23 Fla. L. Weekly Supp. 565a
Online Reference: FLWSUPP 2306MOYAInsurance — Personal injury protection — Coverage — Medical expenses — Where PIP policy includes endorsement that states that insurer will pay 80% of reasonable expenses as well as endorsement that limits reimbursement to permissive statutory fee schedule, policy does not clearly and unambiguously elect to apply fee schedule — No merit to insurer’s argument that Office of Insurance Regulation’s approval of policy form satisfies requirement for notice of intent to apply statutory fee schedule and eliminates any need for analysis of ambiguity and clarity of policy — Fraud — Insured’s deposition testimony does not establish that medical provider or insured knowingly perpetrated fraud and does not create direct conflict with supervising physician’s opinions as to relatedness and medical necessity of services rendered — Where supervising physician’s affidavit is sufficient to establish reasonableness of charges, and insurer did not present any evidence to contradict affidavit, summary judgment is entered in favor of provider
CEDA ORTHOPEDICS & INTERVENTIONAL MEDICINE OF FIU/KENDALL, LLC., a/a/o ROSA MOYA, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 14-3917-SP-24. October 8, 2015. Donald “D.J.” Cannava, Judge. Counsel: Robert J. Lee, Carlos del Amo, P.A., Coral Gables, for Plaintiff. Stefani Norrbin and William Kratochvil, Henderson, Franklin, Starnes & Holt, P.A., Fort Meyers, for Defendant.
ORDER GRANTING PLAINTIFF’S AMENDEDMOTION FOR SUMMARY JUDGMENT ANDDENYING DEFENDANT’S AMENDED MOTIONFOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court on September 9, 2015, on Plaintiff’s, CEDA ORTHOPEDICS & INTERVENTIONAL MEDICINE OF FIU/KENDALL, LLC a/a/o ROSA MOYA (“CEDA”), Amended Motion for Summary Judgment, and Defendant’s, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (“STATE FARM”), Amended Motion for Summary Judgment, and the Court, having considered the motions, memoranda of law, the entire Court file, the argument of counsel, the relevant legal authorities, and having been otherwise advised in the premises, makes the following findings of fact and conclusions of law:FINDINGS OF FACT
1. STATE FARM issued an automobile insurance policy to Rosa Moya (“CLAIMANT,” “insured” or “patient”), providing, among other things, personal injury protection (“PIP”) benefits to CLAIMANT, subject to numerous undated amendatory endorsements to the policy, including Amendatory Endorsement 6126LS (“Endorsement 6126LS”) and Amendatory Endorsement 6910.3 (“Endorsement 6910.3”).
2. Endorsement 6126LS provides, in pertinent part:
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. . . .
f. For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians fee schedule of Medicare Part B. However, if such service, supplies, or care is not reimbursable under Medicare Part B, then we will limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under 440.13, Florida Statutes, and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation will not be reimbursed by us.
For purposes of the above, the applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect at the time the services, supplies, or care is rendered and for the area in which such services, supplies or care is rendered, except that it will not be less than the allowable amount under the participating physicians schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B.
3. Endorsement 6910.3 provides, in pertinent part, that STATE FARM will pay:
1. Medical Expenses. 80% of all reasonable expenses incurred for:
a. medically necessary medical, surgical, X-ray, dental, ambulance, hospital, professional nursing and rehabilitative services, eyeglasses, hearing aids and prosthetic devices. . . .
To determine whether a charge is reasonable we may consider usual and customary charges and payments accepted by the provider, reimbursement levels in the community and various federal and state coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment or supply. (Emphasis added).
4. On or about April 11, 2013, CLAIMANT was in an automobile accident that caused her bodily injuries. As a result of the accident and injuries, CLAIMANT sought and received medical treatment from CEDA from April 12, 2013 through June 25, 2013.
5. Pursuant to an assignment of benefits (“AOB”) from CLAIMANT to CEDA, CEDA billed STATE FARM $11,383.00 for the medical treatment and services rendered to CLAIMANT for the above service dates.
6. STATE FARM reduced the bill by limiting reimbursement of CEDA’s charges to 80% of 200% of the permissive Medicare Part B Fee Schedule amount set forth in Florida Statute § 627.736(5)(a)(2)-(3), with the exception of CPT Code 29799 on dates of service April 24, 2014 and May 10, 2014, which were denied in total.
