23 Fla. L. Weekly Supp. 487a
Online Reference: FLWSUPP 2305HARRInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy providing that insurer will pay 80% of reasonable expenses but also providing that amount payable “shall be subject to any and all limitations” authorized by PIP statute does not provide clear and unambiguous notice of intent to limit reimbursement to Medicare Part B fee schedule
SUMMIT RADIOLOGY LLC, a/a/o PATRICE HARRIS, Plaintiff, v. ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-011191 COCE 50. September 2, 2015. Honorable Peter B. Skolnik, Judge. Counsel: Andrew B. Davis-Henrichs and Emilio R. Stillo, South Florida Trial Lawyers, LLC, Davie, for Plaintiff. Douglas G. Brehm, for Defendant.
FINAL JUDGMENT IN FAVOR OF PLAINTIFF
THIS CAUSE, having come to be heard before the Court on Plaintiff’s Motion for Summary Judgment and Memorandum of Law on March 3, 2015, after reviewing the pleadings, the evidence, and argument of counsel, the Court makes the following findings:
At issue in this case is the sufficiency of the Defendant’s (hereinafter referred to as “Allstate”) policy language. Specifically, this matter only concerns whether, as asserted by the Plaintiff, the language in Allstate’s policy is unclear and ambiguous as to Allstate’s election to reimburse the Plaintiff pursuant to certain Medicare fee schedules provided for in F.S. §627.736(5)(a)(2). While not agreeing that the amounts charged were reasonable, Defendant will not require Plaintiff to prove the reasonableness of the Plaintiffs charge of $1,750.00 for medically necessary services.
The parties agree that on April 1, 2009, Patrice Harris was involved in a motor vehicle accident in which she sustained personal injuries. Allstate admits the Plaintiff has standing to bring this lawsuit. Following the motor vehicle accident, Allstate sent Patrice Harris a notice which included an application for “no-fault” benefits and a notice of Personal Injury Protection Benefits. The notice included a statement which says:
PIP pays 80 percent of medical benefits for all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, wheelchairs., crutches, slings, neck braces and splints. Medically necessary ambulance, hospital and nursing services are covered, and benefits also are paid for necessary remedial treatment and services recognized and permitted under the laws of the state for an injured person who relies solely upon spiritual means through prayer for healing because of religious beliefs.
On December 2, 2009, Plaintiff provided medical services for Patrice Harris. Such services were medically necessary. The services billed by the Plaintiff for the care was related to the injuries sustained by Patrice Harris in the motor vehicle accident on April 1, 2009. The Defendant issued a policy of insurance which provides personal injury protection coverage as described by F.S. §627.736 for the benefit of Patrice Harris. And there remains unpaid benefits of $415.58 which would have been payable had Allstate not applied the fee schedule as described by F.S. §627.736(5)(a)(2).
The language of Allstate’s policy provides that Allstate will pay as follows, as pertains to personal injury protection (PIP) coverage:
“Medical Expenses; Eighty percent of reasonable expenses for medically necessary medical, surgical, X-ray, dental and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services.”
The policy further states:
“Any amounts payable under this coverage shall be subject to any and all limitation, 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.”
Allstate contends that this latter provision is a clear and unambiguous election of the fee schedule limitations as its method for determining reasonable charges and that the only limitation authorized by § 627.736, as pertains to the bills in this case, is the Medicare and Workers Compensation fee schedules, and as a result, it is unambiguously electing to use the 5(a)(2) methodology as its payment method.
The Plaintiff contends that Allstate failed to clearly and unambiguously include this methodology in its policy, as required by Geico General Insurance Company v. Virtual Imaging Services, Inc. etc., 38 Fla. L. Weekly S517a (Fla. 2013), and as a result, Allstate is obligated to pay 80% of the “reasonable expenses”, billed by Plaintiff. If the Plaintiff’s interpretation is correct, Allstate would owe Plaintiff an additional sum towards the medical bills submitted.
