23 Fla. L. Weekly Supp. 1055a

Online Reference: FLWSUPP 2310MUSUInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy that provides that insurer will pay lesser of 80% of actual charge or 80% of schedule of maximum charges contained in section 627.736(5)(a)2 clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule

V&T INVESTMENT PARTNERS, LLC., d/b/a MEDVIEW IMAGING, a/a/o ALVIS MUSUMECI, Plaintiff, v. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2013-SC-9997-O. January 13, 2016. Jeanette D. Bigney, Judge. Counsel: Earl Higgs, Winter Park, for Plaintiff. Matthew Corker, Conroy Simberg, Orlando, for Defendant.

ORDER GRANTING DEFENDANT’SMOTION FOR SUMMARY JUDGMENTAND DENYING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT

THIS MATTER having come before this Court on September 21, 2015, on Defendant’s Motion for Final Summary Judgment and Plaintiff’s Motion for Final Summary, and the Court having heard the arguments of counsel and being otherwise fully advised in the premises, the Court finds,FACTS

Alvis Musumeci (“Musumeci”) was involved in an automobile accident on July 18, 2012, and he sought medical treatment. Part of his treatment included medical imaging services from the Plaintiff, Medview Imaging (“Medview”), on September 11, 2012. At the time of the accident Musumeci was insured by the Defendant, Mercury Insurance Company, and he assigned his benefits, or payment, to Medview.

Medview timely billed Defendant for a MRI of the cervical spine, CPT Code 72141, the amount of $1250.00. The Defendant made timely payment of $1006.02 to the Plaintiff and an Explanation of Benefits (“EOB”) was included. The EOB stated the “amount paid was based upon the schedule of maximum charges set forth in Florida Statute 627.736(5)”. Additionally, the Florida No-Fault (“PIP”) provisions state, in pertinent part (Policy Form FL U-85 11/2011), as follows:

PART II — PERSONAL INJURY PROTECTION —

COVERAGE P is deleted, and replaced by the provisions set forth in this endorsement.

PART II — PERSONAL INJURY PROTECTION (“PIP”) COVERAGE P

. . . . . .

5. Medical Benefits shall be payable at the lesser of:

a. 80% of the actual charge, or

b. 80% of the following schedule of maximum charges contained in Florida Statute § 627.736(5)(a)2:

. . . .

6. For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B. However, if such services, supplies, or care is not reimbursable under Medicare Part B, we may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under Florida Statutes Title 31, s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or worker’s compensation will not be reimbursed.

7. For purposes of subparagraph 5(b)(6), if a Current Procedural Terminology (CPT) code is not reimbursable under the participating physicians schedule of Medicare Part B at the time the services, supplies or care was rendered, we will limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under Florida Statutes Title 31, s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided.

Plaintiff asserts that the methods for calculating the reasonableness of the charge are separate and distinct, and an insurer must clearly and unambiguously choose which payment methodology it will use to calculate the reasonableness of the charge. Plaintiff argued that Defendant’s policy incorporated both methods of payment but failed to indicate to the insured which methodology it utilized to determine the amount reimbursed. As such they are entitled to Judgment as a matter of law.

Defendant asserts that the terms and conditions of the policy at issue in this action were unambiguous and must be applied as written, and if they are read as written, Defendant is entitled to a Judgment as a matter of law.

The facts support the Defendant paid 80 % of the 200% of the Medicare Part B fee schedule for the CPT Code 72141. The Defendant stipulated that the reasonableness of the Plaintiff’s charge was not an issue.

ANALYSIS AND LAW

This is a breach of contract action, it is beyond dispute that the Court must review the terms and conditions of the insured’s policy to determine whether there has been a breach. 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]; Graber v. Clarendon Nat’l Ins. Co., 819 So. 2d 840, 842 (Fla. 4th DCA 2002) [27 Fla. L. Weekly D1158a]. In construing an insurance policy, courts should read the policy as a whole, endeavoring to give every provision its full meaning and operative effect.¹ Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000) [25 Fla. L. Weekly S211a].

In Geico General Ins. Co. v. Virtual Imaging Services., Inc., __ So. 3d __, 2013 WL 3332385 (Fla. 2013) [38 Fla. L. Weekly S517a] (emphasis added), the court stated: “We conclude that the insurer was required to give notice to its insured by electing the permissive Medicare fee schedules in its policy before taking advantage of the Medicare fee schedule methodology to limit reimbursements.” Indeed, the court determined that the prior version of the PIP statute gave an insurer a choice between two different payment methodology options: (1) payment of 80% of “reasonable” expenses; or (2) payment of 80% of “200 percent of the allowable amount under the participating physicians schedule of Medicare Part B.” Id. at *7; see also Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So. 3d 63, 67 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a]. This case establishes the policy language controls the method of payment.

The Court also considered GEICO Indem. Co. v. Virtual Imaging Services, Inc., 79 So. 3d 55 (Fla. 3d DCA 2012) [38 Fla. L. Weekly S517a] [“Virtual II”]. In Virtual II the Court found that GEICO’s policy language was ambiguous and the GEIC should not be permitted to use the prior version of the schedule of maximum charges to limit payment. [E]ven if the logical equivalency of the two methods were established, the permissive language of section 627.736(5)(a)(2) itself creates ambiguity. A provision indicating that an insurer may limit reimbursements leaves unclear whether this option will be exercised, and therefore provides no indication to policyholders as to a crucial aspect of their policies: the amount the insurer will pay for necessary medical services. A policy indicating that an insurer may distribute reimbursements according to one method without clarifying alternative methods or identifying the factors to be considered in selecting among methods is ambiguous. Id. at 58.

The Defendant’s policy language uses the schedule of maximum charges. The policy at issue in this matter differs from the language in Virtual Imaging and Virtual II, and the insured is on notice of the payment methodology. The Defendant’s policy complies with the requirements of the PIP Statute and with the applicable case law: The policy language puts the insured and the assignee on notice that the schedule of maximum charges will serve as an upper limit for such calculations. The Defendant paid amount in Fla. Stat. § 627.736(5). And, therefore, Mercury is entitled to judgment as a matter of law

IT IS THEREFORE ORDERED AND ADJUDGED, as follows:

1. The Defendant’s Motion for Summary Judgment is GRANTED.

2. The Plaintiff’s Motion for Summary Judgment is DENIED.

3. The Court reserves jurisdiction to award attorneys’ fees and costs.

__________________

¹[Editor’s Note: Text for the footnote was not included in courts order report]