7. STATE FARM, after reducing said bills, paid to CEDA $5,922.39, which represents 80% of 100% of the approved amount by STATE FARM, leaving $3,184.01 as the unpaid difference between the bills as charged multiplied by 80% and the amount actually paid.
8. CEDA submitted a demand letter to STATE FARM for the $3,184.01 of unpaid PIP benefits, but STATE FARM did not pay any additional benefits in response to CEDA’s demand letter, so CEDA consequently filed the instant action.
9. Both parties moved for summary judgment: CEDA arguing that that the medical services provided by CEDA to CLAIMANT were medically necessary, related and reasonable, and that because STATE FARM did not specifically elect in its policy to reimburse according to the permissive Medicare fee schedule, STATE FARM improperly calculated reimbursement by applying the permissive Medicare fee schedule when STATE FARM reimbursed CEDA for an amount equal to 80 % of 200% of the Medicare fee schedule; and STATE FARM arguing that it gave sufficient notice in its policy of its intention to limit PIP reimbursements according to the permissive Medicare fee schedule, and that it otherwise paid the benefits due under the subject policy.
10. CEDA, in support of its Amended Motion for Summary Judgment, submitted as summary judgment evidence to the Court the affidavit of CLAIMANT’s supervising doctor, Roy Canizares, D.C. (“Dr. Canizares”), which articulates that, in Dr. Canizares’s expert opinion, within a reasonable degree of medical certainty and probability, the medical services rendered to CLAIMANT by CEDA were reasonable, medically necessary, and related to CLAIMANT’s subject automobile accident, and that the associated charges for her treatment were reasonable.
11. STATE FARM did not submit an affidavit in opposition to CEDA’s Amended Motion for Summary Judgment, but instead submitted ‘Defendant’s Response in Opposition to Plaintiff’s Amended Motion for Summary Judgment,’ which incorporates only several pages of CLAIMANT’s deposition transcript as summary judgment evidence.ISSUES
Whether STATE FARM’s PIP insurance policy language is legally insufficient, failing to authorize STATE FARM to apply the permissive Medicare fee schedule, as set forth in section 627.736(5)(a)2. of the Florida Statutes, when STATE FARM’s PIP insurance policy contains two undated policy amendatory endorsements, one of which indicates to the insured that STATE FARM would reimburse PIP benefits pursuant to the “Reasonable Amount Method,” and the other of which indicates to the insured that STATE FARM would reimburse PIP benefits pursuant to the “Medicare Fee Schedule Method.”
Whether summary judgment should be granted to CEDA regarding the reasonableness of CEDA’s charges, the relation of CEDA’s rendered medical services to the subject automobile accident, and the medical necessity of the medical services provided, when STATE FARM has not provided sufficient summary judgment evidence that the aforementioned treatment and associated billings were not medically necessary, reasonable and directly related to the automobile accident.
The Court answers each of the foregoing issues in the affirmative and grants CEDA summary judgment as to reasonableness, relation, and medical necessity.
SUMMARY JUDGMENT STANDARD
This Court must grant summary judgment to a movant when there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law. See Fla. R. Civ. Pro. 1.510. The movant for summary judgment has the initial burden of demonstrating the nonexistence of a genuine issue of material fact. Ramos v. Wright Superior, Inc., 610 So. 2d 46 (Fla. 3d DCA 1992). The Court, in determining whether there are any genuine issues of material fact, views all inferences in favor of the non-moving party. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). Once the movant tenders competent evidence supporting its motion for summary judgment, the non-moving party must come forward with counter-evidence sufficient to reveal a genuine issue of material fact; it is not sufficient for the non-moving party to merely assert that an issue does not exist. Landers v. Milton, 370 So. 2d 368 (Fla. 1979). The moving party may proffer affidavits to establish the non-existence of a genuine issue of material fact. See Almand v. Evans, 547 So. 2d 626 (Fla. 1989). Where the proponent of expert testimony offers such expert testimony, the opponent of such expert testimony, in order to create a factual issue for the trier of fact, must: (1) present countervailing expert testimony; (2) severely impeach the proponent’s expert; or (3) present other evidence which creates a direct conflict with the proffered expert opinion. Rose v. Dwin, 762 So. 2d 532, 532 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1083c]. Questions of law, such as the questions in this case, arising from the interpretation of contracts and statutes are particularly amenable to resolution by summary judgment. See, e.g., United v. Neurology, 11 Fla. L. Weekly Supp. 204b (Fla. 11th Cir. Cnty. Ct. 2004) (upholding a summary judgment in a PIP suit where the court found, as a matter of law, that the treatment at issue was reasonable, related and medically necessary).
