24 Fla. L. Weekly Supp. 739a

Online Reference: FLWSUPP 2409MOREInsurance — Personal injury protection — Deductible — PIP insurer improperly applied statutory fee schedule to reduce bills before applying those bills to deductible — Pursuant to both PIP statute and policy terms, fee schedule may only be applied to bills for which benefits are actually paid — Question certified: Pursuant to Fla. Stat. §627.739, is an insurer required to apply the deductible to 100% of an insured’s expenses and losses prior to applying any permissive fee schedule payment limitation found in §627.736(5)(a)(1), Fla. Stat. (2013)?

DAVID A. BLUM, M.D., P.A., (a/a/o Vanessa Moreno), Plaintiff, vs. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-12198 CONO (70). September 12, 2016. John D. Fry, Judge. Counsel: Thomas J. Wenzel, Cindy A. Goldstein, P.A., Coral Springs, for Plaintiff. Kevin P. Sincerbox, Progressive PIP House Counsel, Fort Lauderdale, for Defendant.

AMENDED ORDER GRANTING PLAINTIFF FINALSUMMARY JUDGMENT AND CERTIFICATIONTO THE FOURTH DISTRICT COURT OF APPEALAS A MATTER OF GREAT PUBLIC IMPORTANCE

[Appeal pending (Fla. 4DCA, Case No. 4d16-4311.]

THIS CAUSE having come before the Court on the parties’ cross motions for summary judgment, and the Court having reviewed the motions, the exhibits, the Court file, relevant legal authorities; the Court having heard oral arguments; and the Court otherwise being advised in the premises, the Court hereby GRANTS Plaintiff’s motions and DENIES Defendant’s motion for the reasons described herein. Additionally, pursuant to Fla. R. App. P. 1.960, this Court hereby certifies this case to the Fourth District Court of Appeal as a matter of great public importance.

On September 24, 2013, Vanessa Moreno (“the injured insured”) was injured in a motor vehicle accident. She was covered by a policy of insurance issued by Defendant that had a limit of exactly $10,000 in No-Fault (“PIP”) benefits with an elected $1,000 deductible. Solely for purposes of this motion, Defendant’s election of the fee schedules as a reimbursement methodology was not challenged by Plaintiff. Following the motor vehicle accident, the injured insured treated at various medical providers.

The first of the injured insured’s bills received by Defendant were submitted by the Plaintiff. For date of service September 30, 2013, Plaintiff billed its reasonable, usual and customary charges amounting to a total of $1362. Defendant did not apply this amount to the deductible. Instead, Defendant reduced the Plaintiff’s billed charges to $878.98¹, applied the deductible to the reduced amount, and did not issue a reimbursement to Plaintiff. According to Defendant’s methodology, notwithstanding the fact that the patient incurred $1362 in reasonable medical bills, the patient’s $1000 deductible remained unsatisfied with an additional $121.02 of deductible remaining (this amount was applied to subsequent providers’ bills according to the same methodology). The Court finds the foregoing facts were undisputed.

The dispute in this case concerns a question of whether an insurer is required to apply the deductible to 100% of an insured’s expenses and losses prior to applying any permissive fee schedule payment limitation found in §627.736(5)(a)1, Fla. Stat. (2013). This Court, in a prior case involving a different insurer, found that it was inappropriate under both the applicable statutes and the insurance policy at issue for that insurer to reduce bills to the fee schedule rates prior to applying the deductible to said bills. See Care Wellness Center, LLC (a/a/o Virginia Bardon-Diaz) v. State Farm Mut. Auto. Ins. Co., FLWSUPP 2309BARD, 14-07576 CONO (70) [23 Fla. L. Weekly Supp. 985a] (Fla. Broward Cty. Ct. 2016) . In another case, this Court ruled that this methodology is not statutorily authorized when it conducted a pure examination of the statutory language. See C&R Healthcare, LLC (a/a/o Yonel Raphael) v. Security Nat’l Ins. Co., CONO 14-005982 (Fla. Broward Cty. Ct. 2016). The Court also ruled against an insurer utilizing this methodology in two cases that focused primarily on contractual language. See Inline Chiropractic Group, Inc. (a/a/o Millward, Geoffrey) v. GEICO, 14-011297 CONO (72) (Fla. Broward Ct. Ct. 2016) and Inline Chiropractic Group, Inc. (a/a/o Stroud, Jamie) v. GEICO, 14-012586 CONO (72) (Fla. Broward Ct. Ct. 2016).

