24 Fla. L. Weekly Supp. 861a
Online Reference: FLWSUPP 2410HARRInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Policy clearly and unambiguously permitted insurer to limit reimbursement by reference to schedule of maximum charges
ALL PARTNERS NETWORK, PLLC D/B/A GLOBAL NEURO & SPINE INSTITUTE a/a/o Donna Harrison, Plaintiff(s), v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 19th Judicial Circuit in and for Martin County. Case No.16-437-CC. September 2, 2016. Curtis L. Disque, Judge.ORDER GRANTING DEFENDANT’S MOTION FORSUMMARY JUDGMENT AS TO THE APPLICATIONOF STATUTORY FEE SCHEDULES AND DENYINGPLAINTIFF’S CROSS MOTION FOR PARTIALSUMMARY JUDGMENT
THIS MATTER, having come before this Court on August 12, 2016, for hearing of the Defendant’s Motion for Summary Judgment as to the Application of Statutory Fee Schedules, and the Plaintiff’s Cross Motion for Partial Summary Judgment, and the Court, having considered the arguments presented by counsel, having made a thorough review of the motions and the case file, having reviewed the relevant authorities; and being otherwise fully advised in the premises; hereby makes the following findings and reached the following legal conclusions:FACTS
The following facts are undisputed:
1. This is an action by a Medical Provider, under an assignment, to recover Personal Injury Protection benefits.
2. The claimant in this case was covered under State Farm policy number C15-7058-F01-59B, (State Farm Policy Form 9810A) and the parties agreed that Policy form 9810A was the relevant insurance policy contract at issue in this action.
3. Plaintiff billed Defendant for multiple services which were performed on dates of service spanning from January 28, 2015, through May 29, 2015.
4. The parties agree that the medical care at issue which was billed by Plaintiff was reasonable, related and necessary as it pertains to the January 2, 2015 motor vehicle accident.
5. The sole issue agreed upon by the parties is for the Courts determination as to whether State Farm properly elected to limit reimbursement under its policy form 9810A as set forth and authorized in F.S. 627.736(5)(a).Analysis
Fla. Stat. §627.736(5)(a) specifies as follows:
(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 for the services and supplies rendered . . . . However, such a charge may not exceed the amount the person or institution customarily charges for like services or supplies. 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 involved in the dispute, reimbursement levels in the community and various federal and state medical fee schedules applicable to motor vehicle and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.
1. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
a. For emergency transport and treatment by providers licensed under chapter 401, 200 percent of Medicare.
b. For emergency services and care provided by a hospital licensed under chapter 395, 75 percent of the hospital’s usual and customary charges.
c. For emergency services and care as defined by s. 395.002 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.
d. 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.
e. 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.
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.
In Kingsway Amigo Ins. Co. v. Ocean Health, Inc. 63 So.3d 63 (Fla. 4th DCA, 2011) [36 Fla. L. Weekly D1062a], a PIP suit was filed against the insurer for payment of chiropractic bills for treatment of the insured at 80% of 200% of the Medicare Part B fee schedule. The County Court granted summary judgment for the chiropractor’s office, and certified the issue as one of great public importance. On appeal, the 4th District Court held that statute allowing an insurer to limit reimbursement according to federal and state medical fee schedules did not allow an insurer whose policy did not mention the limitation to limit its reimbursement. The policy of insurance for Kingsway Amigo contained applicable language as follows:
The Company will pay in accordance with the Florida Motor Vehicle No Fault Law, as amended, to or for the benefit of the Insured person:
1. 80% of medical expenses:
. . . . . . .
Medical expenses means those expenses that are required to be Reimbursed pursuant to Florida Motor Vehicle No Fault Law, as Amended, and that are reasonable expenses for medically necessary. . . . . services.
Subsequent to the 4th DCA’s ruling, the very same issue was examined by the 3rd district court of appeals in the case of Geico Indem. Co. v. Virtual Imaging Services, Inc., 79 So.3d 55 (Fla. 3rd DCA, 2011) [36 Fla. L. Weekly D2597a] (hereinafter “Virtual Imaging I”). The holding of the 3rd DCA in Virtual Imaging I was essentially identical to that of the 4th DCA in Kingsway Amigo. The Court stated as follows:
“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. Ambiguities in insurance contracts are resolved in favor of the insured. See, e.g. State Farm Mutual Auto Ins. Co. v. Menendez, 70 So.3d 566, 570 (Fla. 2011). Therefore, even if Geico were correct that section 627.736(5)(a)(2) is incorporated into policies, the resulting ambiguity regarding which method Geico would use in determining a reimbursement amount supports the conclusion that Geico should have reimbursed Virtual Imaging I for the greatest amount possible within the language of the policies.”
The applicable policy language in Virtual Imaging I “the Company [Geico] will pay . . . . 80% of medical expenses,” defining “medical expenses” as “reasonable expenses for necessary medical, surgical, [and] X-ray. . . services.”