ANALYSIS
The law in Florida is well-settled that the Florida PIP statute — § 627.736, Fla. Stat. — describes two separate and distinct PIP payment calculation methodology options. See, e.g., Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So. 3d 63, 67 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a] (the plain language of § 627.736 “allows an insurer to choose between two different payment calculation methodology options” and “anticipates that an insurer will make a choice”); Geico Gen. Ins. Co. v. Virtual Imaging Servs. Inc., 141 So. 3d 147, 156 (Fla. 2013) [38 Fla. L. Weekly S517a] (“Virtual III”) (“there are two different methodologies for calculating reimbursements to satisfy the PIP statutes reasonable medical expenses coverage mandate”) (italics in original); see also Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 90 So. 3d 321 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D985b] (“Virtual II”); Geico Indem. Co. v. Virtual Imaging Services, Inc., 79 So. 3d 55 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a] (“Virtual I”). The first method is set forth in § 627.736(1)(a) and (5)(a)1, and requires PIP insurers to pay for medical services rendered to the insured based on a fact-intensive analysis of the “reasonable” amount of the charges (the “Reasonable Amount Method”). “This is the default methodology for calculating PIP reimbursements, which also apparently results in higher reimbursements.” Allstate Fire & Casualty Ins. Co. v. Stand-Up MRI of Tallahassee, P.A., __ So. 3d __, 2015 WL 1223701 (Fla. 1st DCA Mar. 18, 2015) [40 Fla. L. Weekly D693b]. The second method is set forth in § 627.736(5)(a)2-5 and allows PIP insurers to pay for medical services based on various Medicare fee schedules and numerous other terms and conditions (the “Medicare Fee Schedule Method”). Under Kingsway and its progeny, the PIP insurer cannot rely on the Medicare Fee Schedule Method if the PIP insurance policy specifies that the PIP insurer will pay according to the Reasonable Amount Method, and furthermore, the Medicare Fee Schedule Method cannot be relied upon unless that option is “clearly and unambiguously” selected in the insurance policy “in a manner so that the insured patient and health care providers would be aware of it.” Kingsway, 63 So. 3d at 68.
Indeed, the Florida Supreme Court, in Virtual III, concluded that “notice to the insured, through an election in the policy, is necessary [if the insurer wishes to use the Medicare fee schedule] because the PIP statute, section 627.736, requires the insurer to pay for “reasonable expenses . . . for medically necessary . . . services,” but merely permits the insurer to use the Medicare fee schedules as a basis for limiting reimbursements. Id. at 150. (Citations omitted). Continuing on, the Florida Supreme Court held that “the insurer was required to give notice to its insured by electing the permissive Medicare fee schedules in its policy before taking advantage of the Medicare fee schedule methodology to limit reimbursements.” Id. Simply put, an insurer cannot use the Medicare Fee Schedule Method unless the insurer first gives adequate notice to its insured within the policy. See id.
In so holding, the Florida Supreme Court approved the decisions of Virtual I, Virtual II, DCI MRI, and Kingsway, supra. See Virtual III, 141 So. 3d at 150. In Virtual I, the Third District provided, in pertinent part:
When two distinct payment amounts are possible under the statute, it is misleading to insist that there is only one calculation methodology being used. Furthermore, as section 627.736(5)(a)(2) provides that insurers “may” consult the Medicare fee schedule, it follows that, under the statute, insurers who choose not to do so have recourse to some alternative means for determining a reimbursement amount. This is clearly, as Kingsway indicated1, affording insurers a choice between two different payment calculation methodologies. Virtual I, 79 So. 3d at 58. (Emphasis added).