While this Court is well-versed on this issue, the Defendant was afforded every opportunity to distinguish its policy language, to explain how its policy could harmonize with the requirements of the applicable statutes, and to explain why the statutes should be interpreted to allow application of the deductible according to the methodology advanced by Defendant. However, the Court finds that while Defendant’s policy is distinguishable from those examined in the aforementioned cases (Defendant’s policy is comparatively well-written), the policy remains deficient or ambiguous in several key areas that will be described, infra. These deficiencies make it clear that, upon a pure contractual examination, Defendant cannot utilize its “reduce-then-apply” methodology. Additionally, notwithstanding the Court’s findings concerning Defendant’s policy, the Court remains convinced that the applicable statutes do not permit Defendant’s methodology. Accordingly, the Court finds that the deductible was fully satisfied at exactly $1000 of billed medical expenses and the Defendant was required to partially reimburse Plaintiff after satisfaction of the patient’s $1000 deductible.

I. The Deductible Issue

a. The Statutes

In revisiting arguments over the relevant statutes, the Court is not moved to change its opinion detailed in Care Wellness Center, LLC (a/a/o Virginia Bardon-Diaz) v. State Farm Mut. Auto. Ins. Co., FLWSUPP 2309BARD, 14-07576 CONO (70) (Fla. Broward Cty. Ct. 2016)) [23 Fla. L. Weekly Supp. 985a] and thus, finds as follows:

This Court is required to enforce the plain meaning of an unambiguous statute. See Shelby Mut. Ins. Co. v. Smith, 556 So. 2d 393 (Fla. 1990). The Court finds the relevant statutory provisions unambiguous. The crucial terms are defined within the statute. The court cannot find ambiguities within the statutory definitions as the statutes utilize words in conformity with dictionary definitions.

The Court begins its analysis with the mandated methodology for applying a medical provider’s bills to a deductible which is provided by the legislature in §627.739(2), Fla. Stat. (2013) (the “Deductible Statute”). The statute states, in pertinent part:

The deductible amount must be applied to 100 percent of the expenses and losses described in s. 627.736. After the deductible is met, each insured is eligible to receive up to $10,000 in total benefits described in s. 627.736(1). (Emphasis Added).

This section leaves no room for an insurer’s discretion. Defendant’s position rests on a misinterpretation of several terms. Defendant inappropriately conflates the meaning of the terms “expenses” and “losses” with the term “benefits”. These terms possess specific meanings within the No-Fault statutory scheme. “Expenses” are bills “for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices and medically necessary ambulance, hospital, and nursing services”. See §627.736(1)(a), Fla. Stat. This definition comes from the No-Fault statute and is in harmony with the dictionary definition of this term. See Black’s Law Dictionary (which defines the term “Medical Expense”, in pertinent part, as “[i]n civil litigation, any one of many possible medical costs that the plaintiff has sustained. . .including charges for visits to physician’s offices, medical procedures, hospital bills, medicine. . .” [Emphasis Added]). “Losses” pertain to lost wages and are described in §627.736(1)(b) but appear to be inapplicable to the case sub judice. “Benefits”, as defined in both the statute and the dictionary, are amounts for which the insurer is liable for payment. See also United States Sec. Ins. Co. v. Silva, 693 So.2d 593 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D507a] (“. . .the word ‘benefits’ as used in the statute, and in the insurance contract herein, means payments, and not medical treatment. . .”). Similarly, the Court finds that the No-Fault statute clearly states that fee schedule reductions only come into play when the insurer is actually paying a provider’s bills and not when an insurer is merely shifting the burden to pay to an insured under the insured’s elected deductible. The statute uses the specific language that “[t]he insurer may limit reimbursement”. §627.736(5)(a)1, Fla. Stat. (2013). There is no statutory language that would expand the role of the fee schedules outside of the occurrence of an insurer actually reimbursing a medical bill. In this case, it is indisputable that the Defendant did not reimburse the bills in question and accordingly, the Court finds that Defendant’s methodology of reduce-then-apply was inappropriate.

