25 Fla. L. Weekly Supp. 309a
Online Reference: FLWSUPP 2504CAMBInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Policy at issue clearly and unambiguously provided sufficient notice to insured and provider of insurer’s election of permissive method of reimbursement where amendatory endorsement clearly provided that insurer would reimburse either 80% of actual charge or 80% of Medicare fee schedules, whichever was lesser — Policy language does not state that insurer has ability to reimburse based on a reasonable amount, but instead describes insurer’s method of determining whether treatment itself is reasonable
MERCURY INDEMNITY COMPANY OF AMERICA, Appellant, v. CORAL SPRINGS PHYSICIANS ASSOCIATES, INC., a/a/o Johnathan Cambeiro, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE14-019185 (AP). L.T. Case No. CONO14-000398. June 7, 2017. Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County, Louis H. Schiff, Judge. Counsel: Douglas H. Stein and Stephanie Martinez Simm, Bowman & Brooke, LLP, Miami, for Appellant. Marlene S. Reiss, Law Offices of Marlene S. Reiss, P.A., Miami, for Appellee.
[Lower court final judgment published at 22 Fla. L. Weekly Supp. 284a.]
OPINION
(PER CURIAM.) Mercury Indemnity Company of America (“Mercury”) appeals a final judgment in favor of Coral Springs Physicians Associates, Inc. (“Coral Springs”). Having carefully reviewed the briefs, the record and the applicable law, we dispense with oral argument. and find that the final judgment should be reversed as set forth below.
Coral Springs sued Mercury in the trial court for breach of contract for personal injury protection benefits. Mercury asserted the affirmative defense that its policy language provides sufficient notice that it may limit medical provider reimbursements and apply the Medicare fee schedules set forth in section 627.736(5)(a)2., Florida Statutes. The sole issue before the trial court was whether Mercury’s insurance policy and amendatory endorsement constituted a clear election of this permissive method of reimbursement. The trial court determined the issue upon competing motions for summary judgment. After a hearing, the trial court concluded that Mercury’s policy did not clearly and unambiguously place the insured and medical provider on notice that reimbursements would be limited in accordance with the Medicare fee schedules set forth at section 627.735(5)(a)2., Florida Statutes. The trial court held that Mercury’s policy “essentially allows Mercury to choose on a claim-by-claim basis whether to pay the reasonable amount using computer programs, databases and published sources of medical expense information or pay the 200% of Medicare Fee schedule amount.” This Court reviews this decision de novo. See Harris v. Aberdeen Prop. Owners Ass’n, Inc., 135 So. 3d 365, 367 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D193a].
This Court finds that the Mercury’s policy language1 clearly and
unambiguously provides sufficient notice to the insured and the medical provider of Mercury’s election of the permissive method of reimbursement. See, e.g., Allstate Ins. Co. v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a] (holding that the insurance policy provided legally sufficient notice of the insurer’s election to use the permissive Medicare fee schedules identified in section 627.736(5)(a)2., Florida Statutes, to limit reimbursements for medical expenses).2 Had Mercury omitted the restrictive language, “at the lessor of,” from the amendatory endorsement, this Court would agree that neither the insured nor the provider would be on notice of Mercury’s election. However, the amendatory endorsement clearly provides that Mercury w ill reimburse, whichever is lessor of, either 80% of the actual charge or 80% of the Medicare fee schedules. In addition, the policy does not state that Mercury has the ability to reimburse based on a reasonable amount. Rather the language in the policy3 describes Mercury’s method to determine whether the treatment itself is reasonable and is not a method to determine the amount to be reimbursed to a provider. The subject language merely provides that Mercury may use various sources of information in deciding whether a medical expense is reasonable and necessary. Therefore, the trial court erred in entering final judgment in favor of Coral Springs.
Accordingly, the final judgment in favor of Coral Springs Physicians Associates, Inc. is hereby REVERSED, and this case is REMANDED for further proceedings consistent with this Opinion. Mercury’s Motion for Attorney’s Fees is hereby GRANTED conditioned upon a determination that Mercury’s proposal for settlement is valid and enforceable. Coral Springs’s Motion for Appellate Attorney’s Fees and Costs is hereby DENIED. (MURPHY, PERLMAN and LEVENSON, JJ., concur.)
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1The amendatory endorsement provides that, “Medical Benefits shall be payable at the lessor of: 80% of the actual charge, or 80% of the following schedule of maximum charges contained in Florida Statute § 627.736(5)(a)2. . .”
2Having reviewed the language in the Mercury policy and entered the final judgment under review in 2014, unfortunately, the trial court did not have the benefit of the Allstate decision.
3Section 4 and 8 of the policy, provide that,
4. We have the right to review the medical expenses incurred to decide if reasonable and necessary for the diagnosis and treatment of the bodily injury.
8. As authorized by the No-Fault Law, we may use various sources of information to decide if any medical expense is reasonable and necessary and caused by an accident. These sources include but are not limited to:
a. Exams by doctors we select, at our expense, as often as we reasonably request;
b. Review of medical records and test results by persons and services selected by us;
c. Computer programs and databases for the analysis of Medical treatment and expenses; and
d. Published sources of medical expense information.
