22 Fla. L. Weekly Supp. 827b
Online Reference: FLWSUPP 2207PONCInsurance — Personal injury protection — Coverage — Emergency services — Deductible — Because insurer is mandated by statute to reserve $5,000 for emergency services providers, insurer should not have applied claim by plaintiff provider within that classification to deductible
EMERGENCY MEDICINE ASSOCIATES OF TAMPA BAY, L.L.C., as assignee of Eva Ponce, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2014-30834, Division 84. January 14, 2015. Honorable Dawn P. Fields, Judge. Counsel: Billie D. Bellamy and Brett D. Sahm, Bradford Cederberg, P.A., Orlando, for Plaintiff. Matthew Corker, Conroy Simberg, Ganon, Krevans, Abel, Lurvey, Morros, P.A., Orlando, for Defendant.
ORDER GRANTING PLAINTIFF’SMOTION FOR FINAL SUMMARY JUDGMENTANDDENYING DEFEDNANT’S MOTIONFOR SUMMARY JUDGMENT
THIS CAUSE having come to be heard on October 29, 2014, on Plaintiff’s Motion for Final Summary Judgment and Defendant’s Motion for Summary Judgment, and this Court, having reviewed the submissions of each party, having heard arguments of counsel on the merits of this matter and otherwise fully advised, Order and finds as follows:
This Court finds that Fla. Stat.§ 627.736 and Fla. Stat. § 627.739 are both sections included in the Florida Motor Vehicle No-Fault Law applicable to this and must be read in para material. This Court finds and the parties concede that both sections are clear and unambiguous, and, consequently, these statutory provisions are to be given their plain and ordinary meanings; resort to any legislative intent is unwarranted and unnecessary.
I. Factual Background
Defendant’s insured, Eva Ponce, was injured in a motor vehicle accident on October 2, 2013. On the day of the accident, Ms. Ponce visited the emergency room at St. Josephs Hospital where she examined and treated by Plaintiff. Plaintiff is a group of physicians who provide emergency services and care as defined in Section 395.002, Florida Statutes in the hospital. After examining and treating Ms. Ponce, Plaintiff issued Defendant a bill for CPT code 99823 (Emergency Department Visit) in the amount of $383.00. Defendant received Plaintiff’s bill within 30 days of the accident, on October 21, 2013. Upon receiving Plaintiff’s bill, Defendant’s adjuster approved 100% of Plaintiff’s billed amount as a covered loss and then applied the entire amount of Plaintiff’s bill to Ms. Ponce’s deductible.
The parties came before this Court on competing Motions for Summary Judgment and agree that this Court’s ruling will resolve this entire case, in favor of one or the two parties and against the other. The sole issue for this Court’s determination is whether the Defendant was permitted to apply Plaintiff’s bill to Ms. Ponce’s deductible under the facts of this case and Florida Law.
II. Position of the PartiesA. Plaintiff’s Position
Plaintiff contends that Section 627.736(4)(c), Florida Statutes, clearly and unambiguously requires an insurer to set aside (i.e. reserve) PIP benefits for payment to providers of emergency service and care, provided that the emergency services provider submits its bill to the insurer within 30 days of the insured’s motor vehicle accident. As long as the emergency services provider provides its bill to the insurer within the limited timeframe, the provider obtains a property interest in the benefits reserve at the amount it billed for its services rendered to the insured. Plaintiff’s points out that (4)(c) clearly states that the reserve can only be used for “payment,” or to “pay” the emergency physicians who qualify for protection under the statute. The words “payment” and “pay” mean “the transfer or delivery of money.” Thus, Plaintiff contends that the plain language of (4)(c) demonstrates that Plaintiff can only be paid money from the reserve. Plaintiff contends that Defendant’s act of applying the Plaintiff’s bill to the deductible is clearly not “payment” of money.