Plaintiff’s interpretation also harmonizes with the plain meaning of §627.736(5)(a)4., Fla. Stat (2013). This subsection creates a balance billing limitation on providers when an insurance policy elects the fee schedule reimbursement methodology. However, the legislature specifically excluded coinsurance amounts and amounts outside of maximum policy limits from fee schedule reductions. Some courts have found the deductible amount is part of “coinsurance”. However, this Court finds that bills that are applied to the deductible do not fall within the $10,000 policy benefits. Interestingly, based on documents submitted by the Defendant, the Defendant appears to have considered the deductible to be, in certain instances, coinsurance and at other times found it to be outside of the policy limits. Whether the deductible is considered coinsurance or outside of the maximum policy limits, the Court finds that only bills that fall within the $10,000 of benefits (the bills or charges that are actually paid by an insurer) may be reduced when an insurance policy clearly and unambiguously elects the fee schedule methodology to the exclusion of the “fact based” methodology.

Even if this Court found ambiguity somewhere in these statutes, such an ambiguity would allow the Court to consider factors that would nevertheless resolve this issue in Plaintiff’s favor. Among the many tools a court may utilize in interpreting ambiguous legislation, a court may consider the history of legislative changes. See, e.g., League of Women Voters of Fla. v. Detzner, 172 So.3d 363 (Fla. 2015) [40 Fla. L. Weekly S432a]. In 2003, the Legislature amended the deductible statute by eliminating the $2,000 deductible, ensuring the full $10,000 in benefits was available to insureds, and modifying the calculation methodology governing bills being applied to the deductible from “benefits otherwise due” to “100% of expenses and losses”. The former statute’s “benefits otherwise due” methodology allowed insurers to reduce bills prior to applying the bills to the deductible. The Court finds that the 2003 amendments were intended to reduce the threshold for an insurer’s responsibility and provide insureds with the opportunity to utilize the full policy. Further, the shift from focusing on “benefits otherwise due” to “expenses and losses” tilted the scales of balance in deductible issues in favor of the insured as the net effect of the statutory modification was to allow an insured to satisfy the deductible more rapidly. The removal of the $2,000 deductible option further evidences the legislature’s concern that the bar was set too high for an insured to enjoy the benefits of the insurance policy. The Court finds that Defendant’s position would require ignoring these legislative changes and would amount to a reversion to the pre-2003 deductible statute. Moreover, while the legislature specifically eliminated deductibles greater than $1,000, Defendant’s position in this case would require this Court to ratify an interpretation that would permit an insurer to force an insured to shoulder a deductible burden in excess of the limits imposed by the legislature.

Defendant also argued that it would be absurd to interpret the statutes in the manner advanced by Plaintiff due to the fact that varying levels of compensation would result depending on the combination of submitted charges by a provider and due to the fact that such an interpretation would lead to mathematical computations that would be more difficult than under the theory advanced by Defendant. However, this scenario described by Defendant does not render absurd Plaintiff’s position on the correct interpretation of the plain language of the statutes. Plaintiff identified other reimbursement methodologies under the No-Fault law that similarly result in difficult mathematical calculation issues — some of which even result in varying levels of reimbursements depending on the combination of submitted charges for services. While there may exist a more simple way to process insurance claims than that allowed for by the relevant laws, this Court must apply the plain language of the statutes. Defendant’s argument for a simplified No-Fault scheme would be more appropriately directed to the legislature.

The Court finds that Plaintiff’s interpretation creates a consistent whole, gives full effect to all terms of both statutes, and does not treat key phrases of the statute as mere surplusage. See Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452 (Fla. 1992). As such, the Court finds that Defendant was required by §627.739 to apply the full amount of the prior providers’ bills to the deductible. Accordingly, the Court finds that the applicable deductible was completely satisfied by the first $1,000 of Plaintiff’s bills. As such, the Court finds that Defendant is required to issue reimbursement for the portion of Plaintiff’s bills after satisfaction of the deductible.

b. Defendant’s Case Law

Defendant attempts to take refuge in General Star Indemnity Co. v. West Florida Village Inn, Inc., 874 So.2d 26 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D1070b], however it has severely misinterpreted the holding of this case. At the outset, it must be recognized that General Star has limited applicability to a statutory insurance case. See Flores v. Allstate Ins. Co., 819 So. 2d 740 (Fla. 2002) [27 Fla. L. Weekly S499a]. General Star stands generally for the proposition that non-covered losses should not be applied to the deductible. The question at issue in General Star is wholly irrelevant to the case sub judice.

