANTING PLAINTIFF’SMOTION FOR FINAL SUMMARY JUDGMENTAND DENYING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS MATTER came before the Court on 3/5/2015 after due notice to the parties on competing motions for Final Summary Judgment. The Court having heard argument of counsel and being otherwise fully advised in the premises finds as follows:
Stipulation of Facts:
The parties entered a joint stipulation of facts and authentication of exhibits for purposes of summary judgment. They stipulate that GEICO’s insured, Kimberly Peek, was injured in a motor vehicle accident covered by her personal injury protection policy with GEICO. The policy provides personal injury protection (PIP) coverage to a limit of $10,000.00 and has a $1,000.00 PIP deductible. The Plaintiff in this matter, hereinafter “EMATB,” is an emergency room physician group licensed under Chapter 458 or 459 Fla. Stats., who provided emergency services and care to the insured as defined in Fla. Stat. 395.002(9). GEICO received EMATB’s claim within 30 days of GEICO’s receipt of notice of the accident. The first claim received totaled $674.00 and was applied to the deductible in full. EMATB’s claim in the amount of $630.00 was the second claim received. GEICO applied a portion of EMATB’s claim toward the contract deductible and paid the balance at 80%. GEICO received additional claims from unprotected providers for treatment that did not constitute emergency services and care. Those claims exceeded the policy deductible. The parties stipulate in this matter only that the services were reasonable, related and necessary.
Position of the parties:
The positions of the parties are as follows: Defendant contends that Plaintiff’s expense was properly applied to the deductible contained in the insurance policy under Fla. Stat. Section 627.739; GEICO further contends that expenses and benefits are defined terms in the statute and that EMATB’s claim represents an expense, which never becomes a benefit, by virtue of the deductible contracted for by the insured. GEICO contends that Fla. Stat. 627.739 is the more specific and controlling statute and that the language “100% of the expenses and losses” means all claims, regardless of the entity submitting them. Finally, GEICO asserts that the clear legislative intent was to shield providers of emergency services and care from benefits exhausting, not deductibles; because if the legislature wanted to provide an exception fop this class of providers it could have done so similar to the exclusion of death benefits found in Fla. Stat. 627.739.
EMAT contends that pursuant to Fla. Stat. 627.736(4)(c), upon the carrier receiving notice of a loss potentially covered by PIP benefits, the carrier is required to hold in reserve the sum of $5000.00 for payment to providers who meet the criteria outlined in 627.736(4)(c). Additionally, that the clear language of the statute requires payment of benefits and that applying the qualifying provider’s bill toward the deductible violates the clear language of the more specific and more recent expression of legislative intent expressed in Fla. Stat. 627.736(4)(c).
EMATB further contends that the language of Fla. Stat. 627.739, (“the deductible statute”), which states that “100% of expenses and losses” are to be applied to the deductible is a calculation statute, not a descriptive statute, as evidenced by the Florida Supreme Court cases of International Bankers Insurance Company v. Arnone 552 So.2d 908 (Fla. 1989) and Govan v. International Bankers Insurance Company 521 So.2d 1086 (Fla. 1988).
Analysis of the Court:
Fla. Stat. 627.736(4)(c)(2008) was clearly enacted to provide a special level of protection and payment to providers of emergency services and care, providing they met the specific criteria set forth in the subsection. They had to be a physician licensed under certain chapters of the Florida Statutes; provide emergency services and care as defined in Florida statutes; and they had to submit their claim to the carrier within 30 days of the carrier receiving notice of the loss. The stipulation of the parties establishes that each element was met by EMATB in this matter and accordingly their charges were to be paid out of the $5000.00 reserve of PIP benefits set up for their benefit.
The triggering event for reservation of benefits for payment is notice to the insurer of a loss potentially covered by PIP benefits. The reserve mandated by 627.736(4)(c) takes effect immediately upon the insurer’s receipt of timely notice.
