22 Fla. L. Weekly Supp. 728c
Online Reference: FLWSUPP 2206WILLInsurance — 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 — Insurer cannot dispute reasonableness of charge after it allowed full amount of charge when applying charge to deductible
EMERGENCY PHYSICIANS OF CENTRAL FLORIDA, LLP, as assignee of Ebony Williams, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2012-SC-2127-O. October 15, 2014. A. James Craner, Judge. Counsel: Mark A. Cederberg, Bradford Cederberg P.A., Orlando, for Plaintiff. Neil Andrews, Orlando, for Defendant.
This order affirmed by circuit court on appeal; circuit court appellate order was quashed by district court of appeals. 41 Fla. L. Weekly D714a (Progressive American Ins. Co. v. Emergency Physicians of Central Florida, 5D15-3720; 3-18-2016)
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY FINAL JUDGMENT
THIS MATTER having come before this Honorable Court on June 2, 2014 on Plaintiff’s Motion for Final Summary Judgment and Defendant’s Motion for Summary Final Judgment and this Honorable Court having heard arguments of counsel, reviewed the evidence, relevant Florida statutes and case law presented and being otherwise fully advised in the premises, it is hereby,
ORDERED AND ADJUDGED that:
I. FACTS
1. Ebony Williams (“Williams”) was involved in an automobile accident on October 7, 2011. At the time of the automobile accident, Williams was insured by a personal injury protection policy issued by Progressive Select Insurance Company (“Defendant”) which was in full force and effect and provided $10,000 in PIP benefits, with a $1000 deductible.
2. Williams presented to the Emergency Room of Dr. P. Phillips Hospital on October 7, 2011. On October 7, 2011, Williams received emergency services and care as defined under Fla. Stat. 395.002(9) by Florida Emergency Physicians Kang and Associates (“Plaintiff’), who are the physicians who render treatment in the Emergency Room of the hospital.
3. Plaintiff submitted its medical bill for emergency services and care rendered to Williams on October 7, 2011 in the amount of $671.00 to the Defendant.
4. Defendant was notified of the subject motor vehicle accident on October 7, 2011. Plaintiff’s bill was received by the Defendant on October 24, 2011. Defendant processed Plaintiff’s bill by allowing the full amount of the charge ($671.00) and then applying the remaining deductible ($140.28) to the bill and then issuing a partial payment under Williams’ PIP coverage in the amount of $424.58. Plaintiff provided Defendant with a pre-suit demand letter and ultimately filed suit for additional PIP benefits.
II. ISSUES AND ANALYSIS
(A) Was Defendant entitled to apply the PIP deductible to Plaintiff’s bill?
(B) Can Defendant argue the reasonableness of Plaintiff’s charge for the emergency services and care rendered to the insured after Defendant allowed the bill in full and applied the bill to the PIP deductible?
5. In 2008, the Florida legislature amended the PIP statute to add section 627.736(4)(c). Section (4)(c), created a statutory priority that requires payment and a mandatory reserve of $5,000.00 for a group of protected medical providers. The protected class consists of providers licensed under chapters 458 or 459 who provide emergency services under F.S. 395.002(9) and whose bills are received by a PIP insurer within 30 days.
6. Courts apply the plain meaning of the language used in a statute and apply that language to the circumstances presented by a dispute under that language. Saleeby v. Rock Elson Const., Inc., 3 So. 3d 1078, 1082 (Fla. 2009) [34 Fla. L. Weekly S106a]. Where the language used is plain, unequivocal and not subject to reasonable differences as to its meaning, there is no occasion to employ other rules of statutory construction and again, the plain meaning of the language used in the statute controls its application to the facts presented. Vreuls v. Progressive Employer Services, 881 So.2d 688, 690 (Fla. 1st DCA 2004) [29 Fla. L. Weekly D1990b].
7. Here, the language of Fla. Stat. §627.736(4)(c) is plain, unequivocal and not subject to reasonable difference as to its meaning. The law is therefore applied to the facts in the case sub judice.
8. Section (4)(c) requires an automobile insurer providing PIP benefits, such as the defendant in this case, to reserve $5,000.00 in PIP benefits for payment to first responders. Prior to the effective date of this section, insurers had no prior obligation to reserve benefits for any class of medical provider under the PIP statute. The $5,000.00 reserve is mandatory in nature. In this case, Defendant’s litigation adjuster testified that Defendant did not reserve or set aside $5,000 in PIP benefits pursuant to section (4)(c). (emphasis added). See deposition transcript of Christina Barrow, page 41, lines 20-25; page 42, line 1.
9. The Legislature drafted section (4)(c) in 2008 in an effort to carve out a small group of protected providers for which a priority claim would exist, for which a reserve would apply, and for which payment was required to be made by the insurer.