As a result of the foregoing authorities, an insurer, including STATE FARM, cannot limit reimbursement according to the permissive Medicare fee schedule unless the insurer clearly and unambiguously provides adequate notice to its insurer in the policy of insurance. See also, e.g., Robert Rivera-Morales, M.D. a/a/o Fabian A. Mejia-Quintero v. State Farm Mutual Auto. Ins. Co., 22 Fla. L. Weekly Supp. 271b (11th Cir. Cnty. Ct. June 19, 2014) (finding that “Defendant is precluded from relying upon the Medicare Part B fee schedule in the reimbursement of Plaintiff’s claim as a matter of law” where Defendant “did not adopt the statutory fee schedule into its policy of insurance as expressly required under the law.”). If an insurer does not provide such notice, it is incumbent on the insurer to use the Reasonable Amount Method for reimbursement, taking into account the service provider’s usual and customary charges, community-specific reimbursement levels, and other relevant information. See § 627.736(5)(a)(1), Fla. Stat.; Virtual III, 141 So. 3d at 155-56. Although an insurer may consult the Medicare fee schedule while performing a fact-based reasonableness inquiry, the insurer cannot base its reimbursement solely on the Medicare fee schedule to the exclusion of all other methods. See id.
CONCLUSIONS OF LAW
A. STATE FARM’s undated amendatory endorsements are conflicting and irreconcilable, thereby creating a policy ambiguity that must be resolved in favor of the insured.
Because STATE FARM’s policy is ambiguous as it is inexorably susceptible to more than one reasonable interpretation due to its conflicting and irreconcilable endorsements, and because the policy must be construed liberally in favor of its insured — and by extension, CEDA — this Court finds that STATE FARM has failed to clearly and unambiguously elect one of two PIP reimbursement methodologies. Under Florida law, the interpretation of insurance contracts, such as the insurance policy in this case, is governed by generally accepted rules of construction. U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So. 2d 871, 877 (Fla. 2007) [32 Fla. L. Weekly S811a]. Florida courts look to the rules of construction “when a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of construction.” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 532 (Fla. 2005) [30 Fla. L. Weekly S633a] (quotation citation omitted). Insurance “policy language is considered to be ambiguous . . . if the language ‘is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage.’ ” State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So. 3d 566, 570 (Fla. 2011) [36 Fla. L. Weekly S469a] (quoting Travelers Indem. Co. v. PCR Inc., 889 So. 2d 779, 785 (Fla. 2004) [29 Fla. L. Weekly S774a]. When such ambiguities exist in an insurance policy, they are interpreted liberally in favor of the insured and strictly against the insurance company who drafted the policy. See, e.g., Washington Nat. Ins. Corp. v. Ruderman, 117 So. 3d 943, 951 (Fla. 2013) [38 Fla. L. Weekly S511a]; Prudential Prop. & Cas. Co. v. Swindell, 622 So. 2d 467, 470 (Fla. 1993). Moreover, insurance coverage clauses are always to be construed in the broadest possible manner to effect the greatest extent of coverage. McCreary v. Fla. Residential Prop. & Cas. Joint Underwriting Ass’n, 758 So. 2d 692, 695 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D2257c]; see also Hudson v. Prudential Prop. & Cas. Ins. Co., 450 So. 2d 565, 568 (Fla. 2d DCA 1984) (insurance coverage must be construed broadly and its exclusions narrowly). “When language in an insurance policy is ambiguous, a court will resolve the ambiguity in favor of the insured by adopting the reasonable interpretation of the policy’s language that provides coverage as opposed to the reasonable interpretation that would limit coverage.” Travelers Indem. Co., 889 So. 2d at 785-86.
