23 Fla. L. Weekly Supp. 588a
Online Reference: FLWSUPP 2306DIAZInsurance — Personal injury protection — Coverage — Medical expenses — Insurer that breached contract by utilizing statutory fee schedule not incorporated in policy when processing medical provider’s bill is not entitled to challenge reasonableness of charges — Deductible — Insurer’s application of deductible to reduced charges does not comply with requirement of PIP statute that deductible be applied to 100% of expenses and losses — Insurer breached policy by applying deductible of $1.001.34 when policy provides for $1,000.00 deductible
ALTAMONTE SPRINGS DIAGNOSTIC IMAGING, INC. D/B/A MID FLORIDA IMAGING A/A/O MARIELA DIAZ, Plaintiff, vs. STAR CASUALTY INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2012-SC-010389-O, Division 70. August 18, 2015. Honorable Andrew L. Cameron, Judge. Counsel: Pamela Rakow-Smith, Eiffert & Associates, P.A., Orlando, for Plaintiff. John Eckard, II, Roig Lawyers, Orlando, for Defendant.
ORDER GRANTING PLAINTIFF’SMOTION FOR FINAL SUMMARY JUDGMENT
THIS MATTER came before the Court for hearing on June 23, 2015, on Plaintiff’s Motion for Final Summary Judgment, filed on April 17, 2014, and being considered by the Court and otherwise being fully advised of the premises, the Court finds as follows:
UNDISPUTED FACTS
The Defendant, Star Casualty Insurance Company, issued a policy of No-Fault insurance covering the assignee, Mariela Diaz. The policy contained a $1,000.00 deductible.
Ms. Diaz was involved in a motor vehicle accident on August 31, 2010, and received injuries for which she sought treatment, which included services provided by the Plaintiff, Altamonte Springs Diagnostic Imaging.
The Plaintiff submitted a bill to Star Casualty on behalf of Ms. Diaz in the amount of $1,834.75.
The Defendant reduced the bill to an amount equal to 200% of Medicare Part B and then applied the deductible to that amount of $1,001.34.
The Defendant paid $869.03 of the bill originally submitted to the Plaintiff.
The Plaintiff moves for Final Summary Judgment on the grounds that:
a) Defendant impermissibly elected to utilize a fee schedule in derogation of their policy of insurance;
b) Defendant improperly applied the deductible to the submitted bill; and
c) Defendant over-applied the deductible to the submitted bill.
IMPROPER ELECTION
The Florida Supreme Court has clearly identified two alternative methodologies contained within subsections (5)(a)2 and (5)(a)1 of Section 627.736, Florida Statutes. The Court recognized in Geico General Insurance Company v. Virtual Imaging Services, SC 12-905 (Fla. July 3, 2013) [38 Fla. L. Weekly S517a], that an insurer must clearly and unambiguously elect one of these two methodologies to determine the reasonableness of a submitted bill. Therefore, a PIP insurer may not utilize a Medicare fee schedule, contained within subsection (5)(a)2, to limit reimbursement without first notifying its insured of its election to do so in its policy of insurance.
The Defendant’s policy of insurance, which is a part of the record in this matter, reveals that the Defendant has not endorsed the payment methodology contained within Section 627.736(5)(a)2, Florida Statutes.
Therefore, the Court finds that since the Defendant chose to reduce the Plaintiff’s bills by 200% of the Medicare Part fee schedule which is enumerated in Section 627.736(5)(a)2, Florida Statutes, the Defendant is not entitled to challenge the reasonableness of the Plaintiff’s charges. See Altamonte Springs Diagnostic Imaging, Inc. d/b/a Mid Florida Imaging a/a/o Elijah Gonzalez v. Star Casualty Insurance Co., Case No. 2012-SC-010386-O (Fla. 9th Cir. County, October 28, 2014); Emergency Physicians of Central Florida, LLP a/a/o Samantha Jordan v. Progressive Select Ins. Co., Case No. 2008-SC-4256-O (Fla. 18th Cir. County October 30, 2013), Florida Hospital Medical Center a/a/o Farrah Ignace Jean v. Progressive American Ins. Co., Case No. 2013-SC-6527-O (Fla. 9th Cir. County, April 1, 2014)
IMPROPER APPLICATION OF DEDUCTIBLE
The Defendant reduced all medical charges submitted by all providers pursuant to 200% of Medicare Part B fee schedule and then applied the insured’s deductible to the reduced amount. The Defendant reduced the patient’s medical bills prior to application of the insured’s deductible.
