23 Fla. L. Weekly Supp. 950a
Online Reference: FLWSUPP 2309JPICInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Where insurer waived all defenses to medical provider’s action for PIP benefits, including right to challenge reasonableness of charge, and unilaterally determined reasonableness of charge by applying statutory fee schedule not elected in policy when processing provider’s bill, reasonableness of charge is not at issue — Final judgment is entered in favor of provider for balance of improperly reduced bill
FLORIDA HOSPITAL MEDICAL CENTER as assignee of Jennifer Piccard, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2015 20064 CONS. August 14, 2015. Shirley A. Green, Judge. Counsel: David B. Alexander, Bradford Cederberg, Orlando, for Plaintiff. Justin L. Seekamp, Cole, Scott & Kissane, P.A., Orlando, for Defendant.
FINAL JUDGMENT
THIS MATTER having come before this Honorable Court on Plaintiff’s Amended Motion for Final Judgment and Memorandum of Law In Support Thereof and this Honorable Court having reviewed the record in its entirety and being otherwise fully advised in the premises, it is hereby,
ORDERED AND ADJUDGED that:
1. This is a claim for PIP benefits arising out of a motor vehicle collision that occurred on or about 8/2/2010.
2. The Plaintiff in this matter is FLORIDA HOSPITAL MEDICAL CENTER as assignee of Jennifer Piccard.
3. At all times material to the subject cause of action, the assignor, Jennifer Piccard, was covered under a policy of automobile insurance by the Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, (hereinafter “STATE FARM”), which provided Personal Injury Protection (hereinafter “PIP”) benefits and Medical Payments (hereinafter “MedPay”) benefits for injuries Jennifer Piccard sustained in the above-referenced accident.
4. The Plaintiff rendered emergency service and care to the Defendant’s insured, Jennifer Piccard, on 8/2/2010, in the Emergency Department of Florida Hospital following that collision.
5. The Plaintiff submitted a bill to the Defendant for its Emergency Department services in the charged amount of $2,833.87.
6. Defendant paid less than 100% of Plaintiff’s submitted charges by utilization of the fee schedule reductions contained in Florida Statute 627.736(5)(a)2. (2010).
7. The Defendant allowed 75% of Plaintiff’s usual and customary charges for emergency services and reimbursed Plaintiff’s bill at the reduced amount of 75% of Plaintiff’s usual and customary charges for emergency services.
8. Defendant’s policy at issue does not allow for a reduction to 75% of Plaintiff’s usual and customary charges as it does not appropriately elect the permissive fee schedule set forth in Fla. Stat. 627.736(5)(a)2. (2010).
9. Defendant improperly and without notice to its insured utilized Fla. Stat. 627.736(5)(a)2.b. (2010) thereby breaching the contract at issue and violating Florida law.
10. On July 23, 2015, Defendant filed its Notice of Filing Defendant’s Stipulation of Facts which directly admits to the medical necessity of the medical services provided by Plaintiff to Jennifer Piccard and admits that the treatment provided by Plaintiff to Jennifer Piccard was causally related to the loss at issue. Within its Stipulation of Facts, Defendant states in paragraph four (4.) that “State Farm waives the remaining affirmative defenses in its last Answer and Affirmative Defenses.” Via this statement, Defendant admits that reasonableness of the Plaintiff’s charge is an affirmative defense that must be raised, unfortunately for Defendant at no point in this litigation has Defendant raised reasonableness of Plaintiff’s charge as an affirmative defense.
11. On July 27, 2015, Defendant filed its “Amended Defendant’s Notice of Voluntary Withdrawal With Prejudice of Affirmative Defenses” which “expressly states that any and all affirmative defenses are withdrawn with prejudice.”
12. Based on the record, Defendant has no defenses and is barred from raising any defenses to Plaintiff’s Complaint via Defendant’s voluntary withdrawal of any and all affirmative defenses with prejudice. Consequently, via the actions of Defendant, Defendant has waived any and all defenses in this action, including but not limited to, its right to challenge the reasonableness of Plaintiff’s charge.
13. In addition to Defendant’s withdrawal of the defense of reasonableness, Defendant unilaterally determined ‘reasonableness’ of Plaintiff’s charge when it calculated reimbursement according to the schedule of maximum charges (i.e., 75% of the hospital’s usual and customary charges ((5)(a)2.b.)).
14. The reasonableness of Plaintiff’s charge is not at issue in this matter. The law of the case at hand clearly reveals that prior to Defendant’s withdrawal with prejudice of any and all defenses, the reasonableness of Plaintiff’s charge was not at issue in this matter, pursuant to this Court’s June 8, 2015 Order.
15. This Court relies on Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a].
16. In determining whether a charge for a particular service or treatment is reasonable, there are two (2) methods by which an insurer may calculate reimbursement methods: i) the fact dependent method under §627.736(5)(a)1. or ii) by utilizing the permissive fee schedule under §627.736(5)(a)2. These methods have been described as separate and distinct methods for evaluating the statute’s reasonable expense coverage mandate under Fla. Stat. 627.736(1)(a). The insurer must choose the one payment methodology it will utilize for reimbursement and cannot alternate between the two methods.