General Star involved a pure contractual property claim where an insured sought to have a specifically excluded loss be applied to the deductible. When types of loss are wholly excluded, they, of course, are outside the scope of coverage and thus cannot be applied to a deductible. Non-statutory insurance policies may include a near-infinite quantity of restrictions. However, in contrast, statutory insurance coverage exclusions must be specifically permitted within the minimums established by the statutory scheme. The No-Fault law only authorizes a small number of exclusions (such as massage, acupuncture, self-harm, or injury occurring during commission of a felony) — none of which are applicable here.

In the case sub judice, Defendant does not dispute that the subject motor vehicle accident was a covered loss or that the services billed by Plaintiff fall within the coverage offering under the applicable insurance policy. The type of expense at issue in the instant case is exactly what was contemplated by the coverage section of the insurance contract and the No-Fault statute: medical expenses related to a motor vehicle accident. This is further confirmed by Defendant’s decision to apply the deductible to the bills at issue in this case. While the issue in General Star concerned what could be applied to the deductible, the issue in the instant case concerns only how much of covered losses to apply to the deductible. As such, the Court finds General Star inapplicable to the instant case.

The Court similarly finds Defendant’s reliance on Mercury Ins. Co. v. Emergency Physicians of Cent., 182 So. 3d 661 (Fla. 5th DCA 2015) [40 Fla. L. Weekly D2364a] misplaced. Defendant argued that Mercury extended General Star’s holding to a No-Fault case. However, General Star remains inapplicable due to the factual distinctions previously described. Moreover, Mercury similarly addressed issues that are not pertinent to the issues of the instant case. The Mercury court only utilized General Star to explain generally the purpose of a deductible. The portions of General Star on which the Mercury court relied actually refute a portion of Defendant’s position. Relying on General Star, explaining the purpose of a deductible, the Mercury Court found:

Thus, an insured enters into a contract with an insurance company and agrees to be subject to a deductible in exchange for a reduced monthly premium. In effect, the insured agrees to “self-insure” for the deductible amount. Where an accident occurs, the insured (not the insurer) becomes responsible for payment of claims that are otherwise impacted by the deductible amount in the insurance policy. Mercury Ins. Co. v. Emergency Physicians of Cent., 182 So. 3d at 667.

This further reinforces the Court’s belief that the fee schedules only apply when an insurer is the party making a payment. The Defendant was unable to explain any authority it possessed that would allow it to inject itself into the contractual relationship between doctor and patient during the period of billing that fell within the patient’s self-insurance responsibility, prior to the moment the Defendant’s responsibility to make payments triggered.

c. The Policy

The Court also finds that Defendant’s policy of insurance does not permit its “reduce-then-apply” deductible methodology. The No-Fault statute only provides the minimum thresholds for coverage and benefits which an insurer cannot restrict or negate. See Nunez v. Geico Gen. Ins. Co., 117 So. 3d 388 (Fla. 2013) [38 Fla. L. Weekly S440a]; Salas v. Liberty Mut. Fire Ins. Co., 272 So. 2d 1 (Fla. 1972); and Mullis v. State Farm Mut. Auto. Ins. Co., 252 So. 2d 229, 232-34 (Fla. 1971). An insurer may always issue policies with broader coverage or greater benefits than the statutory minimums. See Wright v. Auto-Owners Insurance Company, 739 So. 2d 180 (Fla. 2d DCA 1999) [24 Fla. L. Weekly D2033a]; Sturgis v. Fortune Insurance Company, 475 So. 2d 1272 (Fla. 2d DCA 1985). Assuming, arguendo, that §627.736 and §627.739 permitted the “reduce-then-apply” methodology, the Court finds that Defendant’s policy language would nevertheless control as it would provide broader benefits than the statutory floor.

