22 Fla. L. Weekly Supp. 732a
Online Reference: FLWSUPP 2206HUFFInsurance — Personal injury protection — Discovery — Where insurer utilized permissive statutory fee schedule to calculate reimbursement rate although policy is devoid of any reference to section 627.736(5)(a)2 and merely refers to “fee schedules applicable to automobile insurance,” insurer unilaterally determined “reasonableness” and discovery on issue of reasonableness shall not be had by either party — Deposition of insurer’s corporate representative shall be conducted to establish basic facts and authenticate record evidence to allow parties to proceed to summary judgment on issue of whether policy gave adequate notice of insurer’s intent to utilize permissive statutory fee schedule
HEALTH DIAGNOSTICS OF ORLANDO, LLC d/b/a STAND-UP MRI OF ORLANDO, as assignee of Erika Huffman, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2013-SC-10822. December 9, 2014. A. James Craner, Judge. Counsel: David B. Alexander, Orlando, for Plaintiff. Jennifer M. Eberly, Orlando, for Defendant.
ORDER
THIS MATTER having come before this Honorable Court on 1) Plaintiff’s Motion to Compel Deposition of Defendant’s Corporate Representative Pursuant to Fla. R. Civ. P. 1.310(b)(6), 2) Plaintiff’s Motion for Protective Order, 3) Plaintiff’s Motion for Court to Take Compulsory Judicial Notice of the 2007 Medicare Part B Participating Physician Fee Schedule in its Entirety, Including But Not Limited To, the 2007 Medicare Part B Participating Physician Fee Schedule Reimbursement Amount for the CPT Code(s) at Issue in this Matter, 4) Defendant’s Motion to Compel Plaintiff’s Corporate Representative Deposition, and 5) Defendant’s Motion for Protective Order and this Honorable Court having reviewed the record, written arguments submitted by the parties, and being otherwise fully advised in the premises, it is hereby,
ORDERED AND ADJUDGED that:
1. The Plaintiff submitted its medical bill to Defendant for date of service 11/25/2011 seeking reimbursement from Defendant for CPT Code 72148 in the amount of $1,600.00. Defendant approved $1,066.28 of Plaintiff’s $1,600.00 charge and reimbursed Plaintiff $1,066.28 (the policy at issue in includes both PIP and Medical Payments coverages). It is clear from the record that $1,066.28 equals 200% of the 2007 Medicare Part B Participating Physician Fee Schedule for CPT Code 72148. Clearly, 200% of the 2007 Medicare Part B Participating Physician Fee Schedule is located under the schedule of maximum charges within Fla. Stat. 627.736(5)(a)2.
2. This Court relies on Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a].
3. In determining whether a charge for a particular service or treatment is reasonable, there are two (2) methods by which an insurer may calculate reimbursement methods: i) the fact dependent method under 627.736(5)(a)1. or ii) by utilizing the permissive fee schedules under 627.736(5)(a)2. These methods have been described as separate and distinct methods for evaluating the statute’s reasonable expense coverage mandate under Fla. Stat. 627.736(1)(a). The insurer must choose the one payment methodology it will utilize for reimbursement and cannot alternate between the two methods.
4. If the methodologies are separate and distinct, then it is impossible that any of the schedule of maximum charges under (5)(a)2 could be used in a (5)(a)1 inquiry. In Virtual Imaging, supra, the Supreme Court held that the insurer had to elect clearly and unambiguously which section it utilized to reimburse for medical expenses; (5)(a)1 or (5)(a)2. Therefore, the primary question to be determined is whether an insurer has attempted to limit reimbursement under the statute’s schedule of maximum charges and whether its policy of insurance provides sufficient notice.
5. Defendant’s policy of insurance does not include a specific reference to Fla. Stat. 627.736(5)(a)2. Plaintiff has filed with the Court the 2007 Medicare Part B Participating Physician Fee Schedule for CPT Code 72148. Based upon the 2007 Medicare Part B Participating Physician Fee Schedule reimbursement amount for CPT Code 72148, it is without question that Defendant utilized 200% of the 2007 Medicare Part B Participating Physician Fee Schedule when processing Plaintiff’s bill ($533.14 x 2 = $1,066.28). Defendant’s argument hinges on the fact that its policy of insurance uses the term “fee schedules applicable to automobile insurance” and thus Defendant argues its policy gives adequate notice to limit reimbursement under (5)(a)2. Defendant’s argument that 200% of the 2007 Medicare Part B Participating Physician Fee Schedule is a factor that can be utilized under (5)(a)1. is contrary to the statute and the case law.
