24 Fla. L. Weekly Supp. 714b

Online Reference: FLWSUPP 2409VILLInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy that states that insurer will only pay reasonable medical expenses but in no event will pay more than 80% of No-Fault Act schedule of maximum charges provides legally sufficient notice of intent to limit reimbursement to permissive statutory fee schedule

CRESPO & ASSOCIATES, P.A., as assignee of HERBERT VILLANUEVA, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Small Claims Division. Case No. 16-CC-003515, Division K. September 28, 2016. Walter R. Heinrich, Judge. Counsel: Anthony Prieto, Prieto, Prieto, & Goan, Tampa, for Plaintiff. Scott W. Dutton, Dutton Law Group, Tampa, for Defendant.

ORDER OF PARTIAL SUMMARYJUDGMENT FOR DEFENDANT

THIS CAUSE, having come before the Court on Motions of both the Defendant, State Farm Mutual Automobile Insurance Company (“State Farm”) and the Plaintiff, Crespo and Associates, P.A. (“Crespo”), and the Court, having heard argument on September 15, 2016, having reviewed the relevant filings and otherwise having been fully advised in the premises, it is hereby ORDERED and ADJUDGED that:

Defendant Motion for Summary Judgment is Granted as to Count I.

Plaintiff Motion for Summary Judgment as to Count I of Complaint is Denied.

The Court is very much persuaded by the analysis of Judge Bloom in Virga v. Progressive Am. Ins. Co., Case No. 16-cv-60329-BLOOM/Valle, 2016 WL 3866364 (S.D. Fla. June 29, 2016), in that the statutory language of PIP merely states an obligation to pay “eighty percent of all reasonable expenses for medically necessary” services and that the policy defines what qualifies as reasonable pursuant to 627.736(1)(a), that the Defendant will be using the schedule of maximum charges and CMS payment methodologies — which plainly satisfies the notice requirement.

The Court is further impressed with the decision in Allstate Indem. Co. v. Markley Chiro. & Acupuncture, LLC, 41 Fla. L. Weekly D793b, __ So. 3d __, 2016 WL 1238533 (Fla. 2d DCA Mar. 30, 2016), where the District Court of Appeal found that the policy language provided legally sufficient notice of its elections to use statutory Medicare fee schedules in determining reimbursement of medical expenses. Given that the No Fault Act (PIP) does not provide any other fee schedules apart from those in subsection (5)(a)(2), language in the policy to use the fee schedules is devoid of any ambiguity.

The Court finds that the Defendant, State Farm, provided legally sufficient notice of their intent to use the schedule of maximum charges set forth in the PIP statute.

The State Farm Policy

The Declarations Page of the Policy State Farm provided its insured notice that it was limiting reimbursement of medical expenses to the schedule of maximum charges (allowable amount under certain fee schedules) found in the Florida Motor Vehicle No-Fault Law:

IMPORTANT NOTICE — Under No-Fault Coverage, the only medical expenses we will pay are reasonable medical expenses that are payable under the Florida Motor Vehicle No-Fault Law. The most we will pay for such reasonable medical expenses is 80% of the “schedule of maximum charges” found in the Florida Motor Vehicle No-Fault Law and in the Limits section of the Florida Car Policy’s No-Fault Coverage.

Moreover, the Insuring Agreement of the Florida No-Fault (“PIP”) provisions state, in pertinent part (Policy Form 9810A at 14-16):

Insuring Agreement

We will pay in accordance with the No-Fault Act¹ properly billed and documented reasonable charges for bodily injury to an insured, caused by an accident resulting from the ownership, maintenance, or use of a motor vehicle as follows:

1. Medical Expenses

We will pay 80% of properly billed and documented medical expenses, but only if that insured receives initial services and care from a provider described in A. below within 14 days after the motor vehicle accident that caused bodily injury to that insured.

* * *

In turn, that language is subject to the “Limits” language of the PIP provisions, which provides:

Limits

1.We will not pay any charge that the No-Fault Act does not require us to pay, or the amount of any charge that exceeds the amount the No-Fault Act allows to be charged.

2. The most we will pay for each injured insured as a result of any one accident is $10,000 for all combined Medical Expenses, Income Loss, and Replacement Services Loss, described in the Insuring Agreement of this policy’s No-Fault Coverage.

* * *

We will limit payment of Medical Expenses described in the Insuring Agreement of this policy’s No-Fault Coverage to 80% of a properly billed and documented reasonable charge, but in no event will we pay more than 80% of the following No-Fault Act “schedule of maximum charges” including the use of Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services, including applicable modifiers:

a. For emergency transport and treatment by providers licensed under chapter 401, Florida Statutes, 200 percent of Medicare.

b. For emergency services and care provided by a hospital licensed under chapter 395, Florida Statutes, 75 percent of the hospital’s usual and customary charges.

c. For emergency services and care as defined by s. 395.002, Florida Statutes, provided in a facility licensed under chapter 395, Florida Statutes, rendered by a physician or dentist, and related hospital inpatient services rendered by a physician or dentist, the usual and customary charges in the community.

d. For hospital inpatient services, other than emergency services and care, 200 percent of the Medicare Part A prospective payment applicable to the specific hospital providing the inpatient services.

e. For hospital outpatient services, other than emergency services and care, 200 percent of the Medicare Part A Ambulatory Payment Classification for the specific hospital providing the outpatient services.

f. For all other medical services, supplies, and care, 200 percent of the allowable amount under:

(I) The participating physicians fee schedule of Medicare Part B, except as provided in sub-sub-subparagraphs (II) and (III).

(II) Medicare Part B, in the case of services, supplies, and care provided by ambulatory surgical centers and clinical laboratories.

(III) The Durable Medical Equipment Prosthetics/Orthotics and Supplies fee schedule of Medicare Part B, in the case of durable medical equipment.

However, if such services, supplies, or care is not reimbursable under Medicare Part B, as provided in this sub-subparagraph, then we will limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 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 (Florida Rules of Procedure for Worker’s Compensation Adjudication) 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 on March 1 of the year in which the services, supplies, or care is rendered and for the area in which such services, supplies, or care is rendered, and the applicable fee schedule or payment limitation applies throughout the remainder of that year, notwithstanding any subsequent change made to the fee schedule or payment limitation, except that it will not be less than the allowable amount under the applicable schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B.

(Policy Form 9810A with emphasis added).

The 9810A Policy explicitly states that State Farm may limit reimbursement based upon the application of the Schedule of Maximum Charges:

We will limit payment of Medical Expenses described in the Insuring Agreement of this policy’s No-Fault Coverage to 80% of a properly billed and documented reasonable charge, but in no event will we pay more than 80% of the following No-Fault Act “schedule of maximum charges” including the use of Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services, including applicable modifiers: [provisions of schedule of maximum charges follow] . . . .

(Policy Form 9810A at 14-16 with underlining added).

It is therefore ORDERED AND ADJUDGED that Summary Judgment as to Count I is rendered in favor of the Defendant, State Farm.

__________________

¹The “No-Fault Act means the Florida Motor Vehicle No-Fault Law and any amendments.” (Policy Form 9810A).