Here, a reasonable insured or healthcare provider would not be able to read STATE FARM’s subject policy, including Endorsement 6126LS and Endorsement 6910.3, and intelligently discern which endorsement is controlling. Endorsement 6910.3 adopts and applies the fact-intensive “Reasonable Amount Method,” whereas Endorsement 6126LS adopts and applies the “Medicare Fee Schedule Method” — thus violating the Florida case law that an insurer must clearly and unambiguously elect the permissive Medicare Fee Schedule Method in order to rely on it. See Kingsway, 63 So. 3d at 67-68. STATE FARM, by indicating in Endorsement 6910.3 that it will determine whether charges are reasonable by, among other things, considering “the usual and customary charges and payments accepted by the provider, reimbursement levels in the community. . . .” and pay 80% of those reasonable charges, is essentially guaranteeing its insured that the insured will be reimbursed at a rate higher than the permissive Medicare Fee Schedule Method. See Allstate v. Stand-Up MRI, supra. STATE FARM simply provides greater coverage under Endorsement 6910.3. See id. STATE FARM, however, under Endorsement 6126LS, incongruously states that it will pay no more than 80% of the schedule of maximum charges, including the permissive fee schedule, thereby seeking to provide less coverage. See id. This conflict creates confusion as to which endorsement applies because, if STATE FARM were going to pay according to the Medicare Fee Schedule Method, STATE FARM would not resort to considering the factors entailed by the Reasonable Amount Method, such as “the usual and customary charges and payments accepted by the provider” and “reimbursement levels in the community.” This confusion is exacerbated by the fact that neither endorsement includes a specific timestamp; thus, an insured confronted with both endorsements is unable to discern, within the four corners of the policy and its endorsements, which endorsement is later in time and thereby possibly controlling. An insured could reasonably come to the interpretation that Endorsement 6910.3 came subsequent in time and was thus intended to control and provide greater coverage to the insured. Because insurance contracts must be construed liberally, with the court adopting the reasonable interpretation of the policy’s language that provides greater coverage as opposed to the reasonable interpretation that would limit coverage, this Court must liberally construe STATE FARM’s policy in favor of its insured with Endorsement 6910.3 applying and controlling, as that is the reasonable interpretation that does not detrimentally and inequitably limit coverage to the insured. See Washington Nat. Ins. Corp., 117 So. 3d at 951; Prudential Prop. & Cas. Co., 622 So. 2d at 470.
Nonetheless, STATE FARM argues to the contrary in its Amended Motion for Summary Judgment, citing for support to two recent Florida cases, Allstate v. Stand-Up MRI, supra, and S. Fla. Wellness, Inc. v. Allstate Ins. Co., __ F. Supp. 3d __, 2015 WL 897201 (S.D. Fla. Feb. 13, 2015), which are distinguishable from the instant case, as they do not involve an insurance policy with two conflicting and irreconcilable endorsements. In a more recent appellate decision in the case of Orthopedic Specialists v. Allstate Ins. Co., __ So. 3d __ (Fla. 4th DCA Aug. 19, 2015) [40 Fla. L. Weekly D1918a] the court held that the following Allstate policy language is inherently unclear and ambiguous, and that it must therefore be construed in favor of the plaintiff medical provider:
In accordance with the Florida Motor Vehicle No-Fault Law, [Allstate] will pay to or on behalf of the injured person the following benefits. . . .
1. Medical Expenses
Eighty percent of reasonable expenses for medically necessary . . . services. . . .
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. Id. at 2.
The court, in reaching its opinion, explained:
“[By] providing that any amounts payable would be “subject to” “any and all limitations” authorized by the statute or any amendments thereto, Allstate did nothing more than state the obvious by indicating that there was a possibility (and the statutory authorization) for Allstate to apply a specific reimbursement limitation. The only reasonable way to read the language is as a general recital of Allstate’s reservation of its right to apply limitations authorized by law, with the accompanying and corresponding obligation to notify its policy holders of the election.” Id. at 7.
Continuing on, the court explained that:
“A policy is not sufficient unless it plainly and obviously limits reimbursement to the Medicare fee schedules exclusively . . . The policy must make it inescapably discernible that it will not pay the ‘basic’ statutorily required coverage and will instead substitute the Medicare fees schedules as the exclusive form of reimbursement.” Id. at 9-10. (Emphasis added).
Here, STATE FARM, just like Allstate in Orthopedic Specialists, did not provide adequate notice to its insured that STATE FARM would be calculating PIP coverage reimbursements according exclusively to the permissive Medicare fee schedules. See id. STATE FARM’s policy is more unclear and ambiguous than the aforementioned Allstate policy, as STATE FARM’s policy has two conflicting and irreconcilable endorsements. See id. Indeed, the subject Allstate policy, although ambiguous, was still more coherent than STATE FARM’s subject policy, as Allstate’s policy did not incongruously provide that it would pay 80% of reasonable charges as determined by, among other things, “the usual and customary charges and payments accepted by the provider” and “reimbursement levels in the community.” See id. Allstate’s policy did not consider the Reasonable Amount Method factors because to do so would have conflated the two reimbursement methodologies, thereby creating an additional policy ambiguity that would have had to be liberally resolved in favor of its insured, as is the case here. See id.; see also Travelers Indem. Co., 889 So. 2d at 785. If Allstate’s policy without two conflicting and irreconcilable endorsements was ruled inherently unclear and ambiguous in Orthopedic Specialists, then, STATE FARM’s subject policy with two conflicting and irreconcilable endorsements here must invariably be held to be inherently unclear and ambiguous. See id. Thus, this Court finds that, STATE FARM, like Allstate in Orthopedic Specialists, has failed to clearly and unambiguously elect to use one of the two reimbursement methodologies, thereby creating a policy ambiguity that must be resolved in favor of the insured. See id.
