23 Fla. L. Weekly Supp. 683a

Online Reference: FLWSUPP 2307BLAKInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy providing that any amounts payable “shall be subject to any and all limitations” authorized by PIP statute “including, but not limited to, all fee schedules” does not provide clear and unambiguous notice of intent to limit reimbursement to Medicare Part B fee schedule

ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Appellant-Defendant, v. HALLANDALE OPEN MRI LLC, a/a/o Alexia Blake, Appellee-Plaintiff. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 13-461 AP. L.T. Case No. 12-24263 SP 25 (3). December 7, 2015. On appeal from a final judgment rendered by the Miami-Dade County Court, Hon. Patricia Marino Pedraza. Counsel: Douglas G. Brehm & Suzanne Youmans Labrit from Shutts & Bowen LLP and Peter J. Valeta from Meckler Bulger Tilson Marick & Pearson LLP, for Appellant-Defendant. Marlene S. Reiss, the Law Offices of Marlene S. Reiss, P.A., and Michael J. Feldman Law Office of Michael J. Feldman, P.A., for Appellee-Plaintiff.

Cert. dismissed (on rehearing).42 Fla. L. Weekly D2503a (Allstate Fire and Casualty Insurance Company v. Hallandale Open MRI LLC, Case No. 3D16-38, November 29, 2017.)

(Before HOGAN-SCOLA, CUETO, & ORSHAN, Circuit Judges.)

(PER CURIAM.) Reimbursing Hallandale Open MRI LLC (“Provider”) pursuant to a personal injury protection (“PIP”) policy serves as the basis for Allstate Fire and Casualty Insurance Company’s (“Insurer or “Insurance Company”) appeal. In the county court proceedings, both litigants stipulated to the facts, the relevant policy provision, and the dispositive issue. Adopting the stipulated facts, the county court found the policy insufficient for the Insurance Company to limit reimbursement to the Provider pursuant to the Medicare Part B fee schedule, § 627.736(5)(a)2.f., Fla. Stat. (2010), and entered judgment in the Provider’s favor. In this appeal, we consider whether the policy sufficiently notified the Provider regarding the Insurer’s election to reimburse the Provider pursuant to section § 627.736(5)(a)2.f.’s Medicare Part B schedule.Florida Supreme Court and District Court Case Law

In Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., the Florida Supreme Court held that “neither section 627.7404(2) nor the policy’s incorporation of the PIP statute alters the fact that the insurer cannot take advantage of the Medicare fee schedules to limit reimbursements without notifying its insured by electing those fee schedules in its policy”. 141 So. 3d 147, 159 (Fla. 2013) [38 Fla. L. Weekly S517a]. Applying Virtual Imaging, the first and fourth districts issued contrasting opinions regarding the provision at issue here.

In Allstate Fire & Cas. Ins. v. Stand-Up MRI, the first district reviewed a policy, which stated that the amounts payable “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 . . . including, but not limited to, all fee schedules”. 40 Fla. L. Weekly D693b at *2 (Fla. 1st DCA Mar. 18, 2015), review pending, SC15-962. The first district concluded that the policy provided “sufficient notice” regarding Allstate’s “election to limit reimbursements” pursuant to the fee schedules; the first district reached its conclusion based upon “the policy’s plain statement that reimbursements ‘shall’ be subject to the limitations in § 627.736, including ‘all fee schedules’ ”. Id We interpret the first district’s decision as implying that a policy’s reference alone to any limitations authorized by section 627.736 sufficiently notifies a policyholder regarding the insurer’s option to reimburse pursuant to the Medicare Part B schedule.

In contrast to the first district, the fourth district applied the supreme court’s Virtual Imaging decision differently and found the policy provision ambiguous. Orthopedic Specialists v. Allstate Ins. Co., 40 Fla. L. Weekly D1918a at *6 (Fla. 4th DCA Aug. 19, 2015). The fourth district stated that “the bare reference to the PIP statute was insufficient to put the insured and providers on notice that the insurer” would “employ the Medicare fee schedules”. Id. at *1 (emphasis added). The fourth district stated that although the policy under review in Virtual Imaging lacked “any indication that the insurer elected the Medicare fee schedules, this does not in turn mean that any type of reference to the fee schedules will suffice”. Id. at *6 (emphasis added). The fourth district certified conflict with Stand-Up MRI. Id. We interpret Orthopedic Specialists as holding that a policy’s reference alone to any limitations authorized by section 627.736 does not sufficiently notify policyholders that the insurer will reimburse pursuant to section 627.736(5)(a)2.f.

As of November 12, 2015, the Third District Court of Appeal issued no opinion discussing the conflict between the first and fourth districts. However, in Virtual Imaging, the supreme court approved Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc. (“Virtual II”), 90 So. 3d 321 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D985b], and also approved Geico Indem. Co. v. Virtual Imaging Servs., Inc. (“Virtual I”), 79 So. 3d 55 (Fla. 3d DCA 2012) [36 Fla. L. Weekly D2597a], review denied, 137 So. 3d 1019 (Fla. 2014), to the extent Virtual I remained consistent with the supreme court’s decision. Virtual Imaging, 141 So. 3d at 160.

