23 Fla. L. Weekly Supp. 62a
Online Reference: FLWSUPP 2301BALDInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy endorsement that states that insurer will pay benefits at 80% of maximum charges set forth by PIP law and 80% of other reasonable expenses clearly and unambiguously elects to limit reimbursement for services covered by statutory fee schedule to amount established by that fee schedule
UNIQUE CHIROPRACTIC, LLC, d/b/a FLORIDA SPINAL & INJURY, a/a/o TERRY BALDWIN, Plaintiff, vs. SOUTHERN-OWNERS INSURANCE COMPANY, Defendant. County Court, 10th Judicial Circuit in and for Polk County. Case No. 2013SC-003005. March 19, 2015. Honorable Susan B. Flood, Judge. Counsel: Stephen D. Deitsch, Deitsch & Wright, P.A., Lake Worth, for Plaintiff. Birdy V. Vanasupa, Vernis & Bowling of the Gulf Coast, P.A., Tampa, for Defendant.
ORDER GRANTING DEFENDANT’SMOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE, having come before the Court on Defendant, SOUTHERN-OWNERS INSURANCE COMPANY’S (hereinafter “Southern-Owners”), Motion for Final Summary Judgment and Supporting Memorandum of Law, on Friday, March 13, 2015, beginning at 3:30 p.m., and the Court having reviewed said Motion and Supporting Memorandum and supporting attachments thereto, and being otherwise fully advised on the premises, the Court FINDS, ORDERS, and ADJUDGES as follows:FACTUAL BACKGROUND
Plaintiff, UNIQUE CHIROPRACTIC, LLC, d/b/a Florida Spinal & Injury, filed suit against Southern-Owners for additional Personal Injury Protection (i.e. PIP) benefits on behalf of Southern-Owners’ Insured, Mr. Terry Baldwin. Plaintiff contends that the PIP Endorsement of the automobile insurance policy issued by Southern-Owners to Mr. Baldwin is ambiguous and, therefore, failed to properly elect payment of PIP benefits at fee schedule. As such, Plaintiff further contends that Southern-Owners should have paid 80% of the total amount that it charged Southern-Owners for various treatments rendered to Mr. Baldwin. It is undisputed that the treatments Plaintiff rendered to Mr. Baldwin were in connection with a motor vehicle accident that occurred on February 8, 2013 (hereinafter “subject accident”). It is also undisputed that the subject accident occurred.
The automobile insurance policy in question (hereinafter “subject policy”) was in full force and effect at the time of the subject accident. It is undisputed that the following were provided to Mr. Baldwin at the time the subject policy was renewed on or around July 2, 2012:
1. the subject policy;
2. the applicable declarations page;
3. all applicable endorsements, including the PIP Endorsement, identified by Endorsement Number 79255 (01-11) (hereinafter “01-11 Endorsement” or “PIP Endorsement”), which gave Mr. Baldwin notice that Southern-Owners would pay PIP benefits at 80% of the fee schedule set forth in § 627.736(a)1 of Florida’s No-Fault Statute, 2012; and
4. all applicable notices, including the Policyholder Notice, identified by Notice Number 69121 (5-12) (hereinafter “5-12 Notice”), which also gave Mr. Baldwin notice that Southern-Owners would pay PIP benefits at 80% of the fee schedule set forth in § 627.736(a)1 of Florida’s No-Fault Statute, 2012.
It is also undisputed that the subject policy, as evidenced by its Declarations Page, provided $10,000.00 in PIP benefits, but did not provide Medical Payments Coverage (i.e. MedPay). It is further undisputed that the 01-11 Endorsement provided, in relevant part, as follows:
2. If Personal Injury Protection is shown in the Declarations, the benefits shall consist of:
a. Medical Benefits, meaning:
(1) 80% of the schedule of maximum charges set forth by Florida Motor Vehicle No-Fault Law for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices and medically necessary ambulance, hospital, and nursing services; and
(2) 80% of all other reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices and medically necessary ambulance, hospital, and nursing services NOTset forth in the schedule of maximum charges by Florida Motor Vehicle No-Fault Law.
(emphasis added). Additionally, it is also undisputed that: (1) Southern-Owners paid Plaintiff’s charges at 80% of 200% of the participating physician’s fee schedule under Medicare Part B for services rendered by Plaintiff to Mr. Baldwin; (2) none of the CPT Codes charged by Plaintiff were denied; and (3) every single CPT Code charged by Plaintiff was covered under the Medicare Part B fee schedule. Southern-Owners contends that the 01-11 Endorsement properly elected payment of Mr. Baldwin’s PIP benefits at fee schedule and that notice of such election was provided to Mr. Baldwin at the time the subject policy was renewed.
DISCUSSION AND CONCLUSIONS OF LAW
Summary Judgment Standard
The burden of proving entitlement to Summary Judgment is on the movant, regardless of who has the burden at trial. Nowicki v. Cessna Aircraft Co., 69 So.3d 406, 409 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D2082a] (internal citation omitted). Summary Judgment is proper “only if there is no genuine issue of material fact, viewing every possible inference in favor of the party against whom summary judgment has been entered.” Poe v. IMC Phosphates MP, Inc., 885 So.2d 397, 400 (Fla. 2nd DCA 2004) [29 Fla. L. Weekly D2304a]; see also Fla. R. Civ. P. 1.510(c).