The methodology chosen by Defendant for the application of the deductible is found in the Personal Injury Protection Coverage Endorsement. Defendant inserted the relevant deductible language (herein after referred to as the “Deductible Clause”) into its Limit of Liability Section which states, in pertinent part:

When a deductible applies, the deductible will be applied to 100% of the expenses and losses covered under Personal Injury Protection Coverage. After the deductible is met, each insured person is eligible to receive up to $10,000 in total benefits, exclusive of death benefits, under Personal Injury Protection Coverage.

(Bold typeface is used in the insurance policy to signify terms that were afforded specific definitions within the policy).

The first sentence of the Deductible Clause explains the operation of the policy before satisfaction of the deductible and relies on the terms “expense” and “losses”. The terms “expenses” and “losses” are not defined terms within the policy. The Defendant urged the Court to consider several key undefined terms in accordance with narrow alternative definitions that are less commonly used, in ways that conflict with other portions of its policy, and that are in conflict with the extrinsic documents the Defendant provided the Court as described infra. However, an insurer cannot, through its failure to define terms, “insist upon a narrow, restrictive interpretation of the coverage provided.” Nat’l Merch. Co. v. United Serv. Auto. Asso., 400 So. 2d 526 (Fla. 1st DCA 1981). See also Roberson v. United Services Auto. Asso., 330 So. 2d 745 (Fla. 1st DCA 1976) and Budget Rent-A-Car Sys. v. Government Emples. Ins. Co., 698 So. 2d 608 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D1981b]. Even if the Court were to acquiesce to Defendant’s request to utilize the narrow alternative definitions, such a review would render the relevant policy provisions ambiguous. This would lead the Court to the same conclusion as “[a]mbiguous policy provisions are interpreted liberally in favor of the insured and strictly against the drafter who prepared the policy”. Wash. Nat’l Ins. Corp. v. Ruderman, 117 So.3d 943 (Fla. 2013) [38 Fla. L. Weekly S511a] citing Ruderman v. Wash. Nat’l Ins. Corp., 671 F.3d 1208 (Fla. 11th Cir. Ct. 2012) [23 Fla. L. Weekly Fed. C785a]. See also New York Life Ins. Co. v. Kincaid, 136 Fla. 120 (Fla. 1939).

There exists a clear line of demarcation in the Deductible Clause between usage of “expenses and losses” prior to satisfaction of deductible and “benefits” after satisfaction of the deducible. This demarcation harmonizes with the interpretation of deductible as self-insurance by several appellate courts as well as Defendant’s usage of the fee schedule language elsewhere in its policy.

The insurance policy, in plain language, utilizes the Fee Schedules as a limitation regarding payments made exclusively by Defendant. The trigger for usage of the fee schedules is issuance of reimbursement by Defendant. In fact, Defendant clearly excluded payments made by an insured (such as those made during the insured’s self-insurance) from acting as a trigger for invocation of the fee schedules by Defendant’s usage of the defined term “we”² in the section adopting the fee schedule methodology. Until the moment the deductible is exhausted, Defendant cannot be considered to have issued reimbursements.

The insurance policy also does not place the insured on notice that they will not receive full credit for bills incurred during the self-insurance deductible period. To the contrary, it is clear from the declarations page that this insured bargained for a $1000 deductible, not a deductible in excess of $1300.

Defendant also argued that its policy includes an indemnification clause that should prohibit the instant lawsuit by Plaintiff medical provider. The purported indemnification clause states:

The insured person shall not be responsible for payment of any reductions applied by us. If a medical provider disputes an amount paid by us, we will be responsible for resolving such dispute. If a lawsuit is initiated against an insured person as a result of the reduction of a medical bill by us, other than reductions taken pursuant to FL St. 627.736 (5)(a)(1) (a through f), we will provide the insured person with a legal defense by counsel of our choice, and pay any resulting judgment. The insured person must cooperate with us in the defense of any claim or lawsuit. If we ask an insured person to attend hearings or trials, we will pay up to $200 per day for loss of wages or salary. We will also pay other reasonable expenses incurred at our request.

