23 Fla. L. Weekly Supp. 783a
Online Reference: FLWSUPP 2307ADAMInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy stating that benefits shall be payable at lesser of 80% of actual charge or 80% of schedule of maximum charges contained in PIP statute, including 200% of Medicare Part B fee schedule, clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule — Policy language stating that insurer may use various sources of information to decide if medical expense is reasonable and necessary and caused by accident is nullity based on clear and unambiguous election of statutory fee schedule as method of reimbursement
WASSERMAN CHIROPRACTIC, INC. A/A/O EMMA ADAMS, Plaintiff, vs. MERCURY INDEMNITY COMPANY OF AMERICA, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 15 937 CONO 70. September 8, 2015. Honorable John Fry, Judge.
ORDER GRANTING DEFENDANT’SMOTION FOR SUMMARY JUDGMENT
Defendant, MERCURY INDEMNITY COMPANY OF AMERICA, moved for summary judgment to declare MERCURY was correct in limiting reimbursement of the Plaintiff’s charges in accordance with the fee schedules described in Fla. Stat. §627.736(5)(a)(1) and MERCURY’S policy of insurance. Thus, the issue presented to the Court was whether MERCURY’s policy gave the required notice to its Insured of Mercury’s election to apply the Medicare fee schedule methodology to limit reimbursements. Based on the analysis below, because MERCURY’S policy clearly and unambiguously states that it may apply the fee schedule to a medical provider’s bills, it gave the proper notice to its Insured.
STATEMENT OF RELEVANT FACTS
The pertinent parts of the applicable policy of insurance and the U-501 (1/2013) endorsement state:
PART II – PERSONAL INJURY PROTECTION (“PIP”)
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 the No Fault Law:
1. For emergency transport and treatment by providers licensed under Florida Statutes, Title 29, chapter 401, 200 percent of Medicare.
2. For emergency services and care provided by a hospital licensed under Florida Statutes, Title 29, chapter 395, 75 percent of the hospital’s usual and customary charges.
3. For emergency services and care as defined by Florida Statutes Title 29, s. 395.002(9) provided in a facility licensed under chapter 395 rendered by a physician or dentist, and related hospital inpatient services rendered by a physician or dentist, the usual and customary charges in the community.
4. For hospital inpatient services, other than emergency services and care, 200 percent of the Medicare Part A prospective payment applicable to the specific hospital providing the inpatient services.
5. For hospital outpatient services, other than emergency services and care, 200 percent of the Medicare Part A Ambulatory Payment Classification for the specific hospital providing the outpatient services.
6. For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B, except as follows: 200 percent of Medicare Part B, in the case of services, supplies, and care provided by ambulatory surgical centers and clinical laboratories, and 200 percent of the Durable Medical Equipment Prosthetics/Orthotics and Supplies fee schedule of Medicare Part B, in the case of durable medical equipment. 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 workers’ 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.
8. As authorized by the No-Fault Law, we may use various sources of information to decide if any medical expense is reasonable and necessary and caused by an accident. These sources include but are not limited to:
a. Exams by doctors we select, at our expense, as often as we reasonably request;
b. Review of medical records and test results by persons and services selected by us;
c. Computer programs and databases for the analysis of medical treatment and expenses; and
d. Published sources of medical expense information.
The pertinent parts of Fla. Stat. §627.736 (2013) state:
(1) REQUIRED BENEFITS.
Every insurance policy complying with the security requirements of s. 627.733 shall provide personal injury protection . . . of $10,000 . . . as follows:
(a) Medical Benefits. Eighty percent of all reasonable expenses . . .
* * *
(5) CHARGES FOR TREATMENT OF INJURED PERSONS.
(a) A physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section . . .In determining whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider . . . reimbursement levels in the community and various federal and state medical fee schedules . . . and other information relevant to the reasonableness of the reimbursement . . . .
1. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
* * *
f. For all other medical services, supplies, and care, 200 percent of the allowable amount under:
i. The participating physicians fee schedule of Medicare Part B, except as provided in sub-sub-subparagraphs (II) and (III).
ii. Medicare Part B, in the case of services, supplies, and care provided by ambulatory surgical centers and clinical laboratories.
iii. The Durable Medical Equipment Prosthetics/Orthotics and Supplies fee schedule of Medicare Part B, in the case of durable medical equipment.
However, if such services, supplies, or care is not reimbursable under Medicare Part B, as provided in this sub-subparagraph, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under 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 workers’ compensation is not required to be reimbursed by the insurer.
STANDARD OF REVIEW
Pursuant to Rule 1.510, Fla. R. Civ. P., where the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, establish no genuine issues of material fact as to Plaintiff’s allegation MERCURY has failed to pay Plaintiff’s loss without reasonable proof of not being responsible for said payment, MERCURY is entitled to summary judgment as a matter of law. See, Fla. R. Civ. P. 1.510. The granting of summary judgment is proper where there are no genuine issues of material fact and where the moving party is entitled to judgment as a matter of law. “The standard for reviewing the entry of summary judgment requires that a party moving must conclusively show the absence of any genuine issue of material fact.” Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985). Once the moving party on a motion for summary judgment meets its burden in demonstrating there are no genuine issues of material fact and is entitled to judgment as a matter of law the “party opposing the entry of summary judgment must prove the existence of genuine triable issues.” First North American Bank v. Hummel, 825 So.2d 502 (Fla. 2d DCA 2002) [27 Fla. L. Weekly D2010a].
ANALYSIS
MERCURY’S policy terms follow recent Florida decisions finding the fee schedule provisions of the No-Fault Law cannot not be applied absent a specific policy provision. In clear and unambiguous language, the MERCURY policy specifically outlines how it will pay a given medical bill.
The applicable policy of insurance in the instant case states unequivocally 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)(1). This can have only one meaning and places the Insured on notice of MERCURY’s methodology for reimbursement of medical bills. Additionally, the language contained within Section 8 of the PIP portion of the policy regarding MERCURY’s use of various sources of information to decide if any medical expense is reasonable and necessary and caused by an accident is tantamount to a legal nullity based on MERCURY’s clear and unambiguous election of its methodology for reimbursement of medical bills. Finally, Plaintiff’s opposition to Defendant’s Motion for Summary Judgment was meritorious.
CONCLUSION
The aforementioned law and the applicable policy of insurance allowed MERCURY to reimburse Plaintiff according to the parameters outlined within section 627.736(5)(a)(1). Accordingly, MERCURY’S Motion for Summary Judgment is granted.