The Court first looks to the plain wording of Section 627.739(2), Florida Statutes:
“The deductible amount must be applied to 100 percent of the expenses and losses described in s. 627.736. After the deductible is met, each insured is eligible to receive up to $10,000.00 in total benefits described in s. 627.736(1).”
The Court finds this language to be clear. “Where the wording of the (No-Fault) law is clear and amenable to a logical and reasonable interpretation, a court is without power to diverge from the intent of the Legislature as expressed in the plain language of the statute” Warren vs. State Farm Mutual Auto Ins. Co., 899 So.2d 1090, 1095 (Fla. 2005) [30 Fla. L. Weekly S197b]
See also, Emergency Physicians of Central Florida LLP a/a/o Asmaa Karanl, v. Progressive American Ins. Co., 20 Fla. L. Weekly Supp. 689a (Fla. 9th Cir. County January 30, 2013); New Smyrna Imaging, LLC a/a/o Megan McClanahan v. Garrison Property and Casualty Ins. Co., 20 Fla. L. Weekly Supp. 77a (Fla. 18th Cir. County October 10, 2012).
The Defendant did not apply the insured’s deductible to 100 percent of the expenses and losses described in Section 627.736, Florida Statutes. This resulted in underpayment to Plaintiff.
OVER-APPLICATION OF DEDUCTIBLE
The Defendant applied a deductible of $1,001.34 to the Plaintiff’s submitted medical bills. The Defendant’s Declaration of Coverages Page, which is a part of the record in this matter, reveals that the insured contracted with Defendant for a $1,000.00 deductible under its Personal Injury Protection Coverage, not a $1,001.34 deductible. Thus, there is no dispute that Defendant breached its policy of insurance and violated Section 627.739(2), Florida Statutes, when it over-applied the insured’s deductible to the patient’s medical bills, which resulted in an underpayment to Plaintiff in the amount of $1.34.
The Defendant contends the “de minimus non-curat lex” doctrine applies to this underpayment, as the over application of the insured’s deductible resulted in a nominal amount of $1.34 over the contracted $1,000.00 deductible.
Assuming that the doctrine of “de minimus non-curat lex” applied to this small claims action, the amount at issue in this case is not limited to the $1.34 over application of the deductible, as Defendant contends. In fact, the amount owed to the Plaintiff is $498.731, thereby, rendering Defendant’s de minimus argument moot.
IT HEREBY ORDERED AND ADJUDGED that:
1. Plaintiff’s Motion for Final Summary Judgment is hereby GRANTED.
2. The Court finds that there is no genuine issue of material fact as to the Defendant’s breach its policy of insurance by processing the Plaintiff’s claim pursuant to the fee schedules located in Section 627.736(5)(a)2, Florida Statutes, when such an election was missing from the Defendant’s policy of insurance.
3. The Court further finds that there is no genuine issue of material fact as to the Defendant’s breach of its policy of insurance in its application of the insured’s deductible by making reductions to the patient’s medical bills prior to applying the insured’s deductible.
4. The Court further finds that there is no genuine issue of material fact as to the Defendant’s breach of its policy of insurance by over-applying the insured’s deductible.
5. As such, the Plaintiff is entitled to recover $498.73, plus applicable interest, from the Defendant.
6. The Court reserves jurisdiction over this matter to consider any timely filed motions for attorney’s fees and costs.
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1calculated as $1,834.75 billed by Plaintiff, minus $125.00 remaining deductible (had the deductible been applied correctly) equals $1,709.70, which at 80% is $1,367.76, subtracting payments of $869.03, equals $498.73).
