22 Fla. L. Weekly Supp. 383a
Online Reference: FLWSUPP 2203CHAVInsurance — Personal injury protection — Coverage — Medical expenses — Statutory schedules — Affirmative election — Policy at issue failed to provide required notice which would result in an enforceable election to apply statutory reimbursement limitations — Question certified: Does a PIP policy that expressly states that “any amounts payable under this coverage shall be subject to any and all limitations authorized by Fla. Stat. §627.736, . . . including, but not limited to, all fee schedules,” clearly and unambiguously notify the insured of the methodology the insurer will apply in limiting reimbursement of PIP benefits?
MARKLEY CHIROPRACTIC & ACUPUNCTURE, LLC a/a/o Ilene Chavez, Plaintiff, vs. ALLSTATE INDEMNITY COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 14-CC-002033, Division M. June 16, 2014. Honorable Herbert M. Berkowitz, Judge. Counsel: Daniel Gutierrez, Daniel Gutierrez, P.A., Orlando, for Plaintiff. Anthony J. Parrino, Reynolds Parrino Spano & Shadwick, P.A., St. Petersburg, for Defendant.
REVERSED. 41 Fla. L. Weekly D793b
ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT AND DENYINGDEFENDANT’S MOTION FORSUMMARY JUDGMENT
This matter came before the Court upon the parties’ cross Motions for Summary Judgment. The Court, having heard argument of the Parties on May 12, 2014, and being otherwise fully advised in the matter, GRANTS Plaintiff’s Motion for Summary Judgment and DENIES Defendant’s Motion for Summary Judgment. The Court finds as follows:
1. Plaintiff challenges Allstate’s attempt to limit reimbursement for medical services covered under the Personal Injury Protection (“PIP”) portion of Allstate’s policy of automobile insurance. Allstate contends that its policy specifically and expressly notifies its policyholder (as well as any assignee providers) that Allstate has elected to apply to PIP reimbursement the fee schedule limitations that are authorized under the No-Fault Statute.
2. The Court finds that Allstate’s policy language fails to comply with the requirements set forth by the Florida Supreme Court in GEICO Gen. Ins. Co. v. Virtual Imaging Services, Inc., ___ So.3d ___, 38 Fla. L. Weekly S517a (Fla. No. SC12-905, July 3, 2013) (referred to herein as “Virtual Imaging”) and fails to constitute the required notice which would result in an enforceable election to apply reimbursement limitations permitted under §627.736(5)(a)2., Florida Statutes. The Court specifically finds that Allstate’s policy language is unclear and ambiguous in how it would execute a limitation on benefits, and as such, renders ineffectual its attempt at notice of such limitation.
FACTS
3. The parties, by stipulation, agree that the instant case involves no disputed facts. Allstate’s insured, Ilene Chavez, was involved in an automobile accident on March 23, 2011. Ilene Chavez sustained injuries that were covered under Allstate’s policy and the relevant provisions of §627.736, Florida Statutes (2008) (the “PIP Statute”). Pursuant to a valid assignment of benefits, Plaintiff, Markley Chiropractic & Acupuncture, LLC, provided medical services to Ilene Chavez. It is further agreed that these medical services were reasonable, related and necessary and otherwise covered under the Allstate policy issued to Ilene Chavez on October 22, 2010.
4. Allstate takes the position that it reimbursed the invoices received from Plaintiff relating to this claim in accordance with §627.736(5)(a)2.f., Florida Statutes. The Plaintiff takes the position that Allstate improperly limited reimbursement of the subject invoices by utilizing an unclear and ambiguous limitation provision in its policy.
5. The relevant portion of Allstate’s policy provides in relevant part:
In accordance with the Florida Motor Vehicle No-Fault Law, Allstate will pay to or on behalf of the injured person the following benefits. . .
1. Medical Expenses.
Eighty Percent of reasonable expenses for medically necessary medical; surgical, X-ray, dental and rehabilitative services. . .
Any amounts payable under this coverage shall be subject to any and all limitations authorized by section 627.736, or any other provisions of the Florida Motor Vehicle No-Fault Law, as enacted, amended or otherwise continued in the law including, but not limited to, all fee schedules.
DISCUSSION
6. In GEICO Gen. Ins. Co. v. Virtual Imaging Services, Inc., ___ So. 3d ___, 38 Fla. L. Weekly S517a (Fla. No. SC12-905, July 3, 2013), the Florida Supreme Court held: “We conclude that the insurer was required to give notice to its insured by electing the permissive Medicare fee schedules in its policy before taking advantage of the Medicare fee schedule methodology to limit reimbursements.” (emphasis added.)
7. Plaintiff contends that Allstate’s policy language does not constitute notice of a valid election because the reimbursement limitation language in Allstate’s policy is not sufficiently clear and unambiguous. This Court agrees that the language contained in the Allstate policy is not sufficiently clear and unambiguous to constitute a valid notice of intent to select a specific, limited methodology of reimbursement.