This clause is inapplicable to the facts presented herein. The clause contains a clear limitation that the Defendant is only responsible when the dispute concerns an “amount paid by” Progressive. As this lawsuit concerns application of the deductible, such amounts would only be payable by the insured and Defendant clearly did not issue payments in this lawsuit. The clause also contains a clear exception that indemnification will not be available regarding “reductions taken pursuant to FL St. 627.736 (5)(a)(1) (a through f)” which are precisely the type of reductions at issue in this case.

Defendant submitted a sample of several extrinsic documents, including various letters sent on behalf of Defendant concerning the purported indemnification clause. Plaintiff objected to the introduction of these documents on several grounds. Regardless of the merits of Plaintiff’s objections, this Court was not swayed by these letters especially in light of the fact that some of these documents presented Progressive’s position that it would treat the deductible as outside the policy limits and as a result, outside of the scope of the purported indemnification clause in question. Other documents in the record exhibit that Defendant treated the deductible as coinsurance. Defendant’s Explanation of Benefits, for example, defines coinsurance as “20% of the fee schedule amount or a deductible up to the maximum policy limits”.

Moreover, even if this clause was a true indemnification clause that was applicable to the facts presented in the case sub judice, such a clause would nevertheless not act to prevent a lawsuit by an insured or assignee medical provider against an insurer. See Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885 (Fla. 2003) [28 Fla. L. Weekly S287a] citing Jones v. Allstate Ins. Co., 7 Fla. L. Weekly Supp. 541a (Fla. Escambia Cty. Ct. 2000) (explaining that such an interpretation would create requirements that would put the doctor-patient relationship at risk and create “harmful consequences to an insured’s credit history and financial future”). Therefore the Court finds that Defendant’s purported indemnification clause argument is irrelevant to this case.

Accordingly, applying the plain meaning of defined terms, applying the standard meaning of undefined words in Defendant’s policy, and construing all ambiguities against the insurer, under the facts presented herein, Defendant must apply the deductible to 100% of Plaintiff’s bills. Defendant’s ability to reduce Plaintiff’s bills to the fee schedule amount is only permissible after the deductible is fully satisfied.

II. Plaintiff’s Motion for Summary Judgment regarding its prima facie case

Plaintiff also filed a separate motion for summary judgment regarding its prima facie case apparently out of an abundance of caution. It is unclear that several of these issues, such as medical necessity or relatedness for example, were contested by Defendant. Regardless, the Court finds that Plaintiff filed sufficient competent evidence, the Defendant filed no counter evidence in opposition, and there are no genuine issues of material fact. See Fla. R. Civ. P. 1.510; Reflex, N.V. v. UMET Trust, 336 So. 2d 473 (Fla. 3d DCA 1976). Therefore, summary judgment is entered in Plaintiff’s favor on the issues addressed in Plaintiff’s motion: reasonableness of the $1362 of charges, relatedness, medical necessity, accident, and coverage.

III. Calculation of Benefits Owed

As described, supra, Defendant is required by the No Fault law and the policy of insurance to apply the deductible to 100% of Plaintiff’s bills. Accordingly, the amount of benefits due and owing to Plaintiff is $248.79. This was calculated by applying the services in the order in which they were received³ as described below.

The following CPT Codes were wholly applied to the deductible: 99204-25 ($705), 73110-RT ($105), 73110-LT ($105). CPT Code 73080-RT was applied in part to the deductible and the remainder shall be paid in accordance with the fee schedules and §627.736(5)(a)5. The remaining CPT codes 73080-LT, 73060, L3908-RT, and L3908-RT shall be paid in accordance fee schedules.

Therefore, based on the foregoing, it is hereby ORDERED and ADJUDGED:

1. Plaintiff’s motions for Summary Judgment are GRANTED.

2. Defendant’s motion for Summary Judgment is DENIED.

3. Finding no other issues present in the case, the Court enters Final Judgment in Plaintiff’s favor.

4. The Final Judgment amount is $280.13 which consists of medical benefits and prejudgment interest accrued.

5. This Final Judgment shall bear interest at the legal rate, 4.78% per annum, upon the entire sum of the judgment as described in paragraph 3, for which let execution issue forthwith.

