23 Fla. L. Weekly Supp. 157a

Online Reference: FLWSUPP 2302VANDInsurance — Personal injury protection — Coverage — Emergency services — Deductible — Because insurer is mandated by statute to reserve $5,000 for emergency service providers, insurer should not have applied claim by plaintiff provider within that classification to deductible — Emergency service provider’s bill will be held until such time as deductible is satisfied by non-protected providers’ bills

EMERGENCY MEDICINE PROFESSIONALS, P.A., as assignee of Melanie Vandemark, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2013 34110 COCI, Division 82. February 19, 2015. Angela Dempsey, Judge. Counsel: Robert Bartels and Wendelyn L. Gowen, Bradford Cederberg, P.A., Orlando, for Plaintiff. Matthew Corker, Conroy Simberg, Orlando, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT

THIS CAUSE having come before the Court for hearing on January 22, 2015 on Plaintiff’s Motion for Final Summary Judgment, and this Court having heard arguments of counsel, and being otherwise fully advised in the premises, finds as follows:FACTS

1. Plaintiff filed a PIP suit, as assignee of Melanie Vandemark, against Defendant seeking PIP benefits for services provided to Melanie Vandemark on July 14, 2013 as a result of injuries she sustained in an automobile accident that occurred on July 14, 2013.

2. Plaintiff submitted its bill within 30 days of the date of the July 14, 2013 accident. It was received by the Defendant on July 31, 2013.

3. Melanie Vandemark was insured under a PIP policy of insurance issued by Defendant. This policy was in full force and effect on the date of the accident and it had $10,000.00 in personal injury protection benefits with $1,000.00 deductible and no medical payments coverage.

4. Melanie Vandemark sought care and/or treatment from several medical providers, including the Plaintiff, as a result of injuries sustained in the subject motor vehicle accident.

5. Plaintiff is an emergency room physician group licensed under Chapters 458 or 459 and provided emergency services and care, as defined by Florida Statute §395.002(9), to Melanie Vandemark on July 14, 2013.

6. The first bill Defendant received was from Plaintiff for date of service July 14, 2013. This bill was received on July 31, 2013. Plaintiff’s charge was $306.00. Defendant allowed 100% of Plaintiff’s charge and applied Plaintiff’s $306.00 charge to Melanie Vandemark’s $1,000.00 deductible.

7. Also on July 31, 2013, Defendant received a bill from Central Florida Medical Imaging, P.A. for date of service July 14, 2013. Central Florida Medical Imaging, P.A.’s charge was $89.00. Defendant allowed 100% of Central Florida Medical Imaging, P.A.’s charge and applied it to Melanie Vandemark’s $1,000.00 deductible.

8. The third bill Defendant received was from Florida Hospital Deland for date of service July 14, 2013. The Florida Hospital Deland bill was received by Defendant on August 29, 2013, wherein the charge was $5,002.07. Defendant reduced the hospital’s charge by applying the fee schedule (i.e Defendant allowed 75% of the hospital’s usual and customary charge for emergency services, or $3,751.55). Defendant then applied $605.00 of the insured’s deductible to the $3,751.55 and paid Florida Hospital Deland $2,517.24, which is 80% of $3,146.55.¹

9. The first two bills, which included Plaintiff’s bill, were received within thirty (30) days of the date the Defendant received notice of the loss.

10. Importantly, Defendant received bills from medical providers who were not protected under Fla. Stat. §627.736(4)(c). Those bills exceeded the insured’s $1,000.00 deductible.

11. Defendant applied Melanie Vandemark’s $1,000.00 deductible to the bills of the Plaintiff (Emergency Medicine Professionals, P.A.) and Central Florida Medical Imaging, P.A. as they were the first bills received. The Defendant then applied the remaining deductible to the Florida Hospital Deland bill.

12. For purposes of this case, Defendant allowed Plaintiff’s bill in full. Therefore, Defendant may not challenge the reasonableness of Plaintiff’s charge or the reasonableness, medical necessity or relatedness to the accident of the medical services provided by Plaintiff to Melanie Vandemark on July 14, 2013.

13. For purposes of this matter, the only affirmative defense raised was:

No payment is due to the Plaintiff for the subject services. Specifically, the Plaintiff’s billing for the treatment rendered on July 14, 2013 was received by PROGRESSIVE on July 31, 2013. The subject policy had a deductible provision in the amount of $1,000.00. The Plaintiff’s bill was applied to the deductible.

14. The sole legal issue for the Court to determine is whether a bill submitted that qualifies for protection under Fla. Stat. §627.736(4)(c) can be applied to an elected deductible, pursuant to Fla. Stat. §627.739.

ANALYSIS

This Court is called upon by the parties to give meaning to two separate sections of Florida’s PIP statute. Each of the parties suggests that the language of the relevant section of Florida Statutes, supporting the parties’ position, is “plain, unequivocal and not subject to reasonable differences as to its meaning.”

The first relevant provision of Florida Statute is §627.736(4)(c), which requires insurers to maintain a $5,000 reserve to pay claims submitted by physicians who provide emergency services and care when the bills are submitted within thirty (30) days of the insurer having received notice of the accident. Fla. Stat. §637.736(4)(c) provides:

Upon receiving notice of an accident that is potentially covered by personal injury protection benefits, the insurer must reserve $5,000 of personal injury protection benefits for payment to physicians licensed under chapter 458 or chapter 459 or dentists licensed under chapter 466 who provide emergency services and care, as defined in s. 395.002, or who provide hospital inpatient care. The amount required to be held in reserve may be used only to pay claims from such physicians or dentists until 30 days after the date the insurer receives notice of the accident. After the 30-day period, any amount of the reserve for which the insurer has not received notice of such claims may be used by the insurer to pay other claims. The time periods specified in paragraph (b) for payment of personal injury protection benefits are tolled for the period of time that an insurer is required to hold payment of a claim that is not from such physician or dentist to the extent that the personal injury protection benefits not held in reserve are insufficient to pay the claim. This paragraph does not require an insurer to establish a claim reserve for insurance accounting purposes.

