24 Fla. L. Weekly Supp. 996a
Online Reference: FLWSUPP 2411WOODInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — Policy language listed in insurer’s 9811B policy clearly and unambiguously gave insurer the option of using “any fee specified in any fee schedule” in determining reasonable expenses and to reimburse the lowest amount for those medical services — Summary judgment entered in favor of insurer
PRECISION DIAGNOSTIC, INC. D/B/A PRECISION MRI (Assignee of Woodard, Vinquisha), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 13 00758 CONO 73. December 19, 2016. Steven P. Deluca, Judge. Counsel: Christopher Kasper, Ovadia Law Group, Boca Raton, for Plaintiff. Stephen G. Mellor, ROIG Lawyers, Deerfield Beach, for Defendant.
FINAL JUDGMENT FOR THE DEFENDANT
This Matter came before the Court for hearing on December 6th, 2016 on Plaintiff’s Motion for Final Summary Judgment and Defendant’s Cross Motion for Final Summary Judgment. The Court, having heard arguments from counsel, having reviewed the record and being otherwise duly advised in the premises, does hereby make the following findings of fact and conclusions of law, and denies Plaintiff’s Motion for Final Summary Judgment and grant’s Defendant’s Motion for Final Summary Judgment.
FINDING OF FACTS
The Plaintiff, PRECISION DIAGNOSTIC, INC. D/B/A PRECISION MRI (ASSIGNEE OF WOODARD, VINQUISHA (hereinafter referred to as “PRECISION DIAGNOSTIC” or “Plaintiff”) is a healthcare provider, who rendered MRI diagnostic services to Vinquisha Woodard for injuries she sustained in a motor vehicle accident on June 16, 2012.
Following the accident, Vinquisha Woodard filed a claim for No-Fault benefits under a policy of insurance issued in Georgia to Keisha Scott by STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, (hereinafter referred to as “STATE FARM”) which did not elect for any contractual Medical Payments Coverage (MPC) benefits or any other No-Fault benefits.
That following an investigation of this claim, STATE FARM qualified Vinquisha Woodard for Florida Personal Injury Protection (PIP) benefits in the amount of $10,000.00.
Thereafter, the Plaintiff, PRECISION DIAGNOSTIC submitted a bill to STATE FARM for an MRI scan of Vinquisha Woodard’s cervical spine under CPT code 72141 in the amount of $1,600.00 and an MRI scan of her lumbar spine under CPT code 72148 in the amount of $1,600.00 for a total amount of $3,200.00 for date of service September 13, 2012.
On October 2, 2012, the Defendant, STATE FARM allowed $1,075.38 for the cervical spine MRI scan (72141) and $1,140.92 for the lumbar MRI scan (72148) and reimbursed the Plaintiff at 80% of those amounts for a total reimbursement of $1,773.04. Said reimbursements were based upon 200% of the Participating Physicians Fee Schedule of Medicare Part B for the region where the services were rendered for the year 2007 pursuant to Florida Statute §627.736(5)(a) (2012). That STATE FARM argues that the language found within the subject policy of insurance which was issued in Georgia and for which the instant claim was made, specifically puts the insured and the Plaintiff on notice that STATE FARM could utilize a “Fee Schedule” listed in the Schedule of Maximum Charges under Fla. Stat. §627.736(5)(a) (2012), and specifically 200% of the Participating Physicians Fee Schedule of Medicare Part B, to reimburse the MRI services rendered by the Plaintiff to Vinquisha Woodard.
The specific language that the Defendant, STATE FARM relies on to make the subject reimbursements to the Plaintiff is listed in the STATE FARM Georgia Policy Form 9811B, which was in effect at the time of the accident and states in pertinent part:
“Medical Expenses means reasonable expenses for medical services. . .”
“Reasonable Expenses means the lowest one of the following charges:
1. The usual and customary fees charged by a majority of healthcare providers who provide similar medical services in the geographical area in which the charges were incurred;
2. The fee specified in any fee schedule;
a. applicable to medical payments coverage, no-fault coverage, or personal injury protection coverage included in motor vehicle liability policies issued in the state where medical services are provided; and
b. as prescribed or authorized by the law of the state where medical services are provided;
3. The fees agreed to by both the insured’s healthcare provider and us; or
4. The fees agreed upon between the insured’s healthcare provider and a third party when we have a contract with such third party.”
