23 Fla. L. Weekly Supp. 880a
Online Reference: FLWSUPP 2308WEBEInsurance — Personal injury protection — Coverage — Medical expenses — Policy endorsement providing that any and all amounts payable “shall be subject to any and all limitations authorized by section 627.736… or any other provisions of Florida Motor Vehicle No-Fault Law, … including, but not limited to, all fee schedules” does not make it clear whether insurer is actually electing to limit its reimbursement to Medicare fee schedule or is simply reserving right to elect to do so — Letter from Office of Insurance Regulation approving endorsement does not make endorsement a clear and specific election of fee schedule
STAND-UP MRI OF BOCA RATON, P.A. a/a/o Joy Weber, Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO 13-3394 (73). October 13, 2015. Honorable Jill K. Levy, Judge, for Judge Stephen P. Deluca. Counsel: Thomas J. Wenzel and Sadie E. Naveo, Cindy A. Goldstein, P.A., Coral Springs, for Plaintiff. Gladys Perez, Shutts & Bowen, LLP, Miami, for Defendant.
ORDER ON PARTIES’ CROSS MOTIONSFOR SUMMARY JUDGMENT
THIS CAUSE having come to be heard by the Court on the Parties’ Cross Motions for Summary Judgment. The issue before the Court is: whether the defendant’s PIP insurance policy language is legally sufficient to authorize Allstate to apply the Medicare fee schedule reimbursement limitations set forth in section 627.736(5)(a)2., Florida Statutes. The Court has taken into consideration the parties’ affidavits, argument of counsel and relevant case law and finds as follows:
Plaintiff, Stand-Up MRI of Boca Raton, P.A. (“STANDUP”) sued Defendant, Allstate Insurance Co. (“ALLSTATE”) for breach of contract. The date of loss in this case was August 8, 2012. The insured’s policy was renewed on July 4, 2012. Once ALLSTATE received the demand letter from the provider, STANDUP, it issued 80% payment of the permissive Medicare fee schedule (80% of 200% of Medicare). In Geico v. Virtual Imaging, 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a], the Supreme Court held that “the insurer is required to give notice to its insured by electing the permissive Medicare fee schedule in its policy before taking advantage of the Medicare fee schedule methodology to limit reimbursements.” Virtual Imaging at 150 Id. Approving Kingsway Amigo Insurance Co. v. Ocean Health, Inc., 63 So.3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a].
The policy in this case provides the following in pertinent part with respect to PIP benefits:
Allstate will pay to or on behalf of the injured person the following benefits:
1. Medical Expenses Eighty percent (80%) of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services. (emphasis ours)
An endorsement to the policy provides the following:
Limits of Liability . . . .
Any amounts payable under this coverage shall be subject to any and all limitations, authorized by section 627.736, (which would apply a Medicare fee schedule limitation) 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 ours) Policy Endorsement -AU10766-1
Recently, the Fourth DCA issued an opinion in Orthopedic Specialists v. Allstate Insurance Co., August 19, 2015, __ So.3d __, 2015 WL 4927203, 40 Fla. L. Weekly D1918a which involved 32 cases on appeal which contained the same language in their policies and endorsements that the instant case contains. The Court held that in “providing that any amounts payable would be “subject to” “any and all limitations” authorized by the statute or any amendments thereto, Allstate did nothing more than to state the obvious by indicating that there was a possibility (and the statutory authorization) for Allstate to apply a specific reimbursement limitation. The only reasonable way to read the language is as a general recital of Allstate’s reservation of its right to apply limitations authorized by law, with the accompanying and corresponding obligation to notify its policy holders of this election.” Allstate Id. The Court ruled that the language at issue is ambiguous and must be construed in favor of the Providers.
Effective July 1, 2012, (policy in this case renewed July 4, 2012), the Legislature amended the PIP statute to include a specific requirement that insurers notify their policyholders at the time of issuance or renewal of the insurer’s election to limit payment pursuant to the fee schedules set forth in the PIP statute. This 2012 amendment provided as follows:
“Effective July 1, 2012, an insurer may limit payment as authorized by this paragraph only if the insurance policy includes a notice at the time of issuance or renewal that the insurer may limit payment pursuant to the schedule of charges specified in this paragraph. A policy form approved by the office satisfies this requirement. If a provider submits a charge for an amount less than the amount allowed under subparagraph 1., the insurer may pay the amount of the charge submitted.” § 627.736(5)(a) 5., Fla. Stat. (2012) (emphasis added).
ALLSTATE argues that a ‘policy form approved by the office’ (Office of Insurance Regulation) satisfies the requirement of giving notice to the insured of the insurer’s election of the permissive Medicare fee schedule reimbursement. In support of its argument, ALLSTATE submitted a letter from the Office of Insurance Regulation dated July 30, 2008, which approved its Policy Endorsement-AU10766-1 to take effect on November 10, 2008.
STANDUP makes the same argument as the providers did in the Allstate case; that the “shall be subject to” provision in the endorsement is ambiguous, as it is unclear whether Allstate has actually and in fact elected to limit its reimbursements to the Providers under the Medicare fee schedules as provided for in section 627.736(5)(a)2.-5., Florida Statutes (2012), or is simply announcing that it is reserving its right to elect to do so. Allstate Id.
In reading § 637.736(5)(a)5, the statute must be given its plain and obvious meaning if it is clear and unambiguous. If so, there is no occasion for resorting to the rules of statutory interpretation and construction. Kingsway at 66, 67 Id citing Holly v. Auld, 450 So.2d 217 (Fla. 1984) When interpreting a statute, we interpret its language and the resulting operation of its terms by reading the statute as a whole to give it meaning to its entirety. Allstate Id. citing Daneri v. BCRE Brickell, LLC, 79 So.3d 91, 94 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D76a].The statute, § 627.736(5)(a)5, is unambiguous in its plain language which allows an insurer to choose the Medicare fee schedule methodology as its choice of reimbursement limitation by sending notice to the insured at the time of issuance or renewal. The Supreme Court in the Virtual Imaging decision addressed the 2012 statutory amendment and concluded that “after the dispute over the 2008 amendments arose, the Legislature amended the PIP statute to include a specific requirement that insurers notify their policyholders at the time of issuance or renewal of the insurer’s election to limit payment pursuant to the fee schedules set forth in the PIP statute.” Virtual Imaging at 154.
As the 4th DCA in Allstate determined, the endorsement notice must do more than simply indicate there’s a possibility for ALLSTATE to apply the specific reimbursement level. Id. By using the phrase “subject to” in its endorsement, ALLSTATE has not incorporated the optional provisions of the Medicare fee cap into the policy. Id citing Synergy Chiropractic & Wellness Ctr., Inc. v. Allstate Property & Casualty Ins. Co., 22 Fla. L. Weekly Supp. 750a (Broward County Court, Jan. 20, 2015) citing St. Augustine Pools, Inc. v. James M. Barker, Inc., 687 So.2d 957, 958 (Fla. 5th DCA 1997) [22 Fla. L. Weekly D432a]. A letter from the office of insurance regulation approving the endorsement does not make the endorsement a clear and specific election of the fee schedule. Additionally, the endorsement was approved in July, 2008. At that time, per the Allstate case, it failed to sufficiently make the permissive fee schedule election and since the statutory amendment became effective on July 1, 2012, the language has not changed. It is therefore,
ORDERED AND ADJUDGED that Plaintiff’s Motion for Summary Judgment is GRANTED and Defendant’s Motion for Summary Judgment is DENIED. STANDUP shall submit a final summary judgment.