Fla. Stat. §627.736(4)(c).

The second relevant provision of Florida Statutes is §627.739(2) which governs deductibles in PIP insurance policies. Fla. Stat. §627.739(2) provides:

Insurers shall offer to each applicant and to each policyholder, upon the renewal of an existing policy, deductibles, in amounts of $250, $500, and $1,000. 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 in total benefits described in s. 627.736(1). However, this subsection shall not be applied to reduce the amount of any benefits received in accordance with s. 627.736(1)(c).

Fla. Stat. §627.739(2).SUMMARY OF ARGUMENTSPlaintiff’s Argument

The Plaintiff maintains that under the plain meaning of Fla. Stat. §627.736(4)(c) the Legislature carved out a protected class of providers and set forth a specific time period for them to submit their bills in order to take advantage of the statutory protection. The intent of Fla. Stat. §627.736(4)(c) was to give priority (payment) to mandatory providers of emergency care and services.

However, under the Defendant’s theory, if the providers submit their bills within the 30 day period, they have a greater chance of having their bills applied to the deductible. On the other hand, if the providers do not submit their bill within the 30 day period, then they lose their protection under the statute.

Plaintiff asserts that the intent of the statute was to prioritize these providers, and it makes no sense that by following the statute, and availing themselves of protected class status, they run a greater risk of their bill not being paid. Meanwhile, those providers not in the protected class get their bills paid based upon the deductible being met by those who are in the protected class. This practice dilutes the intent of Fla. Stat. §627.736(4)(c) and the intended protection becomes a matter of luck and timing.Defendant’s Argument

The Defendant, on the other hand, suggests that any evaluation of the issue at bar must begin with the position that the language of Fla. Stat. §627.736(4)(c) is clear and unambiguous and that this Court should find that absent from Fla. Stat. §627.736(4)(c) is any language which can be construed as protecting bills that otherwise qualify for the reserve from being applied to the elected deductible. Defendant suggests that to find otherwise is contrary to the dictate of Fla. Stat. §627.739(2) that it is only “after the deductible is met” that the insured is eligible to receive up to $10,000 in benefits.

In support of this, the Defendant points out that in Fla. Stat. §627.739(2) the Legislature expressly exempted death benefits from the application of a deductible and chose to provide no other exceptions. The Defendant argues that had the legislature wanted to include a second exception within the deductible statute, it certainly knew how to, and would have done so.

CONCLUSIONS OF LAW AND RULING

As the Fifth District Court of Appeal has observed in recent opinions, Florida’s PIP Statute from its inception has been “a complicated piece of legislation, but the successive years of constant amendment and revision have both added to its complexity and detracted from its clarity.” Chiropractic One, Inc. v. State Farm Mut. Auto., 92 So. 3d 871, 872 (Fla. 5th DCA 2012) [37 Fla. L. Weekly D1565a]; quoting Fla. Med. & Injury Ctr., Inc. v. Progressive Express. Ins. Co., 29 So. 3d 329, 337 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D215b]. The observations by the Fifth are certainly applicable to the case at bar.

Fla. Stat. §627.736(4)(c) was enacted five (5) years after Fla. Stat. §627.739, the deductible statute, (2008 and 2003, respectively). The later more specific statute controls over an earlier, more general statute.

The construction of a statute must not lead to an unreasonable result or a result clearly contrary to legislative intent. Hopkins v. State, 105 So. 3d 470, 473 (Fla. 2012) [37 Fla. L. Weekly S551a]. To accept Defendant’s interpretation might require this Court to read Fla. Stat. §627.739(2) as a freestanding provision. However, it is a well-settled principle of statutory construction that “all parts of a statute must be read together in order to achieve a consistent whole.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992).

After careful consideration and review of the Legislative amendments and existing sections at issue, this court finds that while the legislature clearly provided for a deductible to be met under Fla. Stat. §627.739(2), this Court finds that the express language of Fla. Stat. §627.739(2) provides that “[t]he deductible amount must be applied to 100 percent of the expenses and losses described in s. §627.736.” (emphasis added). The two sections are not mutually exclusive. While Fla. Stat. §627.739(2) provides for the establishment of a deductible, Fla. Stat. §627.736 establishes a priority as to the order of payment. In carving out a protected class of providers in Fla. Stat. §627.736(4)(c) it was the intent of the Legislature that Plaintiff’s bill be paid out of the reserve and the non-protected provider’s bills be applied to the deductible. However, it is only when the deductible is satisfied by non-protected providers that the Plaintiff’s bill will be paid. If no other bill is received in a claim, then the protected provider’s bill will be held until such time as the deductible is satisfied by non-protected provider’s bills.

WHEREFORE, the Court grants Plaintiff’s Motion for Final Summary Judgment and orders that Plaintiff is entitled to payment of $244.80 (which is 80% of Plaintiff’s $306.00 charge) plus statutory interest of $18.06 (which was calculated at 4.75% per annum from the date Defendant received Plaintiff’s bill, July 31, 2013) for a total amount due of $262.86 for which let execution issue forthwith. The Court finds the Plaintiff is hereby entitled to reasonable attorneys’ fees and costs and reserves jurisdiction to determine the amount.

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¹For purposes of this lawsuit, the Court was not required to evaluate the manner in which Defendant applied the deductible to the hospital bill (i.e. was the deductible to be applied to 100% of the hospital’s charged amount or the fee schedule “allowed” amount) as either calculation satisfied the insured’s deductible in its entirety.