That the Plaintiff, PRECISION DIAGNOSTIC filed the instant lawsuit and claims that STATE FARM did not pay the full amount of its claim for these MRI services rendered to Vinquisha Woodard for date of service September 13, 2012 and that STATE FARM owes the difference between what STATE FARM paid and 80% of the amount billed.
There is no issue as to whether the MRI services rendered to Vinquisha Woodard by Plaintiff were related and medically necessary or that STATE FARM paid PIP benefits to PRECISION DIAGNOSTIC in accordance with the Schedule of Maximum Charges under Fla. Stat. §627.736(5)(a) (2012), and specifically at 80% of 200% of the Participating Physicians Fee Schedule of Medicare Part B for the year 2007.
The issue presented here is whether STATE FARM was entitled to reimburse Plaintiff’s bills under the terms of the policy for which the instant claim was made.
CONCLUSION OF LAW
The deciding issue is whether the policy language found in STATE FARM’s Policy Form 9811B entitled it to reimburse the MRI services rendered by the Plaintiff to Vinquisha Woodard in accordance with the Schedule of Maximum Charges listed in Fla. Stat. §627.736(5)(a) (2012), and specifically 200% of the Participating Physicians Fee Schedule of Medicare Part B for the year 2007.
The interpretation of an insurance contract is a question of law to be determined by the Court. See Thomas v. Fusilier, 966 So. 2d 1001 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D2457a]. The “terms 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]; (“Where no ambiguity exists, the policy shall be construed according to the plain language of the policy as bargained for by the parties.” General Star Indem. Co. v. West Florida Village Inn, Inc., 874 So. 2d 26, 30 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D1070b].
The Florida PIP Statutes codified under Fla. Stat. §627.736(5)(a) (2012) states in pertinent part;
(1) The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
******
(f) For all other medical services, supplies, and care, 200 percent of the allowable amount under:
(I) The participating physicians fee schedule of Medicare Part B . . . except that it may not be less than the allowable amount under the applicable schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B. Id.
The Defendant, STATE FARM directs the Court to the string of Florida District Court of Appeal cases involving the policy language issued by Allstate Insurance Company to support its argument that the language in the Georgia Policy Form 9811B is sufficient to put the insured and the Plaintiff on notice that it can utilize the Fee Schedules listed in the Florida PIP Statute to reimburse Plaintiff’s bill.
In Florida Wellness & Rehabilitation, et al. v. Allstate Fire and Casualty Ins. Co. et al., 41 Fla. L. Weekly D1619c (Fla. 3d DCA, July 13, 2016), the Third District Court of Appeal was tasked to determine whether the language in Allstate’s policy was sufficient to put the insured on notice that it would use the Medicare Fee Schedules as a basis for limiting reimbursements for medical services as required by the Florida Supreme Court in GEICO v. Virtual Imaging Servcs. Inc., 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]. Id. at *2. The language found in the Allstate policy at issue provided in pertinent part that:
“[a]ny 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.” Id.
The Court agreed with Allstate in that the plainly stated policy language provided sufficient notice that it would constrain its reimbursements in accordance with the fee schedules listed in section 627.736(5)(a)(2)(f). Id.
The First District Court of Appeal of Florida had also previously held that this same Allstate policy language was sufficient to satisfy the requirements of Virtual Imaging and place the insured on notice of Allstate’s election of the statutory limitations. See Allstate Fire & Casualty Ins. v. Stand-Up MRI of Tallahassee, P.A. 2015 WL 1223701 (Fla. 1st DCA Mar. 18, 2015) [40 Fla. L. Weekly D693b].
Additionally, the Second District Court of Appeal, also reviewing identical policy language in an Allstate policy, arrived at the same holding. Allstate Indemnity Co. v. Markley Chiropractic & Acupuncture, LLC, 41 Fla. L. Weekly D793b, D794 (Fla. 2d DCA Mar. 30, 2016) .
The Plaintiff argues that the language found in the 9811B Policy Form is ambiguous as it allows STATE FARM to choose one of four reimbursement options in making payment to Plaintiff for the MRI services at issue and that the language does not specifically list the Medicare Fee Schedule as a payment option. The Plaintiff argues that the Fourth District Court of Appeal case of Orthopedic Specialists v. Allstate Ins. Co., 177 So.3d 19 (Fla 4th DCA Aug. 19, 2015) [40 Fla. L. Weekly D1918a] which is in conflict with the First, Second and Third District Court of Appeal as to the Allstate policy language, is also binding on this Court and that its opinion against Allstate should be applied to this case.
