23 Fla. L. Weekly Supp. 261b
Online Reference: FLWSUPP 2303RIVEInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Insurer unilaterally determined “reasonableness” when it calculated reimbursement according to statutory schedule — Discovery related to this issue is denied
FLORIDA HOSPITAL MEDICAL CENTER as assignee of Jessica Rivera, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2014-SC-8455-O. April 22, 2015. Steve Jewett, Judge. Counsel: William England, Bradford Cederberg, P.A., Orlando, for Plaintiff. Rafael O. Rodriguez, Orlando, for Defendant.
ORDER
THIS MATTER having come before this Honorable Court on Plaintiff’s Motion to Compel Deposition of Defendant’s Corporate Representative Pursuant to Fla. R. Civ. P. 1.310(b)(6), Plaintiff’s Motion for Protective Order, Plaintiff’s Motion to Strike Defendant’s Affirmative Defense, Defendant’s Motion to Compel Plaintiff’s Corporate Representative Deposition, and Defendant’s Motion to Compel Better Answers to Discovery and this Honorable Court having heard arguments of counsel and being otherwise fully advised in the premises, it is hereby,
ORDERED AND ADJUDGED that:
1. The Plaintiff, a hospital facility, submitted its medical bill for date of service 12/19/2008 seeking reimbursement from Defendant. Defendant’s explanation of benefits limits the reimbursement to 80% of 75% of the Plaintiff’s charges. Defendant’s explanation of benefits gives an explanation code [381] for the limited reimbursement as follows: “[t]he allowable amount has been calculated pursuant to Florida Statute 627.736(5)(2008) which limits reimbursement to 75% of the hospital’s usual and customary charges for emergency services.” This explanation matches the schedule of maximum charges under Fla. Stat. 627.736(5)(a)2.b. Additionally, at the very end of the document it states “[f]or date of accident 1/1/08 and after, if an insurer limits payment as authorized by subparagraph 2., the person providing such services, supplies, or care may not bill or attempt to collect from the insured any amount in excess of such limits, except for amounts that are not covered by the insured’s personal injury protection coverage due to the coinsure amount or maximum policy limits. F.S. 627.736(5)(a)5.” This subsection clearly refers back to the schedule of maximum charges under Fla. Stat. 627.736(5)(a)2.
2. This Court relies on the opinion rendered by the Florida Supreme Court in Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a].
3. 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. (2009) and ii) by utilizing the permissive Schedule of Maximum Charges under 627.736(5)(a)2. (2009). 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.
4. If the methodologies are separate and distinct, then it is impossible that any of the Schedule of Maximum Charges under (5)(a)2. could be used in a (5)(a)1. inquiry. In Virtual Imaging, supra, the Supreme Court held that the insurer had to elect clearly and unambiguously, within its policy, which section it would utilize to reimburse for medical expenses; (5)(a)(1) or (5)(a)(2). Therefore, the primary question to be determined is whether an insurer has attempted to limit reimbursement under the statute’s schedule of maximum charges and, if so, whether its policy of insurance provides sufficient notice to allow it to do so.
5. The purpose of (5)(a)2 was to reduce costs and eliminate litigation regarding reasonableness of charge. In other words, since Defendant did not rely upon the remaining factors within its policy of insurance 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” when it calculated reimbursement according to the schedule of maximum charges (i.e. 75% of the hospital’s usual and customary charge). To allow opposing parties to fight and compel discovery on unrelated, immaterial or irrelevant legal matters frustrates the clear intent of the statute and judicial economy. As previously noted, 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.
6. Regarding appropriate discovery for a (5)(a)(2) election and notice to the insured, the Court finds “reasonableness” discovery (depositions, better interrogatory answers and/or better request to produce responses) shall not be had in this matter by either party. See Allstate Insurance Company v. Langston, 655 So.2d 91 (Fla. 1995) [20 Fla. L. Weekly S217a] (discovery in a civil case must be relevant to the subject matter of the case and it must be admissible or reasonably calculated to lead to admissible evidence).
7. Plaintiff’s Motion to Compel Deposition of Defendant’s Corporate Representative Pursuant to Fla. R. Civ. P. 1.310(b)(6) is MOOT. Defendant shall produce an Affidavit authenticating non-privileged claims file materials such as bill, Explanations of Benefits, the entire insurance policy for the insured, and the most recent PIP payment ledger.
8. Plaintiff’s Motion for Protective Order is GRANTED.
9. Plaintiff’s Motion to Strike Defendant’s Affirmative Defense is MOOT. Defendant has withdrawn it’s Affirmative Defense.
10. Defendant’s Motion to Compel Plaintiff’s Corporate Representative Deposition is DENIED.
11. Defendant’s Motion to Compel Better Answers to Discovery is DENIED.