8. The primary failure of the language contained in the limitation provision of the subject policy is that, in its attempt to include all possible current and future statutory variances, it simply goes too far. Rather than give specific notice of how it would apply any specific methodology in determining “reasonable medical expenses”, it includes the proverbial “kitchen sink” by using the phrase, “including, but not limited to, all fee schedules”.(emphasis added).
9. The Supreme Court, in Virtual Imaging, held that a carrier must give notice in its policy of its intent to select a certain methodology in determining reasonable medical expenses. That opinion specifically deals with the use of a particular fee schedule, i.e. the Medicare Fee Schedule, as specifically referred to in the PIP Statutes. For any form of notice to be effective, that notice must be more than a warning that some limitations will be applied to claims for reimbursement; it must clearly and unambiguously set forth those limitations and how those limitations will be applied.
10. Certainly, Allstate’s intent is to effectuate limitations on its methodology of determining reasonableness of medical expenses. Its limitations paragraph clearly states that “this coverage shall be subject to any and all limitations. . .”. Just as certainly, the statutory scheme governing this case allows Allstate to do exactly that. However, in order for it to conform to the dictates of Virtual Imaging, it must give notice of the specific limitations it will be applying, and by obvious implication, notice of how such limitations would be applied. It is simply insufficient to give warning that some limiting methodology of determining reasonableness of medical expense will be applied. The language of its limitation clause fails to give sufficiently clear and unambiguous notice, thereby rendering it ineffective.
11. When notice of intent to limit benefits includes the phrase “including, but not limited to, all fee schedules,” the insured and any assignee provider of benefits are left to wonder what, in addition to “all fee schedules”, the limitation on reimbursement of benefits are going to be. By its efforts to avoid any conceivable gap in limiting reimbursement, the use of the phrase, “including, but not limited to, all fee schedules” creates an ambiguity that Allstate may not have intended. However, “in order for an exclusion or limitation in a policy to be enforceable, the insurer must clearly and unambiguously draft a policy provision to achieve that result.” See Auto-Owners Ins. Co. v. Anderson, 756 So.2nd 29, 36 (Fla. 2000) [25 Fla. L. Weekly S211a] and as cited in Virtual Imaging. This was not done in this case. Allstate argues that complexity of the sentence structure in its limitations paragraph should not, in and of itself, render the sentence unclear and ambiguous. Allstate argues that an ambiguity does not exist merely because an insurance contract is complex and requires analysis to interpret it. Eagle Am. Ins. Co. v. Nichols, 814 So. 2d 1083, 1085 (Fla. 4th DCA 2002) [27 Fla. L. Weekly D596a]. While this statement, standing alone, is undoubtedly correct, the entire context of that reference is instructive:
The construction of an insurance policy is a question of law for the court. See Jones v. Utica Mut. Ins. Co., 463 So. 2d 1153, 1157 (Fla. 1985). Such contracts are interpreted in accordance with the plain language of the policy, and any ambiguities are liberally construed in favor of the insured and strictly against the insurer as the drafter of the policy. See Westmoreland v. Lumbermens Mut. Cas. Co., 704 So. 2d 176, 179 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D2389a]. A policy is ambiguous where it is susceptible to two or more reasonable interpretations. See Herring v. First S. Ins. Co., 522 So. 2d 1066, 1068 (Fla. 1st DCA 1988). However, a policy is not ambiguous merely because it is complex and requires analysis to interpret it. See State Farm Fire & Cas. Co. v. Oliveras, 441 So. 2d 175, 178 (Fla. 4th DCA 1983).
Eagle Am. Ins. Co. v. Nichols, 814 So.2nd 1083,1085 (4th DCA 2002) [27 Fla. L. Weekly D596a].
There is, in fact, nothing about the sentence structure herein that can be considered complex. It is not a hard sentence to parse. It remains, however, unclear and ambiguous in its application, and must, therefore, be liberally construed in favor of the insured and strictly against the insurer as the drafter of the policy.
12. Based on the lack of any binding precedent on the issue presented, the existing conflicting circuit and county court orders on the issue presented, and the volume of cases throughout this jurisdiction and the State involving the issue presented, this Court finds that the issue framed in this case is a matter of great public importance as contemplated by Fla. R. App. P. 9.030(b)(4)(A) and 9.160 and should be certified to the Second District Court of Appeal as a matter of great public importance.
CONCLUSION
Based upon the foregoing, it is ORDERED and ADJUDGED that Plaintiff’s Motion for Final Summary Judgment is GRANTED. Defendant’s Motion for Summary Judgment is DENIED. Certification of a question of great public importance is GRANTED.
The following question, which has been revised by this Court, shall be certified to the Second District Court of Appeal as a matter of great public importance pursuant to Rule 9.030(b)(4)(A), Fla. R. App. P.:
Does a PIP policy that expressly states that “any amounts payable under this coverage shall be subject to any and all limitations authorized by Fla. Stat. §627.736,. . .including, but not limited to, all fee schedules,” clearly and unambiguously notify the insured of the methodology the insurer will apply in limiting reimbursement of PIP benefits?
The Court reserves jurisdiction to determine entitlement to attorney’s fees and costs and to determine such amounts, if any are deemed appropriate.