6. The purpose of (5)(a)2. was to reduce costs and eliminate litigation regarding reasonableness of charge. In other words, since Defendant did not rely upon the remaining factors within its policy of insurance when processing the Plaintiff’s bill it cannot now fall back upon the fact dependent inquiry to determine reasonableness of the charge. Defendant unilaterally determined “reasonableness” when it calculated reimbursement according to the schedule of maximum charges (i.e., 200% of the 2007 Medicare Part B Participating Physician Fee Schedule). To allow opposing parties to fight and compel discovery on unrelated, immaterial or irrelevant legal matters frustrates the clear intent of the statute and judicial economy. As previously noted, the legislative intent behind enacting the schedule of maximum charges was “designed to reduce costs and eliminate litigation regarding what is a ‘reasonable’ charge.” Florida Senate, Bill Analysis and Fiscal Impact Statement, CS/SB 40-C, Oct. 4, 2007, page 18.
7. Regarding appropriate discovery for a (5)(a)2. election and notice to the insured, the Court finds “reasonableness” discovery (depositions, better interrogatories and/or better request to produce) shall not be had in this matter by either party. See Allstate Insurance Company v. Langston, 655 So. 2d 91 (Fla. 1995) [20 Fla. L. Weekly S217a] (discovery in a civil case must be relevant to the subject matter of the case and it must be admissible or reasonably calculated to lead to admissible evidence).
8. This Court in rendering its ruling further relies on the previous rulings and orders in Florida Hospital Medical Center a/a/o Paul Comazzi v. State Farm Mutual Automobile Insurance Company, Case No. 2013-SC-5303-O [22 Fla. L. Weekly Supp. 123b]; Florida Hospital Medical Center a/a/o Farrah Ignace-Jean v. Progressive American Insurance Company, Case No. 2013-SC-6527-O; Florida Hospital Medical Center a/a/o Jacob Ferrier v. State Farm Mutual Automobile Insurance Company, Case No. 2013-SC-5726-O; Florida Hospital Medical Center a/a/o Melbourne Feldman v. State Farm Mutual Automobile Insurance Company, Case No. 2013-SC-5764-O; Florida Hospital Medical Center a/a/o Christine Fikry v. Progressive Select Insurance Company, Case No. 2013-SC-5771-O; and Florida Hospital Medical Center a/a/o Elizabeth Flanagan v. Progressive Select Insurance Company, Case No. 2013-SC-7534-O.
9. Plaintiff’s Motion to Compel Deposition of Defendant’s Corporate Representative Pursuant to Fla. R. Civ. P. 1.310(b)(6) is hereby GRANTED. The Defendant shall designate and the deposition of Defendant’s Corporate Representative pursuant to Fla. R. Civ. P. 1.310(b)(6) shall be coordinated within thirty (30) days from the date of this Order and the deposition shall be conducted within one hundred and seventy-five (175) days from the date of this Order. Said deposition is meant to establish basic facts and authenticate the necessary record evidence to allow the parties to conduct a summary judgment on the legal issue remaining in this case: “Does the policy of insurance adequately give notice of Defendant’s intent to utilize the permissive schedule of maximum charges?”
10. Plaintiff’s Motion for Protective Order is GRANTED.
11. Plaintiff’s Motion for Court to Take Compulsory Judicial Notice of the 2007 Medicare Part B Participating Physician Fee Schedule in its Entirety, Including But Not Limited To, the 2007 Medicare Part B Participating Physician Fee Schedule Reimbursement Amount for the CPT Code(s) at Issue in this Matter is GRANTED.
12. Defendant’s Motion to Compel Plaintiff’s Corporate Representative Deposition is DENIED.
13. Defendant’s Motion for Protective Order is DENIED.
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