22 Fla. L. Weekly Supp. 962a
Online Reference: FLWSUPP 2208KOPYInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy providing that insurer will pay 80% of reasonable charges but also providing that amount payable “shall be subject to any and all limitations” authorized by PIP statute does not provide clear and unambiguous notice of intent to limit reimbursement to Medicare Part B fee schedule
MR SERVICES I, INC. D/B/A C&R IMAGING OF HOLLYWOOD, (Nikita Kopylov), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-05817 COCE (50). February 3, 2015. Peter B. Skolnik, Judge. Counsel: Abdul-Sumi Dalal, Lander Dalal & Associates, P.L., Fort Lauderdale, for Plaintiff. Sean Sweeney, Office of the General Counsel, UAIC Trial Division, Miami Gardens; and Rashad El-Amin, for Defendant.
ORDER DENYING DEFENDANT’SMOTION FOR FINAL SUMMARY JUDGMENTAND GRANTING PLAINTIFF’S MOTION FORFINAL SUMMARY JUDGMENT IN PART
THIS CAUSE, having come to be heard before the Court on Defendant’s Motion for Final Summary Judgment and Plaintiff’s Motion for Final Summary Judgment, and the Court, after reviewing the pleadings, the evidence and argument of counsel, and otherwise being fully advised in the Premises; makes the following findings:
As the Defendant has stipulated to loss, coverage, relatedness and necessity, there are only two issues remaining before the Court: (1) Whether United Automobile Insurance Company’s (hereinafter “UNITED”) policy of insurance, UAIC 200(7/11), contains a clear and unambiguous election to utilize the permissive Medicare cap methodology as its payment method under 627.736(5)(a)(2)(f) and; (2) Whether the Plaintiff’s charges are reasonable.
After considering the evidence, case law submitted by each party and after approximately two hours of argument, this Court finds that UNITED’s policy fails to make a clear and unambiguous election in paying medical bills as required by Geico General Insurance Co. v. Virtual Imaging Services, Inc. (“Virtual II”), 90 So.3d 321 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D985b] aff’d 79 So. 3d 55, 2013 WL 3332385 (Fla. 2013) [38 Fla. L. Weekly S517a].
UNITED’s policy, in relevant part states:
(a) Medical benefits — eighty percent of all reasonable charges for medically necessary expenses. Any amounts payable under this coverage shall be subject to any and all limitations, authorized by section 627.736, or any other provision of the No-Fault Act, including, but not limited to, all fee schedules.
UNITED contends that the above provision is a clear and unambiguous election to the fee schedule limitations as its method for determining reasonable charges and that the only limitation authorized by section 627.736, as it pertains to the bills in this case, is the 200% Medicare cap, and as a result, it is unambiguously electing to use the Medicare cap methodology as its payment method.
The Plaintiff contends that UNITED fails to clearly and unambiguously include this methodology in its policy, as required by Geico General Insurance Co. v. Virtual Imaging Services, Inc. and as a result, UNITED is obligated to 80% of the “reasonable expenses” billed by the Plaintiff.
In essence, the policy states it will pay “80% of all reasonable charges. . .”. Reasonable is not defined anywhere in UNITED’s policy. Like many other policies, UNITED policy’s contains many defined terms, however it provides no definition for “reasonable.”
UNITED drafted its policy and as such, had every opportunity to define this basic terms. UNITED cannot not complain about the ambiguities in its policy where it alone chose not to define such basic terms.
UNITED’s policy goes on to state “any amounts payable under this coverage shall be subject to any and all limitations, authorized by section 627.736, or any other provision of the No-Fault Act, including, but not limited to, all fee schedules.” (Emphasis added)
UNITED’s policy contains what this Court finds to be an enabling provision that allows UNITED to subject its payment methodology to either Fla. Stat. 627.736(5)(a)(1) or 627.736(5)(a)(2). This enabling provision provides no specific language to place the insured on notice as to which methodology UNITED will choose. According to its own policy language, by use of the phrases “subject to” and “including, but not limited to”, UNITED has not incorporated the optional provisions of the Medicare fee cap into the policy. The only provision in UNITED’s policy is nothing more than what has already been determined, that PIP policies are “subject to” these provisions. However, in order for UNITED to take advantage of the permissive fee schedule, UNITED must clearly and unambiguously incorporate the permissive provisions into its policy of insurance.
