22 Fla. L. Weekly Supp. 935b
Online Reference: FLWSUPP 2208MSASInsurance — Personal injury protection — Discovery — Depositions — Scope of inquiry — Reasonableness of charges — Where insurer has elected to reimburse claims pursuant to statutory fee schedule, reasonableness of charges is not issue about which discovery is permitted
NEW SMYRNA IMAGING, LLC, as assignee of Michaela Sass, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2013 21870 CONS. March 4, 2015. Shirley A. Green, Judge. Counsel: David B. Alexander, Bradford Cederberg, Orlando, for Plaintiff. Robert A. Kingsford, Maitland, for Defendant.ORDER REGARDING MARCH 2, 2015 HEARING
THIS MATTER having come before this Honorable Court on 1) Plaintiff’s Motion for Protective Order as to the Deposition of Anthony Wheeler; MD (COS 2/12/15); 2) Plaintiff’s Motion for Protective Order as to the Deposition of Anthony Wheeler, MD and Traci Postell (COS 3/24/14); 3) Defendant’s Motion to Compel Better Answers to Interrogatories (COS 2/3/15); 4) Defendant’s Amended Motion to Compel Deposition of Anthony Wheeler, MD (COS 2/3/15); 5) Defendant’s Motion to Shorten Time for Discovery (COS 2/6/15); 6) Defendant’s Motion to Continue Summary Judgment Hearing (COS 2/16/15); and 7) Defendant’s Motion to Overrule Objections to Notice of Production from Non-Party and Allow Issuance of Subpoenas (COS 2/26/15) and this Honorable Court having heard arguments of counsel on March 2, 2015 and being otherwise fully advised in the premises, it is hereby,
ORDERED AND ADJUDGED that:
1. This is a claim for Personal Injury Protection (hereinafter “PIP”) and Medical Payments (hereinafter “Medpay”) benefits arising out of a motor vehicle collision that occurred on or about 12/29/2009.
2. The Plaintiff in this matter is NEW SMYRNA IMAGING, LLC, as assignee of Michaela Sass.
3. At all times material to the subject cause of action, the assignor, Sass, was covered under a policy of automobile insurance by the Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, (hereinafter “STATE FARM”), which provided PIP benefits for injuries Sass sustained in the above-referenced accident.
4. The Plaintiff provided medical services to Sass on 1/11/2010 and submitted a bill for such services to the Defendant.
5. The Defendant allowed and paid Plaintiff’s bill at the reduced amount of 200% of Medicare Part B Fee Schedule. Defendant reimbursed Plaintiff $1006.02 for CPT Code 72141 and $1066.28 for CPT Code 72148. It is undisputed that $1006.02 represents 200% of the 2007 Participating Level of Medicare physician fee schedule for CPT Code 72141 and it is further undisputed that $1066.28 represents 200% of the 2007 Participating Level of Medicare physician fee schedule for CPT Code 72148. The Court has already taken compulsory judicial notice of these amounts pursuant to its February 12, 2015 Order on Plaintiff’s Motion to Take Compulsory Judicial Notice. 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.
6. This Court relies on Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a].
7. 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.
8. The methodologies are separate and distinct
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, once an insurer has attempted to limit reimbursement pursuant to the statute’s schedule of maximum charges, which Defendant has done in this matter, the primary question to be determined is whether its policy of insurance provides sufficient notice to its insured. As a result of the above, this matter is distinguishable from the case cited by Defendant of State Farm Mutual Automobile Ins. Co. v. New Smyrna Imaging (a/a/o Ryan Campbell), Case No. 2013-10005-APCC (involving 26 consolidate cases), 7th Jud. Cir., Appellate Ct. (September 11, 2014) [22 Fla. L. Weekly Supp. 508a]. In New Smyrna Imaging (a/a/o Ryan Campbell), it was agreed by the parties “that State Farm chose a “reasonable” payment methodology, as set forth in §627.736(5)(a)1.” Id. There is no such agreement in the current case. In fact, the record and actions of the Defendant in this matter reveals that the Defendant utilized the schedule of maximum charges (i.e., (5)(a)2.), not (5)(a)1.
9. Defendant’s argument that it can challenge the reasonableness of Plaintiff’s charge, even after Defendant has utilized the schedule of maximum charges when processing the provider’s bill is contrary to the statute and the case law.
10. The purpose of (5)(a)2. was to reduce costs and eliminate litigation regarding reasonableness of charge. In other words, since Defendant utilized the schedule of maximum charges 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” of Plaintiff’s charge when it calculated reimbursement according to the schedule of maximum charges (i.e., 200% of the 2007 Medicare Part B Participating Physician Fee Schedule ((5)(a)2.f.)). 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. 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.
11. The Court finds that the reasonableness of Plaintiff’s charge is not at issue in this matter. Discovery as to the reasonableness of Plaintiff’s charge is irrelevant, immaterial, and not reasonably calculated to lead to admissible evidence considering the legal issue before this Court (i.e., whether the policy of insurance provides sufficient notice to its insured). 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).
12. Plaintiff’s Motion for Protective Order as to the Deposition of Anthony Wheeler, MD (COS 2/12/15) is GRANTED.
13. Defendant’s Amended Motion to Compel Deposition of Anthony Wheeler, MD (COS 2/3/15) is DENIED.
14. Plaintiff’s Motion for Protective Order as to the Deposition of Anthony Wheeler, MD and Traci Postell (COS 3/24/14) is GRANTED as this Court previously struck from the record Defendant’s Sixth Affirmative Defense surrounding Medical Director and licensing issue.
15. Defendant’s Motion to Compel Better Answers to Interrogatories (COS 2/3/15) is GRANTED in part and DENIED in part. Based upon the analysis above, Defendant’s Motion is DENIED as to numbers four (4), five (5), eight (8), and nine (9) through seventeen (17) as said interrogatories are irrelevant and immaterial in a (5)(a)2. analysis. Defendant’s Motion is GRANTED as to numbers two (2) and three (3) as Plaintiff shall set forth original answer but remove objections. Defendant’s Motion is GRANTED as to number six (6), seven (7) and nineteen (19).
16. Defendant’s Motion to Shorten Time for Discovery (COS 2/6/15) is MOOT. Plaintiff responded to Defendant’s discovery.
17. Defendant’s Motion to Continue Summary Judgment Hearing (COS 2/16/15) is DENIED.
18. Defendant’s Motion to Overrule Objections to Notice of Production from Non-Party and Allow Issuance of Subpoenas (COS 2/26/15) is DENIED.
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