The requirement that the claim be submitted within 30 days to gain protected status is also important here. Emergency physicians are exempt from the requirement that claims be submitted within 35 days of rendering care. Fla. Stat. 627.736(5)(b)2(c) states:
(c) With respect to any treatment or service, other than medical services claimed by a hospital or other provider for emergency services and care as defined in s. 395.002 or inpatient services rendered at a hospital-owned facility, the statement of charges must be furnished to the insurer by the provider and may not include, and the insurer is not required to pay, charges for treatment or services rendered more than 35 days before the postmark date or electronic transmission date of the statement
In fact, there is no time limit imposed for submission of claims by providers of emergency services and care. In order to gain the protection of Fla. Stat. 627.736(4)(c), however, these providers are required to comply with a time frame of submission that is shorter than any other provider. Accordingly, it is illogical to suggest that if providers of emergency services and care comply with what is necessary to obtain the statute’s protection for payment, the legislature’s intentions can be thwarted by applying their claim to a deductible.
EMATB clearly articulates that there is no assertion being made that the contracted for deductible does not have to otherwise be satisfied before payment of benefits is due. It argues only that the deductible should be satisfied by non-protected claims, in light of the mandatory reserve and “for payment” language contained in 4(c). The arguments of EMATB do not alter the contract terms between the insured and the insurer. Each party obtains the full benefit of their bargain. EMATB also argues that the “English rule” of priorities, does not apply to personal injury protection benefits. Northwoods Sports Medicine and Physical Rehabilitation, Inc. v. State Farm Mutual Automobile Insurance Company 137 So.3d 1049 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D491a].
With respect to the arguments concerning the deductible statute, the Court adopts EMATB’s arguments. Prior to 2003, the PIP statute permitted deductibles up to $2000.00 deductible which were deducted from the “benefits otherwise due” to the insured, meaning a policy with a $2000.00 provided only $8000.00 in benefits. Arnone, supra. Additionally, when calculating what sum was to be applied to the deductible, the calculation was: claimed amount x 80% = amount applied to the deductible. Govan, supra. The Florida Supreme Court’s opinions in Arnone and Govan lead to Fla. Stat. 627.739 being amended, effective January 1, 2003. Beginning in 2003, $2000.00 deductibles were no longer permitted; the deductible elected did not reduce the amount of benefits available under PIP; and the calculation of the deductible was changed from applying only the 80% of the charge that PIP owed toward the deductible to applying “100% of the expenses and losses” toward the deductible. The legislative history clearly establishes that each of these changes was made to satisfy the deductible as quickly as possible and maximize the benefits available to the insured.
The court finds that 627.736(4)(c) is the later and more specific pronouncement of legislative intent and therefore is controlling over 627.739. Fla. Stat. 627.739 was last amended in 2003. The reserve outlined in Fla. Stat. 627.736(4)(c) was enacted in 2008. Even if Fla. Stat. 627.739 were deemed controlling, because the 4(c) reserve has specific criteria to be met in order to qualify for its protection, it is plausible that there will be claims that will not qualify for protection because the criteria are not met. This would lead one to the reasonable conclusion that a blanket prohibition against applying these claims toward a deductible in Fla. Stat. 627.739 (as has been done with respect to death benefits) would not be feasible.
Accordingly, it is hereby,
ORDERED AND ADJUDGED:
1. Plaintiff’s Motion for Final Summary Judgment is hereby GRANTED.
2. Defendant’s Motion for Final Summary Judgment is hereby DENIED.
3. EMATB shall take from this action the sum of $260.80 plus accrued interest in the amount of $13.40 (4.75% interest) for a total recovery of $274.20 for which sum let execution issue forthwith.*
4. The Court finds Plaintiff is entitled to its reasonable attorneys’ fees and costs. The Court reserves jurisdiction to determine the amount of attorneys’ fees and costs to Plaintiff pursuant to Fla. Stat. §§627.736, 627.428 and 57.041.
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*Post judgment interest of 4.75% per annum shall accrue on this judgment pursuant to Fla. Stat. § 55.03.
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