25 Fla. L. Weekly Supp. 1047a
Online Reference: FLWSUPP 2512VILCInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — Insurer’s motion for summary judgment based on exhaustion of PIP benefits is denied where insurer has not presented sufficient evidence to demonstrate as matter of law that benefits were exhausted and were not exhausted in bad faith, and medical provider seeks declaration as to whether policy properly elected statutory fee schedule, not PIP benefits — Where PIP policy does not clearly and unambiguously elect statutory fee schedule method of reimbursement, insurer is not lawfully authorized to pay claims using hybrid method described in policy and must use fact dependent method of section 627.736(5)(a)
CRESPO & ASSOCIATES, P.A., a/a/o A. Vilchis, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, County Civil Division. Case No. 17-CC-002778, Division L. February 7, 2018. Michael S. Williams, Judge. Counsel: David M. Caldevilla, de la Parte & Gilbert, P.A., Tampa, Christopher P. Calkin and Mike N. Koulianos, The Law Offices of Christopher P. Calkin, Tampa, for Plaintiff. Jaime Goode, Progressive PIP House Counsel, Tampa, for Defendant.
ORDER ON COMPETINGMOTIONS FOR SUMMARY JUDGMENT
THIS CAUSE came before this Court on January 31, 2018 concerning: (1) “Defendant’s Motion for Final Summary Judgment” dated November 30, 2017, and (2) “Plaintiff’s Motion for Summary Judgment Concerning Count I of Complaint” dated January 9, 2018. The Court, having considered the motions, the arguments of counsel, the record, and the admissible evidence, and being otherwise advised in the premises, hereby
ORDERS AND ADJUDGES as follows:
1. The “Defendant’s Motion for Final Summary Judgment” is DENIED. First, the Defendant has not presented sufficient admissible evidence to demonstrate as a matter of law that personal injury protection (“PIP”) benefits are actually exhausted, and if so, that the PIP benefits were not exhausted in bad faith or otherwise unlawfully exhausted or gratuitously paid. Second, even if PIP benefits are exhausted, the Plaintiff is not seeking any PIP benefits in this case. The Plaintiff is seeking a declaratory judgment on the issue of whether the Defendant’s insurance policy clearly and unambiguously elects the schedule of maximum charges payment calculation method described in Section 627.736(5)(a)1-5, Florida Statutes. If the insurance policy properly elected the schedule of maximum charges method, the Plaintiff is prohibited by Section 627.736(5)(a)4, Florida Statutes from balance billing the insured patient for amounts not paid by the Defendant under that method. However, this prohibition does not apply to the fact-dependent payment calculation method described in Section 627.736(5)(a), Florida Statutes. Thus, in order to bill the insured patient for the correct amount, the Plaintiff needs to know whether the Defendant’s insurance policy is governed by the schedule of maximum charges method or the fact-dependent method. For this reason, regardless of whether PIP benefits are exhausted or not, there is a bona fide, actual, present and practical need for a declaration in this case.
2. For the reasons previously announced by the undersigned judge’s decision in Hess Spinal & Medical Centers, Inc., a.a.o. Stefan Iliev v. Progressive American Ins. Co., Case No. 15-CC-16500, “Amended Order on Competing Motions for Summary Judgment” (Hillsborough County Ct. Aug. 22, 2017), and by the Honorable Herbert M. Berkowitz’s decision in SOCC, P.L. d.b.a. South Orange Wellness & Injury Center, a.a.o. Jaime Otero et al. v. Progressive Select Ins. Co., Case No. 16-CC-00928, “Final Declaratory Judgment on Competing Motions for Summary Judgment” (Hillsborough County Ct. Oct. 4, 2017), the “Plaintiff’s Motion for Summary Judgment Concerning Count I of Complaint” is GRANTED.
3. As in Iliev and Otero, this Court hereby determines and declares as a matter of law as follows:
(a) The Defendant’s insurance policy does not clearly and unambiguously invoke the schedule of maximum charges method as the Defendant’s choice of one particular method of calculating PIP benefits to the exclusion of all others.
(b) With respect to PIP claims submitted under the insurance policy, the Defendant is not lawfully authorized to pay such claims pursuant to the hybrid method described in that policy, and must instead pay such claims pursuant to the fact-dependent described in Section 627.736(5)(a) by default.
4. This is a non-final order. This Court reserves jurisdiction to determine Count II of the complaint, and any claims for reasonable attorneys’ fees and costs.
