24 Fla. L. Weekly Supp. 540c
Online Reference: FLWSUPP 2407FLANInsurance — Personal injury protection — Coverage — Medical expenses — Where PIP policy notifies insured that benefits will be paid at 80% of rate of schedule of maximum charges pursuant to PIP statute and will only be paid at 80% of reasonable amount billed if schedule does not apply to covered medical expenses or does not exist, policy clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule
DAVID CHEESMAN, D.O., d/b/a TRINITY SPINE AND WELLNESS CENTER, (Paige Flanagan, Patient), Plaintiff, v. ALLIED PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County. Case No. 13-5560-SC. October 16, 2015. Kathleen T. Hessinger, Judge. Counsel: Kevin Jackson, Ft. Lauderdale, for Plaintiff. Michael G. Rabinowitz, Banker Lopez Gassler, P.A., Plantation, for Defendant.FINAL SUMMARY JUDGMENT
This Cause came to be heard before this Court on Plaintiff’s and Defendant’s Cross Motions for Summary Judgment with the Parties present, through counsel, and this Court having heard argument and being otherwise advised of the premises, it is hereby Ordered and Adjudged as follows,
1. Plaintiff sued Defendant for failure to pay 80% of all reasonable expenses for medically necessary expenses. Defendant claims it paid pursuant to the permissive fee schedules set forth in §627.736(5)(a)1, Fla. Stat.
2. Plaintiff filed a Motion for Summary Judgment arguing that Defendant could not pay pursuant to the permissive fee schedules as the policy of insurance did not specifically elect said method of payment. Defendant filed a Motion for Summary Judgment arguing that Plaintiff does not have a claim for PIP benefits as the policy clearly elects payment pursuant to the permissive fee schedule.
3. Plaintiff argues that the Fourth District Court of Appeal recently ruled, in Orthopedic Specialists v. Allstate Ins. Co., 40 Fla. L. Weekly D1918a (Fla. 4th DCA 2015), that the language in an Allstate policy electing the permissive fee schedule of the PIP statute was ambiguous; thus, likewise, the policy language, electing payment pursuant to the permissive fee schedule, in Defendant’s policy is also ambiguous. Defendant, on the other hand, argues that the First District Court of Appeal, in Allstate Fire and Cas. Ins. v. Stand-Up MRI of Tallahassee, P.A., 40 Fla. L. Weekly D693b (Fla. 1st DCA 2015), the Sixth Judicial Circuit Court, sitting in its appellate capacity, in Allstate Fire and Cas. Ins. Co. v. Orthopedic Specialists a/a/o Spyropolous, 21 Fla. L. Weekly Supp. 470a (Fla. 6th Cir. Ct. 2013) and this Court, in David Wall, M.D. a/a/o Khvorostov v. Allstate Fire and Cas. Ins. Co., 21 Fla. L. Weekly Supp. 285b (Fla. Pin. Cty. Ct. 2013), ruled that the Allstate policy language was not ambiguous; thus, the policy at issue, in this matter, is not ambiguous.
4. The PIP policy language at issue in this matter states as follows,
BENEFITS
Benefits are as follows:
MEDICAL BENEFITS
Benefits will be paid to or for the benefit of the injured person at 80% of the rate of the schedule of maximum charges pursuant to the Florida Motor Vehicle No-Fault Law. Medical expenses that are not reimbursable under Medicare or Florida’s workers’ compensation are not covered and will not be paid. If the Florida Motor Vehicle No-Fault Law schedule does not apply to covered medical expenses or does not exist then benefits will be paid at 80% of the reasonable amount billed.
5. Section 627.736(5)(a)1, Fla. Stat. clearly states “the insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:. . .”
6. Despite the opposing rulings in Orthopedic Specialists and Stand-Up MRI as to the PIP policy language in the Allstate policy of insurance, both Courts state the policy language must adequately notify insureds of the insurers election to limit reimbursements via the Medicare fee schedules in 627.736(5)(a)2, Fla. Stat. (now 627.736(5)(a)1, Fla. Stat.)
7. The policy language, at issue, clearly and absolutely unequivocally notifies the insured that the benefits will be paid at 80% of the rate of the schedule of maximum charges as set forth in the PIP statute. The language is so clear that it tells the insured that the benefits will only be paid at 80% of the reasonable amount billed if the Florida Motor Vehicle No-Fault Law schedule does not apply to a covered loss or does not exist. As such, Plaintiff’s Motion for Summary Judgment is without merit and Defendant prevails on its Motion for Summary Judgment.
It is therefore Ordered and Adjudged that Plaintiff, David Cheesman, D.O. d/b/a Trinity Spine and Wellness Center (Paige Flanagan, patient), shall take nothing from this action and Defendant, Allied Property and Casualty Insurance Company, shall go hence with day.