In Virtual Imaging, the supreme court articulated the provision at issue in Virtual II: Geico “will pay, in accordance with, and subject to the terms, conditions, and exclusions of the Florida Motor Vehicle No-Fault Law . . . .” 141 So. 3d at 157-158. The court held that because “the policy did not reference the permissive Medicare fee schedule method of calculating reasonable medical expenses, GEICO was not permitted to limit reimbursement in accordance with the Medicare fee schedules”. Id. at 158. Indeed, the supreme court disagreed that Geico incorporated the fee schedules into its policy by writing “in accordance with the Florida Motor Vehicle No-Fault Law” into the policy. Id.

In Virtual I, the policy stated that the insurer would reimburse “ ‘in accordance with the Florida Motor Vehicle No-Fault Law. . .’ ”. 79 So. 3d at 57. The third district held that an insurance company may not limit reimbursement to “the schedule of maximum charges described in” section 627.736(5)(a) if the policy did “not make a specific election to do so”. Id. at 56 (emphasis added). The district court reasoned that section 627.736(5)(a)(2)’s permissive language itself creates ambiguity, thus providing “no indication to policyholders” as to “the amount the insurer will pay for necessary medical services”. Id. at 58 (footnote removed). We consider Virtual I more closely aligned with the reasoning in Orthopedic Specialists rather than Stand-Up MRI.The Policy at Issue

We interpret a policy’s “plain and unambiguous” language in accord with its plain meaning so “as to give effect to the policy as it was written”. Virtual Imaging, 141 So. 3d at 157. The provision at issue states:

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.

(R. at 249, ¶ 7 & 273). In comparison to the policy considered by the supreme court in Virtual Imaging, the instant policy clarifies coverage limitations more descriptively by referencing “limitations” authorized by section 627.736 and other provisions within the Florida Motor Vehicle No-Fault Law. Nonetheless, Orthopedic Specialists concluded that this same provision did not provide sufficient notice. Considering Virtual I, the supreme court’s decision approving Virtual II, and Orthopedic Specialists, we hold that this policy insufficiently notified the Provider that this Insurer would reimburse based upon limitations authorized by section 627.736(5)(a)2.f., the Medicare Part B schedule.Appellate Opinions from Florida’s Eleventh Judicial Circuit

As required by State v. Lopez, we “consider all decisions” by appellate panels from our circuit when “searching for precedents”. 633 So. 2d 1150, 1151 (Fla. 5th DCA 1994). Prior to the first district’s Stand-Up MRI decision, a circuit panel concluded that the provision at issue here¹ sufficiently notified policyholders that Allstate would apply the limitations authorized by section 627.736(5)(a)2.f. Allstate Prop. & Cas. Ins. Co. v. Royal Diagnostic Center, Inc., a/a/o Leon, 22 Fla. L. Weekly Supp. 787a (Fla. 11th Cir. Ct. Jan. 29, 2015). The Leon panel based its decision upon the supreme court’s Virtual Imaging decision as well as Allstate Prop. & Cas. Ins. Co. v. Royal Diagnostic Center, Inc., a/a/o Mondy, 21 Fla. L. Weekly Supp. 627a (Fla. 11th Cir. Ct. April 3, 2014), cert. denied, 3D14-2502 (Fla. 3d DCA Oct 22, 2014), and Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI, LLC a/a/o Politesse, 21 Fla. L. Weekly Supp. 989a (Fla. 11th Cir. Ct. June 23, 2014).

Relying upon Stand-Up MRI, a different panel decided Allstate Indem. Co. v. Gables Ins. Recovery Inc. a/a/o Jimenez, which reversed an order finding that the provision at issue here did not allow Allstate to reimburse pursuant to section 627.736(5)(a)2.f. 22 Fla. L. Weekly Supp. 1146a (Fla. 11th Cir. Ct. June 8, 2015). Although the third district declined quashing Mondy on second-tier certiorari review, certiorari denial does not constitute precedent. Shaps v. Provident Life & Acc. Ins. Co., 826 So. 2d 250, 253 (Fla. 2002) [27 Fla. L. Weekly S710a]. Therefore, Mondy carries no greater weight in our analysis due to the third district’s certiorari denial. Lopez mandates that we “consider” other circuit panel decisions, not that we follow them as binding precedent. 633 So. 2d at 1151. We respectfully disagree with our colleagues, affirm the amended judgment, and acknowledge that our contrary position destabilizes the landscape governing this issue in the county courts. We resolve the motion for appellate attorney’s fees by separate order. AFFIRMED.

__________________

¹Any difference between this instant case and the policy provisions analyzed by prior circuit appellate decisions only involves comma usage or plurality indicated by “s”.