Florida’s Rules regarding Insurance Policy Interpretation
Policy Interpretation
Contract interpretation is a question of law for courts to decide. See, e.g., Penzer v. Transportation Ins. Co., 29 So.3d 1000, 1005 (Fla. 2010) [35 Fla. L. Weekly S73a]. In so interpreting, Florida courts construe insurance contracts according to their plain meaning, with any ambiguities construed against the insurer and in favor of coverage. Penzer at 1005. Florida courts, however, will not interpret an insurance contract so as to provide more coverage, even where the contract contains provisions that tend to limit liability, if the contract’s language is clear and unambiguous on its face. See, e.g., State Farm Fire and Cas. Co. v. Metropolitan Dade County, et al., 639 So.2d 63, 65 (Fla. 3rd DCA 1994); see also Penzer 29 So.3d at 1005 (stating that: (1) ambiguity is present where the relevant contract language is susceptible to more than one reasonable interpretation, with one interpretation providing coverage and another limiting coverage; (2) an insurance contract must actually be ambiguous, in order to find in the insured’s favor on the basis of ambiguity; (3) an insurance contract provision is not ambiguous simply because it is complex or requires analysis; and (4) an insurance contract should be enforced according to its terms if its provisions are clear and unambiguous) (internal citations omitted).
Inclusion of Applicable Statutes into Insurance Contracts
Parties to an insurance contract are presumed to have entered into the contract with reference to a statute, when the contract is entered into on a matter that is “surrounded” by statutory limitations and requirements, thereby making the statutory provision a part of the contract. See, e.g., Grant v. State Farm Fire and Cas. Co., 638 So.2d 936, 938 (Fla. 1994) (internal citations omitted). Furthermore, the “statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.” Menendez v. Progressive Exp. Ins. Co., 35 So.3d 873, 876 (Fla. 2010) [35 Fla. L. Weekly S81a].Southern-Owners’ Payment of PIPBenefits pursuant Fee Schedule was Proper
Based on Menendez and on the fact that the subject policy was renewed in 2012, the Court finds that the 2012 version of Florida’s No-Fault Statute, § 627.736, applies in the instant matter. Under the 2012 version, a PIP carrier may not pay PIP benefits at fee schedule unless the carrier’s policy elects such payment and notice of such election is provided to the insured. § 627.736(a)1 and 5, Fla. Stat. (2012).
In reviewing the 01-11 Endorsement to the subject policy, the Court finds that the 01-11 Endorsement clearly and unambiguously elected payment under the fee schedule set forth by Florida’s No-Fault Statute, 2012. Specifically, the Court finds that the language in subsections (1) and (2) of the relevant portion of the 01-11 Endorsement, as quoted above, are clear and unambiguous. Simply put, if any of the services provided by Plaintiff are covered by the schedule of maximum charges set forth by Florida’s No-Fault Statute, then Southern-Owners will pay 80% of said schedule. If, on the other hand, any of the services provided by Plaintiff are NOT covered by the schedule of maximum charges set forth by Florida’s No-Fault Statute, then Southern-Owners will pay 80% of reasonable charges. There is no other way of interpreting the applicable provision in the 01-11 Endorsement.
The Court further finds that the relevant portion of the 01-11 Endorsement provided Mr. Baldwin with notice of Southern-Owners’ election to pay his PIP benefits at 80% of the fee schedule set forth by Florida’s No-Fault Statute. Further, the 5-12 Notice also provided additional notice of such election. Both the 01-11 Endorsement and the 5-12 Notice were provided to Mr. Baldwin at the time the subject policy was renewed and, therefore, Southern-Owners provided proper notice of its election to pay PIP benefits at fee schedule.
Additionally, the schedule of maximum charges set forth by Florida’s No-Fault Statute is deemed part of the subject policy. Such schedule includes the participating physician’s fee schedule under Medicare Part B, the fee schedule that applies in this matter. As noted in Affidavit of Ms. Kalyn Jones, attached as Exhibit C to Southern-Owners’ Supporting Memorandum of Law, every CPT Code billed by Plaintiff in this matter was covered by, and paid under, the participating physician’s fee schedule under Medicare Part B. None of the CPT Codes charged by Plaintiff were denied. The Court, therefore, finds that Southern-Owners met its contractual obligation in this matter by paying Plaintiff’s charges at 80% of 200% of the participating physicians’ fee schedule under Medicare Part B.
Based on the foregoing, it ORDERED AND ADJUDGED that Defendant, SOUTHERN-OWNERS INSURANCE COMPANY’s, Motion for Final Summary Judgment is hereby GRANTED. Final judgment is entered in Defendant’s favor and against Plaintiff, with Plaintiff taking nothing in this action and Defendant going hence without day.