6. The Court finds that Plaintiff is entitled to an award of attorneys’ fees and costs. The Court reserves jurisdiction to determine the amount of fees and costs and to enter further orders to enforce this judgment.

CERTIFIED QUESTION OFGREAT PUBLIC IMPORTANCE

This Court considers the issues presented in this case to be a matter of great public importance affecting the uniform administration of justice. This Court has jurisdiction over numerous cases that were solely filed on this single legal issue. Presently, two Circuit Courts, sitting in their appellate capacity, are in conflict over this issue. See Progressive American Insurance Co. v. Chambers Medical Group, Inc. (a/a/o Sheila Wilcox), Case No. 2015 SP 000850 NC (Fla. 12th Cir. Ct. App. February 24, 2016); Garrison Property and Cas. Ins. Co. v. New Smyrna Imaging, LLC (a/a/o Megan McClanahan, 23 Fla. L. Weekly Supp. 708a (Fla. 18th Cir. Ct. App. January 12, 2015); Progressive American Ins. Co. v. Munroe Regional Health System, Inc. 23 Fla. L. Weekly Supp. 707a (Fla. 18th Cir. Ct. App. April 17, 2015); Progressive Select Ins. Co. v. Florida Hospital Medical Center a/a/o Louis Pena, Case No. 2015-CV-68-A-O (Fla. 9th Cir. Ct. App. June 10, 2016), and Progressive Select Ins. Co. v. Florida Hospital a/a/o Jonathan Parent, Case No. 2015-CV-76-A-O (Fla. 9th Cir. Ct. App. June 10, 2016). Additionally, the Court being apprised that numerous County Courts have issued conflicting Orders on this same issue both within and outside of this circuit, finds that such divergence of opinions creates significant uncertainty for Florida insureds, insurers, and medical providers. This Court previously certified a question of great public importance in the matter of in Care Wellness Center, LLC (a/a/o Virginia Bardon-Diaz) v. State Farm Mut. Auto. Ins. Co., FLWSUPP 2309BARD, 14-07576 CONO (70) (Fla. Broward Cty. Ct. 2016) [23 Fla. L. Weekly Supp. 985a], 4D16-2254, which the District Court of Appeal, Fourth District accepted on August 4, 2016. This Court believes that the issues raised by the parties and arguments presented by counsel in this case further demonstrate the lack of uniformity regarding the application of insureds’ personal injury protection deductibles in the state of Florida and the diverging nature of PIP insurers’ policies. There are additional distinct factual issues and arguments raised in the instant case, that reoccur again and again in a large number of cases statewide, that this Court believes would add to the District Court of Appeal’s analysis of this matter. Accordingly, this Court requests that this matter be consolidated with Care Wellness Center, LLC (a/a/o Virginia Bardon-Diaz) v. State Farm Mut. Auto. Ins. Co., 14-07576 CONO (70), 4D16-2254, and hereby certifies the following question to the District Court of Appeal, Fourth District, as a matter of great public importance:

PURSUANT TO FLA. STAT. §627.739, IS AN INSURER REQUIRED TO APPLY THE DEDUCTIBLE TO 100% OF AN INSURED’S EXPENSES AND LOSSES PRIOR TO APPLYING ANY PERMISSIVE FEE SCHEDULE PAYMENT LIMITATION FOUND IN §627.736(5)(A)(1), FLA. STAT. (2013)?

__________________

¹The amount of $878.98 corresponds to the amount that would have been paid by Defendant pursuant to the permissive fee schedule reimbursement election provided for in §627.736(5)(a)1, Fla. Stat. (2013) but for the existence of a deductible in the policy at issue.

²The policy defines “we” as: “the underwriting company providing the insurance, as shown on the declarations page.”

³See Mercury Ins. Co. v. Emergency Physicians of Cent., 182 So. 3d 661 (Fla. 5th DCA 2015) [40 Fla. L. Weekly D2364a] (requiring bills to be applied in the order in which they are received regardless of the identity of the provider) and Rivero Diagnostic Center (a/a/o Yolanda Pacho) v. Mercury Ins. Co. of Florida, 19 Fla. L. Weekly Supp. 1005b (Fla. 11th Cir. Ct. App. 2012).