23 Fla. L. Weekly Supp. 159a

Online Reference: FLWSUPP 2302MATOInsurance — Personal injury protection — Discovery — Depositions — Insurer that utilized statutory fee schedule when processing medical provider’s bill is not entitled to depose provider’s corporate representative regarding reasonableness of charges

FLORIDA HOSPITAL MEDICAL CENTER as assignee of Magdalena Matos, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2015 20058 CONS. June 10, 2015. Shirley A. Green, Judge. Counsel: David B. Alexander, Orlando, for Plaintiff. Katherine E. McGinnis, Orlando, for Defendant.

ORDER

THIS MATTER having come before this Honorable Court on Plaintiff’s Motion for Protective Order Regarding the Deposition of Plaintiff’s Corporate Representative Pursuant to Fla. R. Civ. P. 1.310(b)(6) and this Honorable Court having reviewed the motion and being otherwise fully advised in the premises, it is hereby,

ORDERED AND ADJUDGED that:

1. This is a claim for Personal Injury Protection (hereinafter “PIP”) benefits arising out of a motor vehicle collision that occurred on or about 8/28/2010.

2. The Plaintiff in this matter is FLORIDA HOSPITAL MEDICAL CENTER as assignee of Magdalena Matos.

3. At all times material to the subject cause of action, the assignor, MATOS, was covered under a policy of automobile insurance by the Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, (hereinafter “STATE FARM”), which provided PIP benefits for injuries MATOS sustained in the above-referenced accident.

4. The Plaintiff provided medical services to MATOS on 8/28/2010 and submitted a bill for such services to the Defendant.

5. The Defendant issued an Explanation of Review which indicates that Defendant allowed 75% of the hospital’s [Plaintiff’s] usual and customary charges for emergency services and reimbursed Plaintiff’s bill at the reduced amount of 80% of 75% of the hospital’s [Plaintiff’s] usual and customary charges for emergency services. Therefore, Defendant can not dispute that Defendant reimbursed Plaintiff at 80% of 75% of Plaintiff’s usual and customary charges for emergency services. Clearly, 75% of the hospital’s [Plaintiff’s] usual and customary charges is located under the schedule of maximum charges within Fla. Stat. §627.736(5)(a)2. This 75% language is located no where else within Fla. Stat. §627.736.

6. This Court relies on Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a].

7. 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.

8. 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 primary 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.

9. 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.

10. 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., 80% of 75% of the hospital’s usual and customary charges ((5)(a)2.b.)). 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. 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.

11. The Court finds that the reasonableness of Plaintiff’s charge is not at issue in this matter. Discovery as to the reasonableness of Plaintiff’s charge is irrelevant, immaterial, and not reasonably calculated to lead to admissible evidence considering the legal issue before this Court (i.e., whether the policy of insurance provides sufficient notice to its insured). 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).

12. Plaintiff’s Amended Motion for Protective Order and Motion to Strike Defendant’s Motion to Compel Deposition of Plaintiff’s Corporate Representative Pursuant to Fla. R. Civ. P. 1.310(b)(6) is hereby GRANTED. The Defendant may depose the Plaintiff’s Corporate Representative as to relevant matters that does not include reasonableness. For example, including but not limited to, the authentication of documents.