Plaintiff further contends that its interpretation is the only one of the parties respective interpretations which gives full effect to both: (i) Section 627.736(4)(c); and (ii) the insured’s deductible obligation. Plaintiff argues that the Defendants interpretation only gives effect to the insured’s deductible obligation under Florida Statute Section 627.739 and ignores (4)(c) entirely. Plaintiff admits that its property interest in the reserve does not “vest” or ripen in the insured deductible is satisfied by providers who are not specially protected under (4)(c). This would provide the insurer the full benefit of its bargain with its insured in that the insurer would not have to pay the PIP benefits until the deductible was met by the non-protected providers. An insured is able to pay her insurer less in monthly PIP premiums if she elects a PIP deductible. By doing so, the insured agrees to become responsible for payment of the bills that an insurer properly applies to the deductible. Given this, Plaintiff contends that the insurer is still getting what is bargained for with its insured. The insurer still is able to shift financial responsibility to the insured for the amount of the deductible. However, once the deductible amount is met from providers that are not specifically protected under (4)(c), Plaintiff contends that it is entitled to priority payments from the mandatory benefits reserve set for the under (4)(c). Any contrary holding would render (4)(c) meaningless because, in order to obtain the protection under the statute, the emergency physicians have to get their bills in to the insurer before all other types of providers. As a result, the emergency physicians would almost always have their bill applied to the insured’s deductible and would never get paid. This would, Plaintiff contends, completely thwart the intention of the Legislature when it enacted (4)(c) . The plain language of (4)(c) demonstrates the legislature’s intent when it enacted the provision — to ensure that the providers of emergency services and care are paid first when PIP benefits become available for payment. Thus, Plaintiff contends that its position is the only of the two parties’ position that can reconcile the mandate of (4)(c) with an insured’s deductible obligation.
B. Defendant’s Position
Ms. Ponce purchased a policy of automobile insurance from Progressive and elected a deductible in the amount of $1,000.00 in exchange for a reduced premium. The relevant portion of the policy indicates how the deductible is to be applied as follows:
“Any deductible elected by a named insured under Personal Injury Protection Coverage, and each person to whom the deductible applies, is shown on the declarations page. Any deductible that applies to the named insured shall apply to all persons listed as a named insured on the declarations page and any spouse of a named insured. When a deductible applies, the deductible will be applied to 100% of the expenses and losses covered under Personal Injury Protection Coverage. After the deductible is met, each insured person is eligible to receive up to $10,000 in total benefits under Personal Injury Protection Coverage. However, the deductible shall not be applied to reduce death benefits.”
Defendant asserts that the above policy provision is completely consistent with Fla. Stat. §627.739. This section dictates that insurers must allow each insured to purchase insurance at a lower premium in exchange for the insured to be financially response for up to the first $1,000.00 of medical bills. Further, §627.739 states that only after the deductible is met is the insured eligible to receive up to $10,000.00 in benefits as set forth in §627.736. This section is, the Defendant argues, clear and unambiguous and there is simply no coverage for any claim until the deductible is met. Therefore the insured, who is now the Plaintiff, is not eligible to receive any benefits until the deductible is met. Consequently, it would be illogical to determine that if the insured would not be eligible to receive benefits, that the Plaintiff, who stands in the insured’s shoes, is eligible to receive such benefits. This proposition would create coverage where none exists.
Defendant asserts that, as Plaintiff stands in the shoes of the insured, Plaintiff is bound by each and every term and condition set forth in the subject policy of insurance, which includes the application of a deductible to PIP charges. Defendant further asserts that pursuant to the policy, Fla. Stat. §627.736 and Fla. Stat. §627.739, there is simply no coverage for the bill in dispute in this matter (as far as remitting any monies to plaintiff) until the $1,000.00 has been satisfied. More specifically, there is no coverage for Plaintiff’s bill until coverage becomes due and owing to the insured, and in this particular case, pursuant to the applicable assignment of benefits, to the Plaintiff.
III. DISCUSSION AND COURT’S ANAYLSIS
When the contract was executed, Ms. Ponce (and now the Plaintiff, through an assignment of benefits) agreed to be financially responsible for the first $1,000.00 of benefits incurred for medical services/treatment which are compensable under the PIP portion of her policy. Plaintiff points out that Ms. Ponce did not expect to be responsible for the payment of Plaintiff’s bill notwithstanding the presence of an unsatisfied deductible because of the Supreme Court’s holding in Grant v. State Farm Fire and Cas. Co., 638 So. 2d 936, 938 (Fla. 1994).
In Grant, the Court provided:
“Where a contract of insurance is entered into on a matter surrounded by statutory limitations and requirements, the parties are presumed to have entered into such an agreement with reference to the statute, and the statutory provisions become a part of the contract.” Id.