STATE FARM also argues that the issuance of the OIR Approval of Policy Form satisfies the notice requirement set forth in F.S.A. §627.736(5)(a)(5) and, as a result, eliminates the need for any analysis as to the ambiguity and clarity of its policy and endorsements. STATE FARM also argues that the existence of such an approval prevents this Court from analyzing the sufficiency of their policy and endorsement language. This Court disagrees with both arguments. The Court in Febre’s Medical Center (a/a/o Ivan Rodriguez) v. MGA Insurance Company, Inc., 20 Fla. L. Weekly Supp. 1234a (11th Cir. Appellate, 2013) arrives at a similar conclusion in the context of the issuance of an AHCA clinic license exemption and its evidentiary impact on the issue of whether a service provider was wholly owned by a licensed physician and, therefore, qualified for such an exemption. The Febre’s Medical Center Court found that the existence of such a government issued exemption was irrelevant to the underlying analysis regarding the issue of ownership. In reaching its conclusion that the issuance of the exemption was irrelevant, the Court did not make a ruling as to the validity of AHCA’s exemption determination but focused on whether the provider was, in reality, wholly owned by a licensed physician. Similarly in this case, the issuance of the OIR approval does not, by itself, obviate the need for analysis of STATE FARM’S policy and endorsements by the Court due to the existence of conflicting endorsements and its impact on the insured and/or provider.
Accordingly, this Court finds that because STATE FARM’s insurance policy did not clearly and unambiguously elect to apply the permissive Medicare Fee Schedule Method exclusively, STATE FARM was precluded from relying exclusively on the Medicare Fee Schedule Method in reimbursing CEDA.
B. The medical services provided by CEDA were medically necessary and related to the subject auto accident.
The Court finds that the undisputed material facts establish that the medical services provided by CEDA were medically necessary and directly related to the automobile accident that CLAIMANT was in on April 11, 2013. CEDA submitted as evidence to the Court the affidavit of CLAIMANT’s supervising doctor, Dr. Canizares, which establishes to this Court’s satisfaction that, within a reasonable degree of medical certainty and probability, the medical services rendered to CLAIMANT were medically necessary and related to CLAIMANT’s subject automobile accident. This affidavit is uncontradicted as there is no record evidence that the supervising doctor was substantially impeached, nor provided with false information. See Jarrell v. Churm, 611 So. 2d 69 (Fla. 4th DCA 1992). The Court does not have any sufficient evidence before it indicating an intervening act rendering the treatment not related to the accident nor does it have any evidence calling into the question the necessity of the treatment provided.
Moreover, the Court disagrees with STATE FARM’s argument that CLAIMANT’s deposition testimony establishes an issue of material fact as to treatments rendered to the CLAIMANT. STATE FARM cites to Chiropractic One, Inc. v. State Farm Mut. Auto., 92 So. 3d 871 (Fla. 5th DCA 2012) [37 Fla. L. Weekly D1565a], which is distinguishable from the instant case. In Chiropractic One, a case of first impression involving nineteen (19) consolidated cases, the appellate court addressed the meaning and application of Florida Statute § 627.736(5)(b)1.c. vis-à-vis the knowing fraudulent conduct of a medical services provider. Section 627.736(5)(b)1.c. provides, in pertinent part, that, “[a]n insurer or insured is not required to pay a claim or charges . . . [t]o any person who knowingly submits a false or misleading statement relating to the claim or charges.” “Knowingly,” as subsequently defined in Florida Statute § 627.732(10), “means that a person, with respect to information, has actual knowledge of the information; acts in deliberate ignorance of the truth or falsity of the information; or acts in reckless disregard of the information, and proof of specific intent to defraud is not required.” (Emphasis added).
