23 Fla. L. Weekly Supp. 154a
Online Reference: FLWSUPP 2302LEVIInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy that states that insurer will pay 80% of the rate of schedule of maximum charges pursuant to No-Fault Law and references Medicare, workers’ compensation, and No-Fault Law schedule clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule
ORTHOPEDIC SPECIALISTS, LLP, as assignee of Lawrence Levine, Plaintiff, v. NATIONWIDE AFFINITY INSURANCE COMPANY OF AMERICA, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 15-000154-SC-SOUTH. June 12, 2015. Honorable Kathleen T. Hessinger, Judge. Counsel: Stephen D. Deitsch, Deitsch & Wright, P.A., Lake Worth, for Plaintiff. Michael G. Rabinowitz, Banker Lopez Gassler, Plantation, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FORSUMMARY JUDGMENT ANDFINAL JUDGMENT IN DEFENDANT’S FAVOR
This matter having come before the Court on Defendant’s Motion for Final Summary Judgment, and the parties having heard argument in the premises on this May 28, 2015, the Court finds as follows:
I. BACKGROUND
ORTHOPEDIC SPECIALISTS, LLP (“Plaintiff”) filed a suit for personal injury protection (“PIP”) benefits against NATIONWIDE AFFINITY INSURANCE COMPANY OF AMERICA (“Defendant”). Defendant’s position is that it properly elected the schedule of maximum charges set forth in Fla. Stat. § 627.736(5)(a)(2). Defendant now moves for final summary judgment, arguing it the subject policy clearly and unambiguously elects the schedule of maximum charges. For the reasons that follow, summary judgment should be granted in Defendant’s favor.
II. UNDISPUTED FACTS
1. Defendant issued the claimant, LAWRENCE LEVINE (the “Claimant”) an automobile insurance policy that provided PIP benefits.
2. The policy was in effect on the alleged date of loss: 12/20/12.
3. The relevant portion of the policy states (page 10 of 23 of policy 1155):
MEDICAL BENEFITS
Benefits will be paid to or for the benefit of the injured person at 80% of the rate of the schedule of maximum charges pursuant to the Florida Motor Vehicle No-Fault Law. Medical expenses that are not reimbursable under Medicare or Florida’s worker’s compensation are not covered and will not be paid. If the Florida Motor Vehicle No-Fault Law schedule does not apply to covered medical expenses or does not exist, then benefits will be paid at 80% of the reasonable amount billed.
4. Plaintiff submitted bills to Defendant for date of service 4/24/13, and Defendant paid 80% of 200% of the applicable Medicare Part B fee schedule for the year of service.
5. Plaintiff sued Defendant for breach of contract for failing to pay 80 percent of reasonable and necessary medical expense, pursuant to policy of insurance as well as violation of the PIP statute, § 627.736.
6. The amount in controversy is $463.10.III.
ANALYSIS
Interpretation of an insurance contract is a question of law for the court. Coleman v. Florida Ins. Guar. Ass’n, Inc., 517 So. 2d 686, 690 (Fla. 1988). When interpreting an insurance contract, the court is required to interpret the policy based on the plain and unambiguous language therein. GEICO v. Virtual Imaging Servs., Inc., 141 So. 3d 147, 157 (Fla. 2013) [38 Fla. L. Weekly S517a]. “[T]erms of an insurance policy should be taken and understood in their ordinary sense and the policy should receive a reasonable, practical and sensible interpretation consistent with the intent of the parties — not a strained, forced or unrealistic construction.” Siegle v. Progressive Consumers Ins. Co., 819 So. 2d 732, 736 (Fla. 2002) [27 Fla. L. Weekly S492a] (quoting General Accident Fire & Life Assurance Corp. v. Liberty Mut. Ins. Co., 260 So. 2d 249, 253 (Fla. 4th DCA 1972)).
The Court is bound by Geico General Insurance Company v. Virtual Imaging Services, Inc., 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]. In Virtual Imaging, the Court held that an insurer must clearly and unambiguously give notice to its insured that the insurer elected the permissive fee schedule set forth in § 627.736(5)(a)(2) before availing itself of the benefits of paying the statutory amount. Id. at 150.
Per Virtual, there are two different methodologies for calculating reimbursements under the PIP statute. The first methodology is a fact dependent methodology that takes into account the service provider’s usual and customary charges, community-specific reimbursement levels, and other relevant information. See § 627.736(5)(a)(1), Fla. Stat. (2012); Virtual Imaging, 141 So. 3d at 155-56; AllState Fire and Casualty Insurance v. Stand-Up MRI of Tallahassee, P.A., (Case No. 1D14-1213, Fla. 1st DCA 2015) [40 Fla. L. Weekly D693b]. The second methodology, introduced by the Legislature in 2008, allows reimbursement for medical services to be limited via the use of fee schedules identified in § 627.736(5)(a)2 Fla. Stat. (2012); Virtual 141 So. 3d at 156. To use the fee schedules to limit reimbursements, however, the Florida Supreme Court held that insurers must first give notice to their insureds within the policy. Id at 158; Stand-Up MRI of Tallahassee, page 4.