The foregoing proposition was also articulated in several other cases. See Salas v. Liberty Mut. Fire Ins. Co., 272 So. 2d 1, 5 (Fla. 1972) (insurance coverage is a creature of statute that is not susceptible to the attempts of the insurer to limit or negate the protection afforded by the law.); State Farm Mut. Auto. Ins. Co. v. Hassen, 650 So. 2d 128, 132 (Fla. 2d DCA 1995) [20 Fla. L. Weekly D318a] (parties to an insurance contract are presumed to have entered into the contract with reference to the specific statute so that its provisions become an integral part of the contract); Florida Farm Bureau Cas. Ins. Co. v. Cox, 943 So. 2d 823, 832 (Fla. 1st DCA 2006) [31 Fla. L. Weekly D2679a] (insurance policies are deemed to incorporate applicable statutes); Brown v. Travelers Ins. Co., 649 So.2d 912, 915 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D291b] (the subject of motor vehicle insurance is pervasively regulated by a welter of statutory provisions. Insurance policies must be written under the inescapable omnipresence of these statutes.); State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 65 (Fla. 1995) [20 Fla. L. Weekly S173a] (Wells, J., concurring) (it is well-settled in this State that insurance contracts are to be construed so as to include the provisions of insurance statutes.). Based on the foregoing, (4)(c) was incorporated into the contract of insurance entered into between Ms. Ponce and Defendant.
Subsection 627.736(4)(c), went into effect on January 1, 2008. The Legislature’s enactment of the foregoing statute radically altered the existing law in several respects. The addition of Section (4)(c) represented the first benefit reserve requirement under the PIP statute. Prior to 2008, an insurer was not required to create a PIP benefit reserve for the benefit of any category or type of medical provider. See, e.g., Simon v. Progressive Exp. Ins. Co., 904 So. 2d 449, 450 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b]. However, the plain language of (4)(c) clearly changed the foregoing law by mandating that insurers establish a benefit reserve for one special category of medical provider that the legislature sought to protect — providers of emergency services and care.
Although the insurer’s obligation to pay the benefits may not ripen before an insured’s deductible is satisfied by providers that are not protected under (4)(c), the insurer’s obligation related to payment arises when the insurer receives “notice of an accident that is potentially covered by personal injury protection benefits.” Therefore, as of 2008, the insurer does, in fact, have a statutory duty related to the payment of PIP benefits even though the insured has an unsatisfied deductible. The insurer may not actually have to issue payments from the benefits reserve until the deductible is satisfied by non-protected providers, but (4)(c) certainly mandates that the insurer create the benefits reserve before any medical bills ever come in on the insured’s PIP claim. Thus, while an insured may have solely been responsible for anything related to payment of medical bills under PIP when she had an unsatisfied deductible prior to January 1, 2008, this is no longer the case. The insured is simply not responsible for paying the emergency physicians that qualify under (4)(c). The entity responsible for paying the emergency physicians from the benefits reserve is the “insurer.”
This Court disagrees with Defendant’s contention that the parties to the insurance contract did not intend to create an independent right to payment for Plaintiff. As discussed in Grant v. State Farm Fire and Cas. Co., 638 So. 2d 936, 938 (Fla. 1994), the parties are presumed to have entered into a policy an agreement with reference to the statute, and the statutory provisions become a part of the contract. The contract of insurance is deemed to incorporate the mandates of the PIP statute. As such, the parties entered into the contract with the realization that Defendant was required to pay Plaintiff from the mandatory reserve once the deductible was satisfied by the non-protected providers. Section (4)(c) clearly holds the insurer, i.e. the Defendant, responsible for payment. Thus, the insured would not have thought that she was responsible for paying Plaintiff’s bill. Plaintiff’s rights are not simply derived from the assignor, Ms. Ponce. The case law cited by Plaintiff clearly shows that Plaintiff has its own private, independent right to payment based solely on the language of (4)(c).
Ultimately, (4)(c) clearly and unambiguously creates a property interest in the mandatory benefits reserve as long as Plaintiff issued its bill to Defendant within 30 days of the date of the accident. Here, it is undisputed that Plaintiff submitted its bill to the Defendant within the 30-day timeframe. The facts show that Ms. Ponce’s deductible would have been satisfied by non-protected providers if Defendant had not applied Plaintiff’s bill to the deductible. Upon the deductible being satisfied by the non-protected providers, Defendant should have paid Plaintiff within 30 days as is required under Section 627.736(4)(b), Fla. Stat. Since Defendant failed to pay Plaintiff, and instead continued to adhere to a position which violates the mandate of the PIP statute, Plaintiff’s bill became overdue and Defendant breached the contract of insurance.
WHEREFORE, this Court hereby GRANTS Plaintiff’s Motion for Final Summary Judgment, and hereby DENIES Defendant’s Motion for Summary Final Judgment. Plaintiff is entitled to the principal amount of $383.00, plus pre- and post-judgment interest. This Court reserves jurisdiction for purposes of awarding Plaintiff its attorneys’ fees and costs.
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