24 Fla. L. Weekly Supp. 456a
Online Reference: FLWSUPP 2406WARDInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy that includes fact-dependent factors and permissive statutory fee schedules in definition of reasonable charge impermissibly commingles payment methodologies and does not provide clear and unambiguous notice of intent to limit reimbursement to fee schedule — Neither approval of policy language by Office of Insurance Regulation nor incorporation of OIR sample language in policy rises to level of per se compliance with notice requirements
DAVID N. MIGDAL, D.C. d/b/a SOUTHERN CHIROPRACTIC LIFE CENTER (Patient: Joseph Ward), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court,15th Judicial Circuit in and for Palm Beach County, Civil Division. Case No. 502014SC011182XXXXSBRD. March 31, 2016. Reginald R. Corlew, Judge. Counsel: Joseph R. Fasone, Ellis, Ged & Bodden, P.A., Boca Raton, for Plaintiff. Carlos Camona, Bronstein & Camona, P.A., Fort Lauderdale, for Defendant.
ORDER DENYING DEFENDANT’S AMENDEDMOTION FOR PARTIAL SUMMARY JUDGMENTAS TO APPLICATION OF THE FEE SCHEDULE
THIS CAUSE came before the Court on March 29, 2016, for hearing on Defendant’s Amended Motion for Partial Summary Judgment as to Application of the Fee Schedule, and the Court having reviewed the Motion, Plaintiff’s Response to same, the entire Court file, and the relevant legal authorities; having heard argument of counsel; and having been sufficiently advised in the premises, the Court finds as follows:
This case involves a medical provider’s breach of contract claim to recover PIP benefits from an insurer and the issue presented is whether State Farm’s 9810A PIP policy of insurance clearly and unambiguously permits it to limit reimbursement pursuant to the schedule of maximum charges described in F.S. 627.736(5)(a)1 (2012). The Court finds that State Farm’s 9810A does not properly elect the permissive payment methodology of F.S. 627.736(5)(a)1 in the language of endorsement 9810A as its exclusive method to reimburse claims for PIP benefits.
State Farm presented argument during the hearing that its insurance policy does in fact retain the “reasonable expense” methodology in its policy language. Further, State Farm presented argument that its policy caps reimbursement at the “schedule of maximum charges”, which still gives State Farm the option to pay claims at less than the schedule of maximum charges pursuant to the definition of a “reasonable charge” listed in State Farm’s insurance policy. State Farm’s insurance policy defines reasonable charge as follows:
Reasonable Charge, which includes reasonable expense, means an amount determined by us to be reasonable in accordance with the No-Fault Act, considering one or more of the following:
1. usual and customary charges;
2. payments accepted by the provider;
3. reimbursement levels in the community;
4. various federal and state medical fee schedules applicable to motor vehicle and other insurance coverages;
5. the schedule of maximum charges in the No-Fault Act;
6. other information relevant to the reasonableness of the charge for the service, treatment, or supply; or,
7. Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services, including applicable modifiers, if the coding or payment methodology does not constitute a utilization limit.
The Florida Motor Vehicle No-Fault law expressly requires insurers to base their minimum reimbursement on the “schedule of maximum charges”, and not a cap as State Farm suggests. See, Nationwide Mutual Fire Ins. Co. v. AFO Imaging, Inc., 71 So.3d 134, (Fla. 2nd DCA 2011) [36 Fla. L. Weekly D1463b].
In its 9810A policy, State Farm has chosen to include the fact-dependent factors in its definition of “Reasonable Charge” as described in its definition of said term, while also attempting to reimburse charges pursuant to the permissive payment methodology as described in its schedule of maximum charges. The Defendant impermissibly commingles F.S. 627.736(5) and F.S. 627.736(5)(a). Such commingling runs afoul of F.S. 627.736(5)(a)5 and Geico v. Virtual Imaging Services, 141 So.3d 147, 159 (2013) [38 Fla. L. Weekly S517a].
This Court is compelled to follow the reasoning and precedent established in Orthopedic Specialists v. Allstate Insurance Company, 40 Fla. L. Weekly D1918a (Fla. 4th DCA 2015) which cited to the central holding in Virtual Imaging as follows:
To elect a payment limitation option, the PIP policy must do so “clearly and unambiguously.” A policy is not sufficient unless it plainly and obviously limits reimbursement to the Medicare fee schedules exclusively. . . . The Policy must make it inescapably discernable that it will not pay the “basic” statutorily required coverage and will instead substitute the Medicare fee schedules as the exclusive form of reimbursement.
With regard to State Farm’s argument that the Office of Insurance Regulation (OIR) has approved its 9810A policy and that said approval constitutes a finding of compliance with the Notice requirements contained in F.S. 627.736(5)(a)5, the interpretation of statutes is within the purview of the Judicial system, not the legislature nor the Executive branch. Therefore, OIR “approval” of Policy Form 9810A and State Farm’s incorporation of the OIR “sample form” are not dispositive of the Defendant’s Motion for Partial Summary Judgment and do not rise to the level of per se compliance with the requisite notice requirement of F.S. 627.736(5)(a)5. See Neurology Partners, PA D/B/A Emas Spine & Brain a/a/o Dawn Beals v. State Farm, FLWSUPP 2308 BEAL, (4th Jud. Cir. Duval County 2015) [23 Fla. L. Weekly Supp. 833a]; Neurology Partners, P.A. d/b/a Emas Spine & Brain a/a/o Willie Brown v. State Farm Mutual Automobile Insurance Company, 23 Fla. L. Weekly Supp. 550a (4th Jud. Cir. 2015),
Based upon the foregoing analysis and legal authority, the Court finds that State Farm’s choice of reimbursement in its 9810A Policy is unclear and ambiguous and therefore it is hereby
ORDERED AND ADJUDGED that Defendant’s Amended Motion for Partial Summary Judgment as to Application of the Fee Schedule is DENIED.
