25 Fla. L. Weekly Supp. 563a
Online Reference: FLWSUPP 2506KUPInsurance — Personal injury protection — Deductible — Insurer properly applied policy deductible to reasonable covered expenses calculated pursuant to fee schedules and was not required to apply deductible first against amount billed for services rendered before applying fee schedules
INJURY CENTERS OF NORTH TAMPA., INC. a/a/o, Isabella A. Kup-Correia, Plaintiff, vs. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 16-CC-015807. July 28, 2017. Herbert M. Berkowitz, Judge. Counsel: Derek J. Paredes, Landau & Associates, P.A., Tampa, for Plaintiff. Mark S. Tomlinson, Progressive PIP House Counsel, Tampa, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONOR FINAL SUMMARY JUDGMENT AND DENYINGPLAINTIFF’S MOTION FOR SUMMARYJUDGMENT AS TO IMPROPER APPLICATIONOF POLICY DEDUCTIBLE
THIS CAUSE having come before the Court on July 3, 2017, pursuant to Defendant’s Motion for Final Summary Judgment (certificate of service date February 2, 2017) and Plaintiff s Motion for Summary Judgment as to Improper Application of Policy Deductible (certificate of service date February 23, 2017), and the Court having reviewed the record evidence, pleadings, and motions, and having considered argument of Counsel and legal authority submitted by the parties, and being otherwise fully advised in this matter, does hereby make the following findings of fact and conclusions of law:
FINDINGS OF FACT
At the time of the alleged accident on September 27, 2015, the Claimant, Isabella A. Kup-Correia, was insured by an automobile insurance policy issued by Progressive Select Insurance Company under contract form 9611D (07/13), issued on August 4, 2015 with effective dates August 4, 2015 through February 4, 2016. The policy included $10,000.00 in Personal Injury Protection benefits and a $1,000.00 deductible. Defendant received bills for treatment from Plaintiff, INJURY CENTERS OF NORTH TAMPA., INC., for dates of service September 30, 2015 through December 8, 2015 in the total amount of $5,853.71. In accordance with the Defendant’s policy, the total that was determined by the Defendant to be the compensable, reasonable charges for the services billed was $4,063.02. Following the determination of the reasonable charges, the Defendant applied the $1,000.00 deductible, and issued payment to the Plaintiff totaling $2,450.42 (80% of the reasonable charges after application of the deductible).
Defendant applied 100% of the reasonable charges covered under the policy to the deductible. In determining the amount of charges covered under the policy, the Defendant reduced the charges pursuant to F.S. § 627.736 (5)(a)(2) and Defendant’s policy of insurance. Plaintiff filed a Complaint for Breach of Contract against Defendant alleging that Defendant failed to pay all amounts owed for PIP benefits under the policy.1
ANALYSIS AND CONCLUSIONS OF LAW
Plaintiff argues that Defendant has improperly utilized the fee schedules and payment methodologies for services which were applied to the $1,000.00 deductible under the policy. This Court finds that the Defendant properly applied the deductible pursuant to §627.739, Fla. Stat (2008) and §627.736, Fla. Stat. (2013)2. At the time of the alleged accident, the claimant was insured by the Defendant under Progressive’s 9611D FL (07/13) policy which states in pertinent part:
“We will determine to be unreasonable any charges incurred that exceed the maximum charges set forth in Section 627.736(5)(a)(2)(a through) of the Florida Motor Vehicle No-Fault Law, as amended.”
The policy goes on to further state:
“we will limit reimbursement to, and pay no more than, 80 percent of the following schedule of maximum charges . . .200 percent of the allowable amount under the participating physicians fee schedule of Medicare Part B.”
This court Ends that in light of the above policy language and in holding with the recent opinion in Allstate v. Orthopedic Specialists, 212 So.3d 973 (Fla. 2017)3 [42 Fla. L. Weekly S38a], the Defendant clearly and unambiguously states in its policy that it will use the fee schedules and payment methodologies in Section 627.736(5)(a)(2) to determine the reasonable and compensable expenses.
Section 627.739, Fla. Stat. must be read in conjunction with §627.736, for charges that fall within the deductible elected in the policy of insurance4. Thus, Defendant appropriately determined the reasonable charges as billed by the Plaintiff, and applied the covered charges to the policy deductible.
This Court disagrees with the Plaintiff’s analysis that the deductible should be applied to the provider’s billed amount, as that misinterprets the meaning of “100% of the expenses and losses covered under Personal Injury Protection coverage” as stated in the Defendant’s policy and the Florida Motor Vehicle No-Fault Law. This Court is also not persuaded by the Plaintiff s argument that Section, 627.739, Fla. Stat., could not have contemplated the use of fee schedules and payment methodologies because it came into existence prior to the 2003 amendment to Section 627.736. This Court finds that the version of the PIP statute (§627.736) in effect at the time the deductible statute (§627.739) was amended in 2003, sunset in 2007. As such, the newer, subsequently enacted 2008 No-Fault statute, and its references to the Medicare Part B fee schedules, is what governs this case. Section 627.739 became incorporated into Section 627.736 in its current ideation and must be read together when determining how the deductible is to be applied.
This Court finds that the Defendant properly applied the deductible pursuant to §627.739, Fla. Stat. and §627.736, Fla. Stat. and appropriately applied the policy deductible to the covered charges.
It is therefore, ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment is hereby GRANTED, and Plaintiffs Motion for Summary Judgment as to Improper Application of Policy Deductible is hereby DENIED. The Court reserves jurisdiction to determine Defendant’s entitlement to reasonable attorney’s fees and costs.
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1The parties first stipulated for purposes of this case that Plaintiff would not be challenging Defendant’s use of the Multiple Procedure Payment Reduction (MPPR) coding methodology in determining the reasonable amount of Plaintiff’s bills. No ruling is made on that issue in this case.
2This Court finds that the relevant version to cross reference is §627.736, Fla. Stat. (2013) as there is clear Legislative intent as to what constitutes covered benefits under this version of the statute, i.e., “medical benefits do not include massage. . . .”
3“Reimbursements made under Section 627.736(5)(a)(2) satisfy the PIP statute’s reasonable medical expense coverage mandate”. See Allstate v. Orthopedic Specialists, 212 So.3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a].
4See Mercury Ins. Co. of Florida v. Emergency Physicians of Cent. R., 182 So.3d 661 (Fla. 5th DCA 2015) [40 Fla. L. Weekly D2364a].
