23 Fla. L. Weekly Supp. 637b
Online Reference: FLWSUPP 2306WHITInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy providing that insurer will pay 80% of reasonable expenses but also providing that amount payable “shall be subject to any and all limitations” authorized by PIP statute does not provide clear and unambiguous notice of intent to limit reimbursement to Medicare Part B fee schedule — Fact that policy was approved by Office of Insurance Regulation does not compel finding that policy correctly invokes fee schedule limitations where there is nothing in insurer’s submission to OIR or in OIR’s response to indicate that OIR is approving policy language as election to limit reimbursement to fee schedule
MR SERVICES I, INC. (a/a/o William White), Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 13-12538 COCE (53). November 4, 2015. Robert W. Lee, Judge. Counsel: Abdul-Sumi Dalal, Lander, Dalal and Associates, P.L., Fort Lauderdale, for Plaintiff. Ana Romes, Miami, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINALSUMMARY JUDGMENT AND DENYING DEFENDANT’SCROSS-MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on November 3, 2015 for hearing of the Plaintiff’s Motion for Final Summary Judgment and Defendant’s Cross-Motion for Final Summary Judgment, and the Court’s having reviewed the Motions, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
This case involves competing interpretations of a PIP insurance policy. The Plaintiff’s interpretation would result in Allstate’s having to pay more on the individual medical bills submitted, and of course Allstate’s would result in a finding that the lesser amount it paid complied with the policy.
The language of Allstate’s policy provides as follows, as pertains to personal injury protection (PIP) coverage: “In accordance with the Florida Motor Vehicle No-Fault Law, we will pay to or on behalf of the injured person the following benefits. [. . .] Eighty percent of reasonable expenses for medically necessary [. . .] services.” One page later, in the “Limits of Liability” portion of the PIP section, the policy further provides, “Any amounts payable under this coverage shall be subject to any and all limitations, authorized by section 627.736, or any other provisions of the Florida Motor Vehicle No-Fault Law, as enacted, amended or otherwise continued in the law, including but not limited to, all fee schedules” (emphasis added). Allstate argues that the only limitation authorized by section 627.736, as pertains to the bills in this case, is the 200% Medicare cap, and as a result, it is unambiguously electing to use the Medicare cap methodology as its payment method.
Allstate chose to pay the submitted bills at the 200% Medicare cap, an option provided by the No-Fault Law. The Plaintiff argues that Allstate failed to clearly and unambiguously include this methodology in its policy, as required by Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a], and as a result, Allstate is obligated to pay 80% of the “reasonable expenses.” Allstate agrees that if the Plaintiff’s interpretation is correct, it would owe Plaintiff an additional sum towards the medical bills submitted. In other words, Allstate agrees that what the Plaintiff billed is what the market of Broward County typically would deem reasonable.
Initially, the Court surmised that this issue was put to rest by the controlling decision of the appellate court in Orthopedic Specialists v. Allstate Insurance Company, 40 Fla. L. Weekly D1918a (Fla. 4th DCA Aug. 19, 2015), which held that the referenced language did not clearly and unambiguously elect the Medicare fee schedules. Not so fast though. While Allstate concedes that this Court is bound by the decision in Orthopedic Specialists, it argues that the instant case goes beyond the issue addressed by the Fourth District Court of Appeal. According to Allstate, the policy at issue in the instant case, while having the same language as that addressed in Orthopedic Specialists, was issued after the Florida Legislature had amended the statute to provide an insurer a further safe harbor for use of the Medicare fee schedules. In 2012, the Legislature amended Florida Statute §627.736(5)(a)(5) to provide that “a policy form approved by the office [Office of Insurance Regulation] satisfies this requirement,” i.e., that the “insurance policy includes a notice at the time of issuance or renewal that the insurer may limit payment pursuant to the fee schedule” (emphasis added).
By letter of June 23, 2008, Allstate transmitted to the Office of Insurance Regulation [“OIR”] its proposed 10-page Florida Amendatory Endorsement AU10766-1 which Allstate noted was being done “to comply with Florida Statute 627.736 referencing the use of fee schedules.” Allstate argues that it received the “approval” of the OIR to use this language on July 29, 2008 by stamping “APPROVED” on each page of the Endorsement and on July 30, 2008 when the OIR sent a letter to Allstate noting that “[t]he forms submitted in this filing are APPROVED.” The language in the submitted endorsement is that which was disapproved by the Fourth District Court of Appeal in Orthopedic Specialists. However, there is nothing in either Allstate’s submission to the OIR, or in the OIR’s response to Allstate, that the reason for the approval if so that “the insurer may limit payment pursuant to the fee schedule,” the language provided in the statute. Merely stating that an endorsement or policy which gives a general mention of fee schedules is “APPROVED,” as is the situation in the instant case, does not result in a finding that the OIR is approving a limitation on payment to the fee schedules arising out of a mere mention of fee schedules. Otherwise, any letter merely stating that a form is “APPROVED,” without more, would result in an finding that the insurer has automatically invoked the fee schedule limitations, even if the insurer decided that the traditional “reasonableness” analysis might be more advantageous. And because no insurer may issue a policy until it is approved by the OIR, any new policy would automatically incorporate the fee schedules once approved. This is clearly not the result the Legislature intended.
To properly harmonize all provisions of Florida Statute §627.736(5)(a) so that an insurer retains an option to actually use the “reasonableness” provisions of the statute if desired in lieu of the fee schedule provisions, this Court holds that it must be clear that the OIR is approving the language as an election to limit payment pursuant to the fee schedule. Because Allstate did not say so in its letter requesting approval to the OIR, and the OIR did not alternatively say so in its letter of approval, the Court finds that Orthopedic Specialists still controls the outcome in this case. A mere reference to the fee schedules, without more, is insufficient. Accordingly, it is hereby
ORDERED and ADJUDGED that the Plaintiff’s Motion for Summary Judgment is GRANTED and Defendant’s Cross-Motion for Summary Judgment is DENIED. As the both parties have stipulated that this ruling is dispositive of the case, the Plaintiff shall submit a proposed final judgment.
