23Fla. L. Weekly Supp. 260a
Online Reference: FLWSUPP 2303PATTInsurance — Personal injury protection — Coverage — Medical expenses — Insurer’s motion for summary judgment is procedurally deficient for failure to attach complete copy of policy — Motion for summary judgment is denied due to ambiguity in policy that allows insurer to choose to reimburse according to permissive statutory fee schedule or reasonableness method
NEW SMYRNA IMAGING, LLC, as assignee of Sadie Patterson, Plaintiff, v. DAIRYLAND INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2013 22052 CONS. September 30, 2014. Shirley A. Green, Judge.
ORDER DENYING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS MATTER having come before this Honorable Court on Defendant’s Motion for Final Summary Judgment and this Honorable Court having heard arguments of counsel and being otherwise fully advised in the premises, it is hereby,
ORDERED AND ADJUDGED as follows:
1. The Defendant’s Motion for Final Summary Judgment is DENIED as a procedural matter as the Defendant failed to attach a complete copy of the subject insurance policy.
2. The Defendant’s Motion for Final Summary Judgment is also DENIED as a substantive matter as the Court finds the subject insurance policy to be ambiguous.
3. With regard to the substantive ruling, the Court finds that Defendant’s insurance policy, specifically the Personal Injury Protection Coverage Amendatory Endorsement, includes two (2) separate and distinct payment methodologies. The policy provides reimbursement methods which adopt Florida Statute §627.736(5)(a) (2012) and Florida Statute §627.736(5)(a)(1) (2012) thereby creating an ambiguity with regard to method of payment.
4. Dairyland’s insurance policy provides in pertinent part as follows:
PERSONAL INJURY PROTECTION COVERAGEAMENDATORY ENDORSEMENT – FLORIDA
Personal Injury Protection Endorsement is changed as follows.
DEFINITIONS.
The below is added to item 3.
***
H. Reasonable means with respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment or supply.
INSURING AGREEMENT.
***
The following is added.
We will limit reimbursement of medical expenses to 80 percent of a properly billed reasonable charge, but in no event will be pay more than 80 percent of the following schedule of maximum charges:
***
6. For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B. However, if such services, supplies, or care is not reimbursable under Medicare Part B, we will limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13, Florida Statutes, and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation will not be reimbursed by us.
[Emphasis Added]
5. Defendant’s policy allows it to choose reimbursement according to the “reasonableness” method as set forth in (5)(a) or according to the permissive “fee schedule” method as set forth in (5)(a)(1) at its discretion. This is not permissible. See Geico Gen. Inc. v. Virtual Imaging Services., Inc., 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]; Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So. 3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a]; see also University Community Hospital (a/a/o Marjorie Young) v. Mercury Ins. Co. of Florida, 21 Fla. L. Weekly Supp. 89a (13th Jud. Cir. Hillsborough Cty. September 16, 2013).
6. Furthermore, in its Explanation of Benefits, Defendant expressly states that it based payment for the CPT Codes at issue “upon 200% of the 2007 Participating Level of Medicare physician fee schedule for the region in which the services were rendered. . .” Nowhere in the Defendant’s policy is the 2007 Medicare fee schedule outlined or mentioned as a basis for payment.
7. Based on the facts set forth above, the Defendant’s insurance policy is ambiguous and does not clearly notify the insured or the healthcare provider which payment methodology it has selected as required by Florida law. See Geico Gen. Inc. v. Virtual Imaging Services., Inc., 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]; see also Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So. 3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a].
8. Accordingly, Defendant’s Motion for Final Summary Judgment is DENIED.
