25 Fla. L. Weekly Supp. 754a
Online Reference: FLWSUPP 2508GARCInsurance — Personal injury protection — Coverage — Medical expenses — Deductible — No merit to argument that insurer failed to produce competent, admissible evidence that insured elected deductible where adjuster’s affidavit and exhibit attests that deductible is clear term of insured’s PIP policy — Insurer improperly reduced total amount billed by medical provider to compensable expenses before applying deductible, rather than applying deductible to total amount billed
HECTOR GARCIA, an insured individual by and through his/her assignee, TAMPA BAY IMAGING, LLC, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, County Civil Division. Case No. 16-CC-1444. Division U. September 27, 2017. Frances M. Perrone, Judge. Counsel: Marc J. Semago, Florida Legal Group, Tampa, for Plaintiff. D. Cassie Bermudez, Progressive PIP House Counsel, Tampa, for Defendant.
ORDER ON PLAINTIFF’S AND DEFENDANT’SCOMPETING MOTIONS FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court for hearing on March 30, 2017, on Plaintiff’s “Motion for Summary Judgment” and Defendant’s “Motion for Final Summary Judgment as to Its Application of the Deductible.” This Court reviewed all pleadings, case law, record evidence and considered argument from counsel for both parties. The Court hereby finds as follows:FINDINGS OF FACT
On or about May 15, 2012, Hector Garcia was involved in a motor vehicle crash. At the time of the accident, Hector Garcia (“Insured”) was covered under an automobile insurance policy issued by Progressive American Insurance Company (“Defendant”) which provided no-fault coverage in the amount of $10,000.00. Tampa Bay Imaging, LLC, (“Plaintiff”) a medical provider, took an assignment from Hector Garcia and provided services to Garcia. On or about September 11, 2013, Plaintiff issued a “Demand Letter Under s.627.736” Florida Statutes (“Demand Letter”). See Plaintiff’s Motion for Summary Judgment, Exhibit A p. 52 (March 10, 2017). The Demand Letter indicated Tampa Bay Imaging, LLC rendered services to the Insured on May 25, 2012, and charged $3,300.00 for said services. The Demand Letter claimed payment for medical treatment pursuant to Florida Statutes §627.736(1)(a). The Demand Letter further recognized a partial payment received in the amount of $964.59 and finally sought a balance due of $2,335.41.
Defendant issued an Explanation of Benefits and therein determined $1,778.84 was the amount allowed. Defendant applied a remaining deductible/co-pay of $814.25, resulting in the payment amount of $964.59, which was 80% of the amount allowed after application of the policy deductible. See Plaintiff’s Motion for Summary Judgment, Exhibit A p.3 (Affidavit of Lacy Pisani, Litigation Specialist/Claims Adjuster); see also Id. at Exhibit A p. 61 (Explanation of Benefits).LEGAL ANALYSIS
Plaintiff first argues Defendant has failed to produce competent, admissible evidence regarding the election of a deductible by the Insured. The Court finds otherwise. The Insured has assigned benefits to Plaintiff to bring suit under Insured’s policy of insurance through Defendant. The policy under which Plaintiff proceeds was underwritten on January 23, 2012 for an effective period of February 29, 2012 through August 29, 2012. A clear term of this policy is a $1,000 deductible per person, as attested to by Defendant’s adjuster, Lacy Pisani, and included as composite Exhibit A to the adjuster’s affidavit. On this ground, Plaintiff’s Motion for Summary Judgment is Denied.
Plaintiff’s second argument challenges the manner in which the Defendant applied the PIP deductible as improper and in violation of Florida Statutes § 627.739(2). Florida Statutes § 627.739 (2) states:
(2) Insurers shall offer to each applicant and to each policyholder, upon the renewal of an existing policy, deductibles, in amounts of $250, $500, and $1,000. 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). However, this subsection shall not be applied to reduce the amount of any benefits received in accordance with s. 627.736(1)(c).
Florida Statutes §§ 627.041, 627.402, 627.672, 627.677, 627.732, 627.9404, 627.942, and 627.971 each provide definitions for Chapter 627. Definitions are set forth for terms including but not limited to: “rate,” “premium,” “rating organization,” “advisory organization,” “member,” “subscriber,” “willful,” “policy,” “motor vehicle insurance,” “insurer,” “financial institution,” “liability,” “named insured,” “local,” “hospital,” “state,” “collateral,” and “municipal bonds.” Many of these terms have a common understanding. However, the legislature specifically defined these and other terms for purposes of this statute.
The applicable section, 627.736, outlines the terms, “medical benefits,” “disability benefits,” and “death benefits.” Nowhere in the statute does the legislature provide a definition of the term “expenses.”
Defendant argues, “The Florida Motor Vehicle No-Fault Law mandates that an insurance deductible elected by an insured be applied against the compensable medical bills rather than the total amount billed by a medical provider.” Defendant’s Motion for Final Summary Judgment pp. 3-4 (August 9, 2016) (citing to Bayfront Health Educ. & Research Org., Inc. v. Progressive American Ins. Co., 22 Fla. L. Weekly Supp 934a (Fla. Pinellas Cty. Ct. Feb 20, 2015). Defendant further argues, “A reading of the plain language . . . supports a conclusion that deductibles be applied only against compensable medical bills rather than the total amount billed. . .” (Defendant’s Motion for Final Summary Judgment p. 4) (emphasis added).
This Court disagrees and finds these arguments adjust the actual, plain language of the statute. The plain language of the statute clearly states, “the deductible amount must be applied to 100 percent of the expenses and losses described in s. 627.736.” The legislature neither provided an additional definition of “expenses” nor included any additional language. Therefore, the statute is clear on its face and this Court declines to include additional verbiage not present in the existing law.
ORDERED AND ADJUDGED Plaintiff’s “Motion for Summary Judgment” as to the manner in which the Defendant applied the PIP deductible was improper and in violation of Florida Statute §627.739(2) is hereby GRANTED. Defendant’s “Motion for Final Summary Judgment as to Its Application of the Deductible” is hereby DENIED.
