24 Fla. L. Weekly Supp. 995a
Online Reference: FLWSUPP 2411HICKInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy that contains both reasonableness factors established under section 627.736(5)(a) and schedule of charges established under section 627.736(5)(a)1 elects both reimbursement methods simultaneously and fails to clearly and unambiguously elect fee schedule method of reimbursement
STUART B. KROST, M.D., P.A. a/a/o Willa Hickson, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50-2016-SC-002791-XXXX-MB. January 19, 2017. Nancy Perez, Judge. Counsel: Gregory J. Blackburn, Landau & Associates, P.A., Hallandale Beach, for Plaintiff. Scott Danner, Fort Lauderdale, for Defendant.
ORDER DENYING DEFENDANT’S A MOTIONFOR SUMMARY JUDGMENT AS TO APPLICATIONOF MEDICARE FEE SCHEDULE (9810A)
THIS CAUSE having come to be heard on November 1, 2016, Defendant’s Motion for Summary Judgment as to Application of Medicare Fee Schedule (9810A), and the Court, having considered the motion, the Record, and the legal authorities and arguments of counsel, and being otherwise fully advised in the premises, it is hereby,
ORDERED AND ADJUDGED:
That for the reasons set forth below and stated on the record, the Defendant’s Motion for Summary Judgment is DENIED.
The Court finds that the Defendant’s 9810A policy does not make a clear and unambiguous election of the permissive “schedule of maximum charges” found in Fla. Stat. §627.736(5)(a)(1)(2013). See Geico v. Virtual Imaging, 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a] (wherein, the Supreme Court stated that there are two payment methodologies in the statute and that the policy of insurance must be clear and unambiguous as to which will be used and Kingsway Amigo v. Ocean Health, Inc., 63 So.3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a] (although the Court notes the PIP statute was renumbered between 2008 and 2013, the proposition of law remains that there must be clear and unambiguous notice of a coverage limitation). In this case, the insurance policy contains both the reasonableness factors under Fla. Stat. 627.736(5)(a) (in which they also comingle the reasonableness factors with the fee schedule method) and the schedule of charges under Fla. Stat. 627.736(5)(a)(1). These different payment methods are inherently ambiguous because State Farm’s use of the schedule for one CPT code and the reasonableness factors in another instance may result in completely different payment amounts — for the same code, from the same provider, to the same patient. Defendant’s use of electing both methods simultaneously, when there is a reasonableness test in the policy, creates an issue for trial. This insurance claim is a perfect example, in that some bills were paid at a higher rate than 200% of Medicare, which definitively shows that State Farm used a reasonableness analysis in some instances and the Fee Schedule in others, based on the affidavit of Jeffrey Sheloskey. The explanations of review from this provider, Stuart B. Krost M.D., P.A., show that a reasonableness analysis was conducted, while State Farm continues to argue that they pay at the Fee Schedule rate. Because payment, and thus coverage, is different depending on the method used, there is a clear inconsistency, which creates an ambiguity. Ambiguity in policy language must inure to the benefit of the insured, granting greater coverage and/or benefit.
Furthermore, although not dispositive for this Court, because of other latent ambiguities and underpayments, the policy does not contain an exclusive election of one payment methodology as stated it Orthopedic Specialists v. Allstate, and leaves the choice open. 177 So.3d 19 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1918a]. This issue was articulated in Judge Robert Lee’s ruling, decided March 30, 2016 in Pain and Injury Relief of Lake Worth a/a/o Evener Deronvil vs. State Farm Case No. 15-2819 COCE (53) [23 Fla. L. Weekly Supp. 1087a] and a litany of other cases provided to this Court. The Court is mindful that in employing both methods in the 9810A policy, Defendant has avoided having a payment floor as is the point of the permissive schedule (i.e. the amended PIP statute at F.S. 627.736(5)(a)5 includes payment of the submitted amount if less than 200% of Medicare) and also leaves in limbo whether a charge is or is not payable, resulting in balance billing and possible gratuitous payments and provider selection.
Lastly, the Court finds the Defendant’s reliance on OIR approval unavailing because the Court’s construed the policy for clarity and ambiguity in light of a reasonable interpretation.