The question for this Court, therefore, is whether Defendant clearly and unambiguously elected the statutory fee schedule.
In this Court’s decision in David Wall, M.D. (Patient: Pave; Khvorostov) v. Allstate Fire and Casualty Insurance Co., 21 Fla. L. Weekly Supp. 285b (Pin. Co. Ct. November 19, 2013) the question was whether Allstate properly elected the fee schedules under § 627.736(5)(a)(2) in its policy. The language Allstate issued in the PIP portion of the insured’s policy was the following:
Any amounts payable under this coverage shall be subject to any and all limitations authorized by section 672.736, 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, all fee schedules.
This Court found in David Wall, M.D. that Allstate’s policy specifically advises the insured that any amounts payable shall be subject to any and all limitations, authorizer by s. 627.736 or any other provisions of the Florida Motor Vehicle No-Fault Law, including all fee schedules. It is clear and unambiguous that Allstate elected the fee schedules under § 627.736(5)(a)(2) as there can be no other limiting fee schedules under the PIP statute.
The 6th Circuit Court, Appellate Division, in and for Pinellas County, agreed with this Court’s decision in David Wall, M.D. In Allstate Fire and Casualty Insurance Company v. Orthopedic Specialists, as assignee of Eoanna Spyoropolous, Case no. 13-000003AP-88B [21 Fla. L. Weekly Supp 470a] (Fla. 6th Cir. Ct. App. Div. December 10, 2013), that Court also found Allstate’s policy to clearly and unambiguously elect the fee schedules under § 627.736(5)(a)(2) based on the words “shall” and “fee schedules. As an appellate decision out of the 6th Circuit, I find that case to be binding upon this Court.
Also, the First District Court of Appeal recently ruled in favor of Allstate’s policy and the election of the fee schedules. See AllState Fire and Casualty Insurance v. Stand-Up MRI of Tallahassee, P.A., (Case No. 1D14-1213, Fla. 1st DCA 2015) [40 Fla. L. Weekly D693b]: “We agree with Allstate that the policy gives sufficient notice of its election to limit reimbursements by use of the fee schedules. Our conclusion stems from the policy’s plan statement that reimbursements “shall” be subject to the limitations in § 627.736, including ‘all fee schedules.’ ”
This Court finds that like Allstate’s policy, Defendant’s policy made a clear and unambiguous election to apply the reimbursement limitations permissible under § 627.736(5)(a)(2). The policy states it will pay eighty percent of the “rate of the schedule of maximum charges pursuant to the Florida Motor Vehicle No-Fault Law.” In addition, the following sentence clearly refers to “Medicare or Florida’s worker’s compensation.” The third sentence in the portion of the policy refers to the “Florida Motor Vehicle No-Fault Law schedule.” The Court cannot construe the first sentence on its own; rather, it must consider applicable provisions collectively. Matthews v. Ranger Ins. Co., 281 So. 2d 345, 348 (Fla. 1973) (“We have held that a single insurance policy provision should not be considered in isolation, but should be construed with other policy provisions against the background of the case.); General Acc. Fire & Life Assur. Corp., 260 So. 2d at 252 (“[T]he policy must be construed according to the entirety of its terms and conditions.”).
Contrary to Plaintiff’s arguments, there are not “two fee schedules” within § 627.736. Per Virtual and Stand-Up MRI, there are two “methodologies.” There is only one fee schedule and that is located within § 627.736(5)(a)(2) Fla. Stat. (2012). The mentioning of these “maximum schedule of charges” and additional language in Defendant’s policy is enough to put its insured (and Plaintiff via the assignment of benefits) on notice of such fee schedule limitations.
The Court finds that Defendant’s policy language complies with the requirements set forth by the Florida Supreme Court in Virtual Imaging. Defendant affirmatively and expressly adopted the fee schedule limitations that the Legislature authorized. It issued a policy that affirmatively informed its insured that PIP benefits under that policy would be limited to the fee schedules set forth in the Florida Motor Vehicle No-Fault Law. Accordingly, Defendant did not breach its policy or violate the No-Fault Law when it paid pursuant to the Medicare Part B fee schedule.IV. CONCLUSION
Based on the foregoing reasons, it is ORDERED and ADJUDGED that Defendant’s Motion for Summary Judgment is GRANTED. Plaintiff shall take nothing in this action and Plaintiff shall go hence without day. The Court reserves jurisdiction on the issue of attorney’s fees and costs.
