24 Fla. L. Weekly Supp. 81a
Online Reference: FLWSUPP 2401SERRInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy providing that insurer will pay 80% of reasonable expenses but also providing that in no event will insurer pay more than 80% of schedule of maximum charges does not provide clear and unambiguous notice of election to limit reimbursement to permissive statutory fee schedule
CEDA HEALTH OF DOWNTOWN, a/a/o, Elio Serra, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 14-005314, Division 54. April 29, 2016. Stephen J. Zaccor, Judge. Counsel: Joseph A. Wolf, Landau & Associates, P.A., Hallandale Beach, for Plaintiff. Jonathan Brooks, Deerfield Beach, for Defendant.
ORDER DENYING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT
This cause came before the court on April 27, 2016 on the Defendant’s Motion for Summary Judgment. This is a breach of contract case for underpaid PIP benefits and involves Chiropractic services rendered by Ceda Health of Downtown (hereinafter the Plaintiff). State Farm Mutual Automobile Insurance (hereinafter the Defendant) contends their insurance policy and applicable endorsements properly incorporate the Medicare Fee Schedule.
After reviewing the policy of insurance, the rest of the record, and after hearing argument of counsel for the parties, and being otherwise advised in the premises, the court denies Summary Judgment in favor of the Defendant.
ANALYSIS
This case involves the Defendant’s 6910.3 policy and the accompanying 6126LS endorsement. The issue before the court involves the construction of an insurance policy, which presents a question of law to be decided by the court. Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Underwriters at Lloyd’s, London, 971 So. 2d 885, 888 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D2827b]. The 6126LS endorsement provides:
NO- FAULT — COVERAGE P
The following is added to No-Fault — Coverage P:
We will limit reimbursement of medical expenses to 80 percent of a properly billed reasonable charge, but in no event will we pay more than 80 percent of the following schedule of maximum charges:
The issue before the court is whether this language allows the Defendant to “exercise the option” to use the fee schedules. Geico General Ins. Co. v. Virtual Imaging Services, Inc., 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a] (Virtual).
In Virtual, the Supreme Court held “a PIP insurer cannot take advantage of the Medicare fee schedules to limit reimbursements without notifying its insured by electing those fee schedules in its policy.” Id at 160. More recently in Orthopedic Specialists v. Allstate Ins. Co., 177 So. 3d 19 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1918a], the Fourth District Court of Appeal expanded the notice requirement to include an exclusive election.1
To elect a payment limitation option, the PIP policy must do so “clearly and unambiguously.” A policy is not sufficient unless it plainly and obviously limits reimbursement *26 to the Medicare fee schedules exclusively. The policy cannot leave Allstate’s choice of reimbursement method in limbo under the guise of the words, “subject to” without incorporating specific words to that effect. The policy must make it inescapably discernable that it will not pay the “basic” statutorily required coverage and will instead substitute the Medicare fee schedules as the exclusive form of reimbursement.
Id at 25-26. The policy at issue clearly notifies an insured, or a provider as an assignee, that the Defendant intends to limit any payments to the maximum allowable rate pursuant to the fee schedule. However, it does not do so exclusively. The policy does not make it “inescapably discernable” that the Defendant intends to rely on the fee schedule to the exclusion of the statutorily required coverage. In fact, it does the opposite. The 6126LS endorsement language makes it “inescapably discernable” that the Defendant intends to pay the statutorily required coverage OR the fee schedule. Pursuant to Orthopedic Specialists v. Allstate Ins. Co., that is not permissible.
Accordingly, the Defendant’s Motion for Summary Judgment is hereby DENIED.
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1 The First and Second Districts have held otherwise as it relates to Allstate’s PIP policy, however this Court sits in the Fourth District Court of Appeal and this reflects the current state of the law in this jurisdiction. See, Allstate Fire & Cas. Ins. v. Stand-Up MRI of Tallahassee, P.A., 40 Fla. L. Weekly D693b (Fla. 1st DCA 2015), and Allstate Indem. Co. v. Markley Chiropractic & Acupuncture, LLC, 41 Fla. L. Weekly D793b (Fla. 2d DCA 2016)
