23 Fla. L. Weekly Supp. 355a
Online Reference: FLWSUPP 2304PENAInsurance — Personal injury protection — Coverage — Medical expenses — Deductible — Insurer is not permitted to apply statutory fee schedule to medical provider’s bills that fall under deductible — Reduction is only permitted as to bills for which insurer is paying benefits under policy
FLORIDA HOSPITAL MEDICAL CENTER, as assignee of Louis Pena, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2014-SC-5220-O. May 28, 2015. Tina Caraballo, Judge. Counsel: Rutledge M. Bradford and Wendelyn L. Gowen, Bradford Cederberg, P.A., Orlando, for Plaintiff. Eric Biernacki, The Insurance Defense Firm, Orlando, for Defendant.
District court: Cert. Denied. 43 Fla. L. Weekly D322a. (Progressive Select Insurance Co. v. Florida Hospital Medical Center a/a/o Louis Pena, 5D16-2334, 2-9-2018) (On Rehearing and Motion to Certify)
AFFIRMED. 24 Fla. L. Weekly Supp. 200a
ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENTAND DENYING DEFENDANTS MOTIONFOR FINAL SUMMARY JUDGMENT
THIS MATTER having come before the Court on May 4, 2015, upon the parties competing motions for final summary judgment regarding the application of the insurance policy deductible to the payment of medical benefits.
The facts of the case are not in dispute. Plaintiff’s insured, Louis Pena, elected a policy of insurance with a deductible of $1,000.00. The policy provided $10,000.00 in PIP benefits once the deductible was satisfied. The insured did not purchase medical payments coverage.
The insured was involved in a motor vehicle collision and sustained injuries. As a result of the injuries sustained in the motor vehicle collision, the insured presented to the emergency department of Florida Hospital Medical Center (“Florida Hospital”) for emergency medical treatment. Florida Hospital submitted a bill for $7,662.00 to Progressive Select Insurance Company (“Progressive”) on January 20, 2014. This was the first bill received and therefore was subject to the deductible elected, before the $10,000.00 in benefits became due and owing.
The dispute arises over Progressive’s application of the deductible. Before applying the deductible, Progressive reduced Florida Hospital’s bill by 25% pursuant to the fee schedule contained in §627.736(5)(a)(1), Fla. Stat. and its policy of insurance. The result being, Progressive reduced the bill to $5,746.50, subtracted the deductible and then paid 80% of the bill or $3,797.20.
Florida Hospital contends this was error because §627.739, Fla. Stat. requires “[t]he deductible amount must be applied to 100 percent of the expenses and loses 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).” Florida Hospital argues the insurance policy’s reduction of its bill does not occur until after the insured meets the deductible. As such, Florida Hospital contends the $1,000.00 should be deducted from its bill of $7,662.00 after which, Progressive will reduce that amount by 25% and then pay 80% or $3,997.20, which is $200.00 more than what Progressive paid in this case.
The langue of §627.739, Fla. Stat. is clear and unambiguous that the deductible must be applied to 100 percent of the expenses. The problem, as set forth above, lies in determining what are the “expenses.” Both parties make compelling arguments for their interpretation, but the Court accepts Florida Hospital’s interpretation.
Florida Hospital cites the evolution of the deductible statute, from its wording in 2002, in which the deductible was applied to “the expenses otherwise due” (80% owed by PIP); to the challenges to the statute resolved by the Supreme Court of Florida in the cases of Int’l Bankers Ins. Co. v. Govan, 521 So. 2d 1086 (Fla 1988) and Int’l Bankers Ins. Co. v. Arnone, 552 So. 2d 908 (Fla. 1989); the subsequent amendment of §627.739, Fla. Stat. in 2003 to include its current language, “must be applied to 100% of expenses and losses” and its re-enactment in conjunction with the PIP statute in 2007.
Florida Hospital also argues that compensability pertains to the broadest sense of PIP coverage, as set forth in §627.736(1), Fla. Stat. — that being whether this loss is covered by a PIP policy. Thus, once an accident is reported that (a) involves injury, (b) to an insured, (c) arising out of the operation, maintenance or use of the vehicle, then you have a compensable or covered loss. The Plaintiff agrees with Progressive that once you establish a compensable loss, the treatment rendered for that loss must be reasonable in amount, related and medically necessary and the carrier has a multitude of tools available to assess the reasonableness, relatedness and medical necessity. These include denying the charge, requesting more information from the provider, conducting an IME or Peer review or sending a request pursuant to §627.736(6)(b), Fla. Stat.
The Plaintiff asserts and the Court agrees that Progressive is not permitted to apply the fee schedule to bills that fall under the patient’s elected deductible (and thus outside the PIP benefits for which Progressive contracted to provide). Such a reduction is permitted only when the carrier is paying benefits under its policy. Accordingly, it is hereby,
ORDERED AND ADJUDGED:
1. Plaintiff’s Motion for Final Summary Judgment is GRANTED.
2. Defendant’s Motion for Final Summary Judgment is DENIED.
3. Plaintiff shall recover from Progressive the sum of $200.00 in benefits plus prejudgment interest (4.75% from March 3, 2014 to the date of this Final Judgment) of $11.74 for a total sum of 211.74 for which sum let execution issue. Post judgment interest of 4.75% per annum shall accrue on this judgment pursuant to §55.03, Fla. Stat.
4. 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.
