25 Fla. L. Weekly Supp. 832a
Online Reference: FLWSUPP 2509SAUVInsurance — Personal injury protection — Exhaustion of benefits — Gratuitous payments — Insurer’s payments based on 200% of 2007 Non-Facility Limiting Charge of Medicare Fee Schedule were in good faith and appropriate based upon language of statute and, accordingly, were not gratuitous
LAKE WORTH SURGICAL CENTER, a/a/o JEAN SAUVEUR, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COSO 17-001996 (62). October 18, 2017. Terri-Ann Miller, Judge. Counsel: Josh Madow, for Plaintiff. Edward Winitz and Matthew Innes, for Defendant.
ORDER ON DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS CAUSE came on to be heard on July 6, 2017, upon Defendant’s Motion for Final Summary Judgment, and the Court having heard argument of counsel, having reviewed the evidence, and being otherwise fully advised in the premises thereof, it is hereby ordered and adjudged that Defendant’s motion is hereby GRANTED.
I. BACKGROUND
1. This case arises out of a claim for Personal Injury Protection benefits as a result of an automobile accident occurring on or about April 25, 2015. Plaintiff filed its Complaint for breach of contract on February 6, 2017.
2. Defendant issued an automobile insurance policy providing personal injury protection (PIP) benefits of $10,000.00 to JEAN SAUVEUR, subject to the terms and conditions of the insurance policy and Florida law. The policy does not provide medical payments coverage.
3. On July 6, 2017, this Court heard argument on Defendant’s Motion for Final Summary Judgment regarding exhaustion of PIP benefits.
4. In support of Defendant’s Motion, Defendant filed the Affidavit of Chris Mahese, the litigation adjuster assigned to the instant claim. This Affidavit authenticated the Defendant’s PIP Payment Log and Explanations of Review, evidencing payment by Defendant to various providers in the total amount of $10,000.
5. The Affidavit of Chris Mahese also stated that on October 2, 2015, prior to the filing of the instant lawsuit, all available PIP benefits under the subject policy of insurance for JEAN SAUVEUR were paid, rendering all PIP benefits exhausted.
6. Plaintiff did not file any evidence in opposition to Defendant’s Motion or contest the validity of the Affidavit filed by Defendant.
7. At the time of the hearing, Plaintiff’s counsel stipulated that Defendant’s 9810A policy of insurance provided the proper notice to its insured to limit reimbursement pursuant to the “Schedule of Maximum Charges” of Florida Statute 627.736(5)(a)(2015).
8. Plaintiff’s sole argument against exhaustion of benefits centered on the Defendant’s payments to Boynton Beach Medical and Precision Diagnostic. Plaintiff argued that payments to these providers based on 200% of the 2007 Non-Facility Limiting Charge of the Medicare Fee Schedule were gratuitous to the extent they exceed 200% of the 2007 Non-Facility Price. Plaintiff argued that the PIP Statute and 9810A policy required Defendant to use the Non-Facility Price, not the Limiting Charge, as a basis for all reimbursements pursuant to the Schedule of Maximum Charges.
9. Non-Facility Prices of the Medicare Fee Schedules are applied to Medicare participating providers. Limiting Charges are used for non-participating providers in the Medicare Part B program.
10. Plaintiff did not contest the validity of any other payments made by Defendant in the instant case.
11. Defendant argued that all payments were issued for timely submitted bills and that all payments were made in good faith.
12. Finally, Defendant argued that the PIP Statute and 9810A policy do not require Defendant to reimburse charges according to the participating, Non-Facility Price when Defendant is relying on the 2007 Medicare fee schedule.
II. ANALYSIS
13. Florida courts have established that, once an insurer has paid out the policy limits to the insured (or to various providers as assignees), it is not liable to pay any further PIP benefits, even those that are in dispute.” Sheldon v. United Serv. Auto. Assoc., 55 So. 3d 593 (Fla. 1st DCA 2010) [36 Fla. L. Weekly D23a] (citing Simon v. Progressive Express Ins. Co., 904 So. 2d 449 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b]). See also USAA Cas. Ins. Co. v. Shiver, 19 Fla. L. Weekly Supp. 780a (1st Cir. App. 2011) (finding that the insurance company met its obligation under the policy, even though it made a payment to another medical provider which exhausted benefits after plaintiff’s suit was filed and served). The only exception is if there is a showing of bad faith. Progressive Am. Ins. Co. v. Stand-Up MRI, 990 So. 2d 3 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a].
14. Fla. Stat. 627.736(5)(a)1.f. requires an insurer limiting payment to the “Schedule of Maximum Charges” to utilize “the participating physicians fee schedule of Medicare Part B.”
15. However, Fla. Stat. 627.736(5)(a)2. States:
For purposes of subparagraph 1., the applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect on March 1 of the service year in which the services, supplies, or care is rendered and for the area in which such services, supplies, or care is rendered, and the applicable fee schedule or payment limitation applies to services, supplies, or care rendered during that service year, notwithstanding any subsequent change made to the fee schedule or payment limitation, except that it may not be less than the allowable amount under the applicable schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B. For purposes of this subparagraph, the term “service year” means the period from March 1 through the end of February of the following year. (emphasis added.)
16. Notably, Fla. Stat. 627.736(5)(a)2. is silent as to whether an insurer should apply the participating or non-participating fee schedule when the 2007 fee schedule is higher than the applicable- fee schedule for the service year in which the services are rendered.
III. CONCLUSION
17. Here, there is no allegation of bad faith, and it is undisputed that Defendant paid $10,000.00 in Personal Injury Protection benefits under the policy issued to JEAN SAUVEUR.
18. Additionally, the Court finds that Defendant’s approved amounts to Boynton Beach Medical and Precision Diagnostic based on 200% of the 2007 Non-Facility Limiting Charge of the Medicare Fee Schedule were in good faith and appropriate based upon the language of the Statute. The Court specifically finds that the payments made by State Farm based upon the 2007 Non-Facility Limiting Charge were not gratuitous.
19. Accordingly, benefits are properly exhausted and Defendant’s Motion for Final Summary Judgment is GRANTED.
__________________FINAL JUDGMENT IN FAVOR OF DEFENDANTSTATE FARM MUTUAL AUTOMOBILEINSURANCE COMPANY
Pursuant to the Final Judgment rendered in this action on Defendant’s Motion for Final Summary Judgment,
IT IS ADJUDGED THAT Plaintiff, LAKE WORTH SURGICAL CENTER, a/a/o, JEAN SAUVEUR, 7408 Lake Worth Road, Lake Worth, Florida, 33467 take nothing by this action and Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, 7401 Cypress Gardens Boulevard, Winter Haven, Florida, 33883, shall go hence without day. The Court reserves jurisdiction to tax fees and costs for the Defendant as the prevailing party.