For the reasons expressed by the Fourth District Court of Appeals, and previously by the Court on this issue and by various courts around the state, the Court finds that Allstate’s policy did not clearly and unambiguously notify the insured and any assignee of its intention to limit reimbursement for PIP benefits in accordance with F.S.§627.736(5)(a)(2). Orthopedic Specialists (a/a/o Kelli Serridge) v. Allstate Insurance Company, Case No.: 4D14-287-318 (Fla. 4th DCA August 19, 2015) [40 Fla. L. Weekly D1918a](Not final until disposition of timely filed motion for rehearing) citing Synergy Chiropractic & Wellness Center, Inc., (a/a/o Elodie Lindor) v. Allstate Prop. & Cas. Ins. Co., 22 Fla. L. Weekly Supp. 750a (Fla. Broward County, Cnty. Ct. (Lee, J.); Quantum Imaging Holdings LLC (a/a/o Rosalinda Hernandez) v. Allstate Prop. & Cas. Ins. Co., 22 Fla. L. Weekly Supp. 144a (Fla. Broward County, Cnty. Ct., 2014)(Lee, J.); Quantum Imaging Holdings LLC (a/a/o Wallace Boone) v. Allstate Prop. & Cas. Ins. Co., 22 Fla. L. Weekly Supp. 1083a (Fla. Broward County, Cnty. Ct., 2014)(Skolnik, J.); Quantum Imaging Holdings LLC (a/a/o Elda Alume) v. Allstate Prop. & Cas. Ins. Co., 21 Fla. L. Weekly Supp. 1070a (Fla. Broward County, Cnty. Ct., 2014)(Skolnik, J.); Quantum Imaging Holdings LLC (a/a/o Sean Chisholm) v. Allstate Fire & Cas. Ins. Co., 21 Fla. L. Weekly Supp. 831a (Fla. Broward County, Cnty. Ct., 2014)(Skolnik, J.); Quantum Imaging Holdings LLC (a/a/o Gabriel Arango) v. Allstate Prop. & Cas. Ins. Co., 22 Fla. L. Weekly Supp. 144a (Fla. Broward County, Cnty. Ct., 2014)(Skolnik, J.); Quantum Imaging Holdings, LLC (a/a/o Christine Madia) v. Allstate Fire and Cas. Ins. Co., 21 Fla. L. Weekly Supp. 823a (Fla. Broward County, Cnty. Ct. 2014)(Lee, J.); The Imaging Cntr. of West Palm Beach, LLC (a/a/o Susan Agnello) v. Allstate Prop. & Cas. Ins. Co., 21 Fla. L. Weekly Supp. 96a (Fla. Broward County, Cnty. Ct. 2013)(Lee, J.); MR Servs. I, Inc., d/b/a C&R Imaging of Hollywood (a/a/o Cristina Diaz) v. Allstate Indem. Co., 20 Fla. L. Weekly Supp. 1096a (Fla. Broward County, Cnty. Ct., 2013)(Lee, J.); MR Servs. I, Inc., d/b/a C&R Imaging of Hollywood (a/a/o Gabriel Fraga) v. Allstate Prop. and Cas. Ins. Co., 20 Fla. L. Weekly Supp. 1096b (Fla. Broward County, Cnty. Ct., 2013)(Lee, J.); MR Servs. I, Inc., d/b/a C&R Imaging of Hollywood (a/a/o Lucia R. Gomez) v. Allstate Fire and Cas. Ins. Co., 20 Fla. L. Weekly Supp. 1096c (Fla. Broward County, Cnty. Ct., 2013)(Lee, J.); Jeremy Gordon, D.C., (a/a/o Philomena Schwartz) v. Allstate Ins. Co., 20 Fla. L. Weekly Supp. 673a (Fla. Volusia County, Cnty. Ct., 2012)(Sanders Jr., J.); Roberto Rivera-Morales, M.D., (a/a/o Gloria Carolina Rincon) v. Allstate Prop. and Cas. Ins. Co., 20 Fla. L. Weekly Supp. 451b (Fla. Miami-Dade County, Cnty. Ct., 2012)(Simon, J.); Neal Clinic of Comprehensive Healthcare, P.L. (a/a/o Edward Hackett) v. Allstate Property and Cas. Ins. Co., 20 Fla. L. Weekly Supp. 150a (Fla. Escambia County, Cnty. Ct., 2012)(Kinsey, J.); Edge Family Chiropractic, P.A. d/b/a Edge Family Chiropractic (a/a/o Barbara Jones) v. Allstate Ins. Co., 20 Fla. L. Weekly Supp. 149c (Fla. Escambia County, Cnty. Ct., 2012)(Kinsey, J.).
Based on these findings, this Court concludes that Allstate’s policy fails to satisfy the Virtual requirements for a clear and unambiguous election of FS § 627.736(5)(a)(2)(a-f) methodology as its payment method. Accordingly, the policy at issue is construed against Allstate and Allstate is obligated to pay 80% of the “reasonable expenses.”
ORDERED AND ADJUDGED that the Plaintiff SUMMIT RADIOLOGY, LLC, a/a/o PATRICE HARRIS recover from the Defendant ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY the sum of $415.58, together with prejudgment interest in the amount of $101.78, for a total amount of $517.36 for all of which sums let execution issue.
The Plaintiff is entitled to recover the costs of this action and reasonable attorney’s fees under §627.428, Florida Statutes. This Court retains jurisdiction to determine the amounts of costs and attorney’s fees due Plaintiff.