The decision was later validated by both the third district Court of Appeals as well as the Florida Supreme Court. In Geico Gen. Ins. Co. v. Virtual Imaging Services Inc., 90 So.3d 321 (Fla. 3d DCA 2012) (hereinafter “Virtual Imaging II”) [37 Fla. L. Weekly D985b] , an MRI provider filed a PIP suit for outstanding balances due and owing in the County Court in Miami-Dade County. The County Court entered summary judgment in favor of the provider. In doing so, the County Court certified the following question Fla. State §34.017 (2011):
MAY THE INSURER LIMIT PROVIDER REIMBURSEMENT TO 80 % OF THE SCHEDULE OF MAXIMUM CHARGES DESCRIBED IN F.S. 627.736(5)(a) IF ITS POLICY DOES NOT MAKE A SPECIFIC ELECTION TO DO SO?
On appeal, the 3rd DCA in Virtual Imaging II essentially affirmed the lower court ruling, and in doing so, adopted its prior reasoning from Virtual Imaging I, and certified the issue as a question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v). The certified question was stated as follows:
WITH RESPECT TO PIP POLICIES ISSUED AFTER JANUARY 1, 2008, MAY THE INSURER COMPUTE PROVIDER REIMBURSEMENTS BASED ON THE FEE SCHEDULES IDENTIFIED IN SECTION 627.736(5)(a), FLORIDA STATUTES, EVEN IF THE POLICY DOES NOT CONTAIN A PROVISION SPECIFICALLY ELECTING THOSE SCHEDULES RATHER THAN “REASONABLE MEDICAL EXPENSES” COVERAGE BASED ON SECTION 627.736(1)(a)?
This certified question was ultimately addressed by the Florida Supreme Court in Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc. 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a] (hereinafter “Virtual Imaging III”). The Supreme Court in Virtual Imaging III held that insurer was required to give notice to its insured before using the Medicare fee schedules to limit reimbursements for medical services. “ . . . we hold that under the 2008 amendments to the PIP statute, a PIP insurer cannot take advantage of the Medicare fee schedules to limit reimbursements without notifying its insured by electing those fee schedules in its policy.” Id.
The language of an insurance policy is ambiguous only when it is susceptible to more than one interpretation. See State Farm Fire & Cas. Co. v. Metropolitan Dade County, 639 So.2d 63, 65 (Fla. 3d DCA 1994). Ambiguous policy provisions are interpreted liberally in favor of the insured and strictly against the drafter who prepared the policy. Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla. 2000) [25 Fla. L. Weekly S211a]. However, “the rule of liberal construction in favor of the insured applies only when a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of construction,” and the fact that a policy fails to define an operative term does not, but itself, create an ambiguity. See Gen. Star Indem. Co. v. W. Fla. Vill. Inn, Inc., 874 So.2d 26, 30 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D1070b]. Insurance contracts, like other contracts, “should receive a construction that is reasonable, practical, sensible, and just”. Id. at 29.
In the instant case, when making payment, Defendant STATE FARM relied upon the language of the Policy, which provides as follows:
(Policy Form 9810A at 16):
We will limit payment of Medical Expenses described in the Insuring Agreement of this policy’s No-Fault Coverage to 80% Of a properly billed and documented reasonable charge, but in No event will we pay more than 80% of the following No-Fault Act “schedule of maximum charges” including the use of Medicare Coding policies and payment methodologies of the federal Centers For Medicare and Medicaid Services, including applicable modifiers:
a. For emergency transport and treatment by providers licensed under chapter 401, Florida Statute, 200 percent of Medicare.
b. For emergency services and care provided by a hospital licensed under chapter 395, Florida Statutes, 75 percent of the hospital’s usual and customary charges.
c. For emergency services and care as defined by §395.002, Florida Statutes, provided in a facility licensed under chapter 395, Florida Statutes, 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.
d. 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.
e. 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.
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.
CONCLUSIONS
The Court finds that, consistent with this Policy language, Defendant State Farm properly limited reimbursement to Plaintiff based upon the application of the schedule of maximum charges set forth in Fla. Stat. §627.736(5). The Court distinguishes the language of the Policy in this Action from that of the Allstate insurance policy considered by the Fourth District Court of Appeal in Orthopedic Specialists v. Allstate Insurance Company, 40 Fla. L. Weekly D1918a (Fla. 4th DCA, August 19, 2015), and hereby finds that the Policy is clear and unambiguous and permits State Farm to limit reimbursement by reference to the schedule of maximum charges as a matter of law.
ORDERED AND ADJUDGED the Defendant’s Motion for Partial Summary Judgment as to the application of Statutory Fee Schedules is GRANTED and the Plaintiff’s Cross Motion for Partial Summary Judgment is DENIED.
This Court retains jurisdiction of this case to enforce post-judgment motions and to enforce this Judgment.
