23 Fla. L. Weekly Supp. 174a
Online Reference: FLWSUPP 2302CHAVInsurance — Personal injury protection — Coverage — Medical expenses — Declaratory judgment — Insurer is entitled to summary judgment as to count for declaratory relief alleging that medical provider is in doubt as to rights under policy and law due to contrary information provided in explanation of review — Because EOR is extrinsic to policy and cannot alter rights and obligations under policy, any alleged doubt created by EOR is not sufficient to create bona fide present controversy requiring declaratory relief
A & O SERVICES, CORP. a/a/o (Chavez, Eugenio), Plaintiff, vs. STATE FARM FIRE AND CASUALTY CO., Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County. Case No. 2011 8300 SP 21 (01). Case No. 59-A268-086. November 2, 2012. Honorable Jacqueline Schwartz, Judge.
ORDER DENYING PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT COUNT II
THIS CAUSE came before the Court for hearing on October 5, 2012 and the court having reviewed the Motion, the Court file, legal authorities and having heard argument of counsel the Court finds as follows:
1. The Plaintiff in this action filed a two Count Complaint. Count I alleges Breach of Contract and Count II alleges Petition for Declaratory Relief. Count II of Plaintiff’s Amended Complaint asks this Court to declare the rights of the parties under the law and the policy of insurance and alleges that Plaintiff is in doubt as to its rights based on contrary information Defendant has in its Explanations of Review (EOR) regarding its methodology of reimbursement and regarding the balance billing provision in Section 627.736(5)(a)(2)(f), Florida Statutes (2009).
2. Plaintiff’s Motion for Summary Judgment: Count II concedes that Defendant’s policy of insurance requires it to pay 80% of reasonable expenses for necessary treatment. During oral argument, counsel for Plaintiff alleged that Plaintiff’s doubt as to its rights and obligations is created by the language in Defendant’s EOR. Plaintiff failed to cite any doubt created by the terms of the policy of insurance and Florida law.
3. This Court finds that the terms of the policy of insurance at issue are clear and unambiguous and consistent with applicable Florida law, Section 627.736, Florida Statutes (2009). Specifically, policy form 9910.7 and Amendatory Endorsement 6910.3 are wholly consistent with Sections 627.736(1)(a) and 5(a)(1), Florida Statutes (2009) and provide Defendant with multiple ways in which to determine a reasonable amount for reimbursement of medical services, inclusive of consideration to state and federal fee schedules applicable to automobile and other insurance coverages.
4. This Court further finds that Defendant’s EOR is not part of the policy of insurance, but is extrinsic evidence, that cannot alter, change or amend the rights and obligations that exist under the subject policy of insurance. See National Chico. Ins. Co. v. Parsons, 341 So. 2d 220, 221-22 (Fla. 3d DCA 1976)(extrinsic letter could not change or amend terms of insurance policy) and United Auto. Ins. Co. v. A 1st Choice Healthcare Systems, 21 So.3d 124 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2268a] (PIP Statute does not afford a private right of action against insurer for failing to provide an explanation of benefits to insured within 30 days of receiving claim).
5. Therefore, any alleged doubt created by an EOR is not sufficient to create a bona fide present controversy mandated by Chapter 86, Florida Statutes. Martinez v. Scanlan, 582 So. 2d 1167, 1170 (Fla. 1991) (quoting May v. Holley, 59 So. 2d 636, 639 (Fla. 1952); and GEICO v. Mirth, 333 So. 2d 545, 547 (Fla. 3d DCA 1976) (trial court was not in error in concluding that there was no need for declaratory judgment as to meaning or interpretation of provisions of automobile policy that are clear and unambiguous and only factual allegations remained to be adjudicated).
6. This Court is persuaded by the cases of MRI Associates of St. Pete, Inc. v. State Farm Mutual Automobile Ins. Co., 755 F. Supp.2d 1205 (M.D. Fla. 2010) and All Family Clinic of Daytona Beach, Inc. v. State Farm Mutual Automobile Ins. Co., 280 F.R.D. 688 (S.D. Fla. 2012) in which two Federal Courts analyzed the exact policy language at issue.
7. In MRI Associates, like in the instant case, plaintiff’s argued that State Farm may not use the statutory fee schedule in calculating a reasonable amount unless the policy is first amended to include the fee schedule. MRI Associates at 1208. After reviewing the exact same policy language that is at issue in the instant case, the Court dismissed the counts for declaratory and injunctive relief with prejudice, reasoning:
Plaintiff’s argument assumes the statutory PIP fee schedule is not part of Defendant’s policy and that Defendant’s cannot pay according to fee schedule without first amending their policy . . . Plaintiff’s argument also assumes Defendants are not allowed to use the fee schedule in determining a reasonable amount. This assumption is contrary to the language of the policies which allow Defendants to consider ‘various federal and state medical fee schedules applicable to automobile and other insurance coverages’ in determining the reasonableness of reimbursement. Plaintiff certainly has the right to contest whatever amount the insurer arrives at is not 80% of “reasonable amount,” but the policy language grants Defendants wide latitude in how they make their internal calculation. Any attempt by Plaintiff to seek declaratory relief that Defendants cannot consider Florida’s PIP fee schedule, or any other medical fee schedule, would fail . . . Declaratory relief is not available where the issue is whether an unambiguous contract has been breached. Id. at 1210.
8. Moreover, in All Family, the Court noted that in Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.2d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a], the Court looked to the contract between the insurer and the provider to determine which payment calculation methodology was elected: 80% of all reasonable expenses under 627.736(1)(a) and 5(a)(1) or 80% of the listed schedule of maximum charges (fee schedule) under 627.736(5)(a)(2)(f). All Family at 693. After analyzing the exact same policy language at issue in this case, the All Family Court concluded that State Farm elected to reimburse 80% of reasonable expenses. Id.
9. Therefore, the Court finds that the real doubt and controversy are whether Plaintiff’s charges are reasonable, which is one of the essential elements of Count I of Plaintiff’s Complaint. See Derius v. Allstate Indem. Co., 723 So. 2d 271, 272 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a].
ACCORDINGLY it is hereby ORDERED and ADJUDGED that Plaintiff’s Motion for Summary Judgment: Count II is denied. Defendant is entitled to a Final Judgment as to Count II.