Even if the term “subject to” were deemed to be limiting in nature, the provision makes amounts payable subject to any and all limitations authorized by 627.736. This is problematic as Florida Statute 627.736 clearly provides several limitations in addition to the permissive fee schedule of maximum charges under FS 627.736(5)(a)2.f. in that a medical provider is limited to charging the insurer only a reasonable amount for his services and the amount charged is limited to no more than what the provider customarily charges for like services under FS 627.736(5)(a)(1). Moreover, the provision, as written, is in the conjunctive. Thus, the policy can be interpreted as subjecting the amounts payable to either any and all limitations “or” any other provisions of the Florida No-Fault Act. . . including, but not limited to all fee schedules. Not only does this language fail to clearly and unambiguously elect the fee schedules under 627.736(5)(a)(2) it subjects the amounts payable to all provisions of the statute including 627.736(5)(a)(1).
UNITED has done nothing more than enable itself to chose which option, either the (5)(a)(1) or (5)(a)(2) methodology, in which to reimburse benefits, and therefore fails to clearly and unambiguously elect to limit reimbursement to the permissive fee schedule.
ANALYSIS
Under Florida Law, the discretionary limitation language in § 627.736(5)(a) does not incorporate into an insurance contract that is absent such express limitation language. The statutory provisions that are in force at the time of the contract formation determine the rights and obligations of the parties. Moreover, it is only those provisions which are deemed to be mandatory that are incorporated into a contract. Lubermans Mut. Casualty Co. v. August, 530 So.2d 293, 295 (Fla. 1988). In an insurance contract, the rights and obligations of the parties are governed under contract law since they arose out of an insurance contract. Id. (citing Allstate Ins. Co. v. Clendening, 289 So.2d 704 (Fla. 1974).
It is well settled that in order to take advantage of the more limited reimbursement provided by Fla. Stat. §627.736(5)(a)(2)(f), the insurer must specify that method to the exclusion of any others. Geico General Insurance Co. v. Virtual Imaging Services, Inc. (“Virtual II”), 90 So.3d 321 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D985b] aff’d 79 So. 3d 55, 2013 WL 3332385 (Fla. 2013) [38 Fla. L. Weekly S517a]; DCI MRI, Inc. v. Geico Indem. Co., 79 So.3d 840 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D170e]; Geico Indem. Co. v. Virtual Imaging Servs., Inc. (“Virtual I”), 79 So.3d 55 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a]; Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63, 67 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a]. Thus, UNITED is not permitted to use the “200% Medicare” as the exclusive methodology to limit reimbursement unless it can demonstrate that amount is the maximum reasonable amount under some alternative means. Geico Indem. Co. v. Virtual Imaging Servs., Inc. (“Virtual I”), 79 So.3d 55, 57 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a](“Furthermore, as section 627.736(5)(a)(2) provides that insurers “may” consult the Medicare fee schedule, it follows that, under the statute, insurers who choose not to do so have recourse to some alternative means for determining a reimbursement amount.”).
The decision by the Fourth District Court of Appeal in Kingsway Amigo Insurance Company v. Ocean Health, Inc., approved by the Florida Supreme Court in “Virtual II” held that an insurer may not reduce charges pursuant to section 627.736(5)(a)2.f. unless the insurance policy expressly and unambiguously so states. Kingsway, at 76. An insurer may provide greater coverage than mandated by Florida’s No-Fault law, provided that the insurance policy expressly provides for such. Id. The specific policy provision in Ocean Health, Inc. stated that “[t]he Company will pay in accordance with the Florida Motor Vehicle No Fault Law, as amended, to or for the benefit of the injured person: 80% of medical expenses.” Id. at 65. Further, said policy defined medical expenses as “eighty percent of reasonable expenses for medically necessary medical . . . services.” Id. at 64-65. The insurer claimed that it was entitled to limit reimbursement to the participating physician’s fee schedule pursuant to its insurance policy, section 627.736(5)(a)2.f., and section 627.7407(2). See Id. at 64-66. The appellate court adopted the reasoning of the trial court, holding that section (5)(a)2.f. “allows an insurer to choose between two different payment calculation methodology options,” either the permissive methodology in (5)(a)2 or (1)(a). Id. at 67.
Based upon these findings, this Court concludes that UNITED’s 07/11 policy fails to satisfy the Virtual requirements for a clear and unambiguous election of FS 627.736(5)(a)(2) methodology as its payment method. Accordingly, the policy is construed against UNITED and UNITED is obligated to pay 80% of the “reasonable expenses” billed by the Plaintiff.
The issue as to whether the amount charged by the Plaintiff was not reached at the hearing and has been reset. Therefore it is,
ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Summary Judgment is granted in part as to the issue of the application of the permissive fee schedule.
