24 Fla. L. Weekly Supp. 342a
Online Reference: FLWSUPP 2405OWENInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy that provides that insurer will pay 80% of all reasonable medical expenses, considering any and all limitations authorized by PIP statute, and further provides that applicable fee schedule or payment limitation shall be under permissive payment methodology, clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule
NEUROLOGY PARTNERS, P.A. d/b/a EMAS SPINE & BRAIN SPECIALISTS, a/a/o Patricia Owens, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 2015-SC-1733. Division A. May 2, 2016. Emmet F. Ferguson, III, Judge. Counsel: Adam Saben, Jacksonville, for Plaintiff. David M. Gagnon, Taylor, Day, Grimm and Boyd, Jacksonville, for Defendant.
ORDER GRANTING DEFENDANT’SMOTION FOR SUMMARY JUDGMENT ANDDENYING PLAINTIFF’S CROSS MOTION FORSUMMARY JUDGMENT
The sole issue before the Court on the Parties’ cross- motions for Summary Judgment in this PIP case is whether Defendant in its insurance policy (as amended) made a clear and unambiguous election to limit payments for medical services based on Medicare fee schedules.
PIP insurers must “clearly and unambiguously elect the permissive [i.e., Medicare-based] payment methodology in order to rely on it.” Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., 141 So. 3d 147, 158 (Fla. 2013)[38 Fla. L. Weekly S517a]. Such election generally results in lower liability for the Insurer than the default methodology. Section 627.736(5)(a)5, Fla. Stat. provides that such an election is effective only if a notice of limitation effected by the election is provided in the policy.
In Allstate Fire & Casualty Ins. Co. v. Stand-Up MRI of Tallahassee, P.A., __ So. 3d __, 2015 WL 1223701 (Fla 1st DCA Mar. 18, 2015) [40 Fla. L. Weekly D693b], the First District was called upon to construe the following language.
In accordance with the Florida Vehicle No-Fault Law, [the Insurer] will pay to or on behalf of the injured person the following benefits. . . [E]ighty percent of reasonable expenses for medically necessary . . . services . . . 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.
The First District held that this language gave adequate notice of a clear and unambiguous election to limit payments for medical services based on Medicare fee schedules.
The policy of insurance under consideration here provides that the Defendant will pay 80% of all reasonable medical expenses, considering any and all limitations authorized by Section 627.736, Fla.Stat. and further says applicable fee schedule or payment limitation under shall be under the permissive payment methodology. This language is not distinguishable from that approved in Stand-Up MRI of Tallahassee, supra. Defendant made and gave a clear and unambiguous election to limit payments for medical services based on the permissive methodology.
Therefore, Defendant’s Motion for Summary Judgment is GRANTED. Plaintiff’s Cross Motion for Summary Judgment is DENIED.