17. Defendant’s argument that it can challenge the reasonableness of Plaintiff’s charge, even after Defendant has utilized the schedule of maximum charges when processing the provider’s bill is contrary to the statute and the case law. The methodologies are separate and distinct. In Virtual Imaging, supra, the Supreme Court held that the insurer had to elect clearly and unambiguously which section it utilized to reimburse for medical expenses; (5)(a)1 or (5)(a)2. Therefore, once an insurer has attempted to limit reimbursement pursuant to the statute’s schedule of maximum charges, which Defendant has done in this matter, the only question to be determined is whether its policy of insurance provides sufficient notice to its insured. As a result of the above, this matter is distinguishable from the case of State Farm Mutual Automobile Ins. Co. v. New Smyrna Imaging (a/a/o Ryan Campbell), Case No. 2013-10005-APCC (involving 26 consolidate cases), 7th Jud. Cir., Appellate Ct. (September 11, 2014) [22 Fla. L. Weekly Supp. 508a]. In New Smyrna Imaging (a/a/o Ryan Campbell), it was agreed by the parties “that State Farm chose a “reasonable” payment methodology, as set forth in §627.736(5)(a)1.” Id. There is no such agreement in the current case. In fact, Defendant’s Explanation of Review and actions of the Defendant in this matter reveals that the Defendant utilized the schedule of maximum charges (i.e., (5)(a)2.), not (5)(a)1. In the present matter, the Defendant’s policy fails to elect the schedule of maximum charges (i.e., (5)(a)2.) and Defendant has waived any such defense in this matter.
18. The purpose of (5)(a)2. was to reduce costs and eliminate litigation regarding reasonableness of charge. In other words, since Defendant utilized the schedule of maximum charges when processing the Plaintiff’s bill it cannot now fall back upon the fact dependent inquiry to determine reasonableness of the charge. Defendant unilaterally determined “reasonableness” of Plaintiff’s charge when it calculated reimbursement according to the schedule of maximum charges (i.e., 75% of the hospital’s usual and customary charges ((5)(a)2.b.)). The legislative intent behind enacting the schedule of maximum charges was “designed to reduce costs and eliminate litigation regarding what is a ‘reasonable’ charge.” Florida Senate, Bill Analysis and Fiscal Impact Statement, CS/SB 40-C, Oct. 4, 2007, page 18.
19. The Court finds that the reasonableness of Plaintiff’s charge is not at issue in this matter. Further, the Plaintiff’s bill is in the record and the Court finds that the statute’s reasonable expense mandate under Fla. Stat. 627.736(1)(a) has been satisfied in this matter via Plaintiff’s billed amount. Further, the Court finds that Defendant in the present matter has waived and withdrawn its ability to contest the reasonableness of Plaintiff’s charge.
20. Fla. R. Civ. P. 1.140(c) states as follows: “Motion for Judgment on the Pleadings. After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings.” In practice, there is no difference between Fla. R. Civ. P. 1.140(c) and Fla. R. Civ. P. 1.510. The Authors’ Comments to Fla. R. Civ. P. 1.510 read in part as follows:
“In view of the purpose of the rule to secure the just, speedy, and inexpensive determination of every action, the courts have been reluctant to refuse to make the proper disposition of the case merely because of the form of the motion.”
21. Considering same, this Court can look to the declarations page, policy, bill, as well as the Explanation of Review, which have all been authenticated by the Defendant’s Corporate Representative, attached as exhibits to the deposition transcript of Defendant’s Corporate Representative taken on June 23, 2015 and filed with the Court.
22. As a result of the foregoing, the record on its face reveals that no facts are at issue and Plaintiff is entitled to Final Judgment as a matter of law. “Judgment of the pleadings may be granted only if, on the facts as so admitted, the moving party is clearly entitled to judgment.” See Miller v. Eatmon, 177 So. 2d 523, 524 (Fla. 1st DCA 1965). In the case at hand, the facts as so admitted by Defendant, along with the record and the pleadings, without question demonstrate that Plaintiff is entitled to Final Judgment.
IT IS HEREBY ORDERED AND ADJUDGED that:
23. Plaintiff’s Amended Motion for Final Judgment is hereby GRANTED.
24. Final Judgment is hereby GRANTED in favor of the Plaintiff, FLORIDA HOSPITAL MEDICAL CENTER as assignee of Jennifer Piccard, wherein Plaintiff shall recover from Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, the sum of $708.46 plus 6% pre-judgment interest in the amount of $212.65 for a total sum of $921.11 for which sum let execution issue.*
25. The Court finds Plaintiff is entitled to its reasonable attorneys’ fees and costs. The Court reserves jurisdiction to determine the amount of attorneys’ fees and costs to Plaintiff pursuant to Fla. Stat. §§627.736, 627.428 and 57.041.
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*Post-judgment interest of 4.75% per annum shall accrue on this judgment pursuant to Fla. Stat. § 55.03.