The Defendant, STATE FARM argues that the Allstate policy language at issue in the Orthopedic Specialists case is distinguishable from the subject policy language listed in the STATE FARM 9811B Policy Form in this case. Specifically, that the Court in Orthopedic Specialists found that Allstate’s policy was ambiguous because of the words “subject to” in that the Allstate policy stated “ “[a]ny 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 Fourth DCA held that the “subject to provision” was ambiguous with many possible meanings and that Allstate did nothing more than state the obvious and the policy text does not say the limitations “shall be applied”; only that they “shall be subject to being applied”. That the word “shall” does not make it clear whether Allstate will utilize the alternative method or is simply recognizing its entitlement to do so. Id. at 24-25.
However, as the Defendant correctly points out, the 9811B policy provisions do not have the words “subject to” or “shall be subject to” as part of its language in defining a “Reasonable Expense” and clearly informs the insured and the Plaintiff that “Reasonable Expenses” is the lowest of several options including, “the fee specified in any fee schedule: applicable to medical payments coverage, no-fault coverage, or personal injury protection coverage . . . and, as prescribed or authorized by the law of the state where medical services are provided.” (Emphasis added).
The Defendant also referred the Court to the concurring opinion from Judge Levine in the Orthopedic Specialists case. Specifically, in dicta at the end of the opinion Judge Levine states: “If the drafter of the contract wanted to notify the insured that the medical bills would be paid pursuant to a particular statutory provision the policy would state “shall pay” (or” must pay” or “will pay”) according to that provision, and not state “shall be subject to”. Id. at 29. That the 9811B policy states under the title “Insuring Agreement” “We will pay (1) medical expenses incurred because of bodily injury that is sustained by an insured and caused by a motor vehicle accident . . .”
Taking this into consideration and reviewing the STATE FARM policy language listed in Policy Form 9811B, it is clear to the Court that the instant case is distinguishable from Orthopedic Specialists. Additionally, the 9811B Policy Form language clearly and unambiguously gave STATE FARM the option in determining “Reasonable Expenses” for “medical services” rendered to the patient in Florida. These policy provisions took into account that it could elect the lowest charge found in “any fee schedule” that is “applicable to medical payments coverage, no-fault coverage, or personal injury protection coverage” within “the state where medical services are provided” and as “prescribed or authorized by the law of the state where medical services are provided.” Clearly, the Florida PIP Statute has “fee schedules” that would reimburse Plaintiff’s bills at issue. This was appropriately utilized by STATE FARM when considering the language of the policy and the Florida PIP statute as a whole. The Plaintiff has not provided any evidence that the other three options found within the “Reasonable Expenses” provision of the policy would create a different reimbursement amount. To the contrary, if the Plaintiff claims that its charges are usual and customary, then it is clear that they would be higher than the reimbursements made by STATE FARM in this claim for the MRI services at issue.
The insured entered into the contract with STATE FARM with full knowledge that if medical services were rendered to her or any other person making a claim under the policy, that STATE FARM in determining “Reasonable Expenses” could utilize “any fee specified in any fee schedule” that was “applicable to medical payments coverage, no-fault coverage, or personal injury protection coverage” and “as prescribed or authorized by the law of the state where the services were provided”, to reimburse the lowest amount for those medical services. STATE FARM clearly made the appropriate reimbursements in this claim when it paid Plaintiff 80% of 200% of the Participating Physicians Fee Schedule of Medicare Part B for the year 2007 pursuant to Fla. Stat. §627.736(5)(a) (2012). The Plaintiff has not offered any other reasonable interpretation of STATE FARM’s 9811B Policy language.
It is therefore,
ORDERED AND ADJUDGED, that Plaintiff’s Motion for Final Summary Judgment is hereby denied and Defendant’s Cross Motion for Summary Judgment is hereby granted with Final Judgment hereby entered for the Defendant. The Plaintiff shall take nothing by this action and the Defendant shall go hence without a day. The Court reserves jurisdiction to determine reasonable attorneys’ fee and taxable costs.