While Chiropractic One was before the trial court, the defendant insurer conducted an investigation, determining that the plaintiff provider engaged extensively in a pattern of misleading practices in its billing. Id. at 872. The trial court thus granted all of the nineteen (19) of the insurer’s motions for summary judgment on the basis of violations of § 627.736(5)(b)1.c. Id. at 873. In granting all of the aforementioned motions, the trial court noted that the extensive record evidence before the court, “established beyond any material issue of fact” that the provider knowingly and repeatedly made false and misleading claims for PIP benefits, and that the PIP claims made for every insured contained “multiple and repeated instances of such statements.” Id. Then, the trial court itemized the extensive evidence that led it to conclude that the provider knowingly made the false and misleading claims, and held that, as a result of the false and misleading claims, neither the insurer or the insured owed any PIP benefits or payments for treatment to the provider. Id.
Upon appeal, the appellate court affirmed the rulings of the trial court, reasoning that the provider “virtually admitted improper billing practices” and that the provider’s inappropriate practices were “primarily rooted in the [provider’s] intention or recklessly improper use of [CPT] codes, including billing for services not rendered, wrongly billed, or undocumented. The manipulations were designed to misrepresent to [the insurer] the services supplied to the insureds and to inflate the associated billing statements.” Id. at 873.
Here, unlike Chiropractic One, the Court does not find that the deposition testimony of the CLAIMANT creates substantial and competent evidence that CEDA or the CLAIMANT extensively engaged in fraudulent practices. See id. at 872. Unlike Chiropractic One, there is no summary judgment evidence presented that CEDA has repeatedly made false and misleading PIP claims for other patients. See id. Moreover, CEDA and the CLAIMANT, unlike the plaintiff provider in Chiropractic One, is not “virtually [admitting to an] improper billing practice” or any other fraudulent practices See id. at 873. Thus, STATE FARM, unlike the defendant insurer in Chiropractic One, is unable to aggregate fraudulent practices, in conjunction with a “virtual admission” of fraud as evidence, to unequivocally satisfy the “knowingly” scienter requirement of § 627.736(5)(b)1.c. See id. at 872. Furthermore, even considering the deposition testimony of CLAIMANT in the light most favorable to STATE FARM, that testimony does not establish that CEDA or CLAIMANT perpetrated fraud “knowingly”, nor does it otherwise create a direct conflict with Dr. Canizares’s opinions as articulated in his affidavit. As such, the Court denies Defendant’s request for Summary Judgment as the Defendant has failed to meet its prima facie burden of presenting competent evidence of fraud.
C. The charges for the medically necessary and related medical services provided by CEDA are reasonable.
The Court finds that the charges in the amount of $11,383.00 for the medically necessary, and related medical services that CEDA provided to CLAIMANT are reasonable, as is also established to this Court’s satisfaction by Dr. Canizares’ unrefuted affidavit. The Court notes that the Defendant has not challenged the ability of Dr. Canizares to render the testimony in his affidavit nor has the Defendant challenged the methodology used by Dr. Canizares. The affidavit provides that Dr. Canizares is familiar with what constitutes a reasonable price for the medical services provided by CEDA, as he has knowledge and experience in medical services pricing. Dr. Canizares’s knowledge arises from, among other things indicated in the affidavit, his familiarity with what other medical providers in the community charge for the same or similar medical services rendered in this case. Notably, Dr. Canizares provides that the amount billed in this case is reasonable and customary. The Court does not have before it any evidence to contradict Dr. Canizares’ affidavit testimony. Therefore, the Court finds there is no genuine issue of material fact as to the reasonableness of CEDA’s charges for services in this case.
CONCLUSION
Based upon the foregoing, is it ORDERED AND ADJUDGED that CEDA’s Amended Motion for Summary Judgment is GRANTED and STATE FARM’s Amended Motion for Summary Judgment is DENIED. It is further ORDER AND ADJUDGED that CEDA recover from STATE FARM the sum of $3,184.01 plus prejudgment interest that shall bear interest at the legal rate for which let execution issue. This Court reserves jurisdiction to award attorney’s fees and costs in favor of CEDA, and to enter Final Judgment for Attorney’s Fees and Costs accordingly.
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1The Kingsway Court explained that when the plain language of the PIP statute affords insurers two different mechanisms for calculating reimbursements, the insurer must clearly and unambiguously elect the permissive payment methodology in order to rely on it. See Kingsway, 63 So. 3d at 67-68.