10. Section (4)(c) is intended to protect against the financial constraints placed on emergency medical providers.
11. When the Legislature created the (4)(c) reserve it placed a more strict time limit on emergency physician bills to be received by insurers. The time limit of 30 days from notice of the accident is the shortest period of time in the statute. If the emergency room physicians are attempting to comply with subsection (4)(c) so as to gain the protection of priority of payment, then it is likely their bill will be the first, or one of the first bills received by the Defendant. This would make the ER physician bill much more likely to be applied to the deductible.
12. This was not the intent of the Legislature (i.e. requiring expeditious billing to gain the protection of (4)(c) just to have the bill immediately applied to the deductible for non-payment of PIP benefits).
13. Due to the fact that subsection (4)(c) was enacted more recently and the Legislature is presumed to know existing law and judicial constructions of statutes when it enacts or amends a statute, this Court finds no other logical reading of the plain language of the statute.
14. The statute requires a specific reservation of “personal injury protection benefits for payment” to qualified bills. Defendant’s position that Fla. Stat. §627.739 should control prior to Fla. Stat. 627.736(4)(c) would effectively render (4)(c) meaningless.
15. In reaching its decision, this Court is also guided by the January 30, 2014, Ninth Judicial Circuit Appellate opinion which affirmed the trial court in the case of Emergency Physicians of Central Florida, LLC a/a/o Barbara Maughan v. USAA, Appellate Case Number 2012 AP-1, Lower Court Case Number 2011-SC-140 [19 Fla. L. Weekly Supp. 746a]. In Maughan, the trial court entered final summary judgment in favor of an emergency room provider (same Plaintiff in this case) that qualified for protection and the mandatory reserve under section (4)(c). The Ninth Judicial Circuit Appellate Court held that the trial court did not err and it affirmed the trial court’s final summary judgment in its entirety.
16. Defendant cannot now challenge reasonableness of Plaintiff’s charge for emergency services and care rendered to the insured after Defendant allowed the bill in full and applied the bill to the PIP deductible.
17. Defendant’s argument that Plaintiff’s burden has yet to be met in regards to the reasonableness of the Plaintiff’s charge is not persuasive for this matter. Defendant’s Motion for Summary Final Judgment was based solely on the application of the deductible to the ER physician’s bill; it set forth no argument that Defendant felt the charge was unreasonable or that the emergency services were unrelated or medically unnecessary as to the patient/insured. See ¶ 6 of Defendant’s Motion for Summary Final Judgment.
18. The record evidence before this Court suggests that the sole legal issue is whether the deductible was properly applied to the ER physician bill. First and foremost, Defendant’s explanation of benefits shows the charged amount of $671.00 for Plaintiff’s bill was allowed in full prior to application of the deductible and makes no mention of the Defendant challenging the reasonableness of the Plaintiff’s charge. Defendant made a determination that Plaintiff’s bill was compensable and processed the bill in full by applying it to the deductible and issuing payment for the remainder. (emphasis added).
19. The Florida Supreme Court recently addressed the permissive fee schedules outlined in Fla. Stat. §627.736 and determined that the statute allows for two (2) distinct payment methodologies when determining reasonableness of medical bills, and an insurer must give notice of its intent to utilize the fee schedules outlined in the statute. Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 2013 WL 3332385, also cited as 38 Fla. L. Weekly S517a (Fla. 2013). The Supreme Court said “[i]n other words, pursuant to subsection (5)(a)1 of the PIP statute, reasonableness is a fact-dependent inquiry determined by consideration of various factors. Subsection (5)(a)2 of the statute, however, provides an alternative mechanism for determining reasonableness: by reference to the Medicare fee schedules.” Id. There is no dispute that Defendant, in this particular case, utilized the (5)(a)2 payment methodology when the subject bills were processed. See deposition transcript of Christina Barrow, page 33, lines 21-25; page 34, lines 1-1-25; page 35, lines 1-4; page 36, lines 17-25; page 37, lines 1-7.
20. Defendant’s attempt to propose that this Court must now complete additional fact dependent inquiry on various factors after the conclusion of competing Final Summary Judgments lacks merit under the guidance provided by the Florida Supreme Court.
21. Accordingly, this Court finds that, based on Defendant’s actions of processing the bill at issue and applying the full amount of the charge to the deductible renders any inquiry into whether the claim was unrelated, was not medically necessary, or the charge was unreasonable irrelevant under the facts of this case.
IV. CONCLUSION:
WHEREFORE, it is ORDERED AND ADJUDGED that
22. The Plaintiff’s Motion for Final Summary Judgment is GRANTED.
23. The Defendant’s Motion for Summary Final Judgment is DENIED.
24. The Plaintiff is entitled to $112.22 (80% of $671.00 minus $424.58 previously paid) plus accrued interest of $13.98 (4.75 % from October 24, 2011) for a total of $126.20 for which let execution issue forthwith. Post Judgment interest of 4.75% per annum shall be due on this judgment pursuant to Fla. Stat. 55.03. The Court also finds the Plaintiff is hereby entitled to reasonable attorney fees and costs and reserves jurisdiction to determine the amount.
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