25 Fla. L. Weekly Supp. 816c
Online Reference: FLWSUPP 2509PAGAInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — PIP policy that provides that insurer will limit reimbursement of medical expenses to 80% of reasonable charge but in no event will pay more than 80% of schedule of maximum charges set forth in PIP statute clearly and unambiguously elects to limit payment based on statutory fee schedules
NEUROLOGY ASSOCIATES GROUP (Patient: Joelle Pagan), Plaintiff, v. METROPOLITAN CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 15-020940 SP 23 (03). April 6, 2017. Linda Singer Stein, Judge. Counsel: Radames Heredia, for Plaintiff. Michael B. Chackman, Bernstein Chackman Liss, Hollywood, for defendant.
FINAL SUMMARY JUDGMENT FOR DEFENDANT,METROPOLITAN CASUALTY INSURANCE COMPANY
This cause came to be considered on the Motion of the Defendant, on November 4, 2016, METROPOLITAN CASUALTY INSURANCE COMPANY, for Final Summary Judgment, and based upon the argument of counsel, it is hereby ORDERED and ADJUDGED that:
1. The Motion is GRANTED. Final Summary Judgment is hereby granted in favor of Defendant METROPOLITAN CASUALTY INSURANCE COMPANY (“METROPOLITAN”).
2. METROPOLITAN issued an automobile insurance policy that provided Florida no-fault benefits to Joelle Pagan, which was in full force and effect on March 12, 2015, the date of the alleged accident.
3. Joelle Pagan was allegedly involved in a motor vehicle accident on March 12, 2015 and the Plaintiff submitted bills to the Defendant for medical services allegedly rendered to Joelle Pagan for dates of service March 19, 2015 through April 7, 2015.
4. In making payment, METROPOLITAN relied upon the language of the policy, which provides at paged 4 and 5 of the FL600E endorsement:
Limit of Liability; Application of Deductible; Other Insurance
D. We will limit reimbursement of medical expenses under Personal injury Protection Coverage to 80 percent of a properly billed reasonable charge, but in no event will we pay more than 80 percent of the following schedule of maximum charges as set forth in Florida Statute s. 627.736(5)(a)(1):
1. For emergency transport and treatment by providers licensed under chapter 401, Florida Statutes, 200 percent of Medicare.
2. For emergency services and care provided by a hospital licensed under chapter 395, Florida Statutes, 75 percent of the hospital’s usual and customary charges.
3. For emergency services and care as defined by s. 395.002, Florida Statutes, provided in a facility licensed under chapter 395, Florida Statutes, rendered by a physician or dentist, and related hospital inpatient services rendered by a physician or dentist, the usual and customary charges in the community.
4. For hospital inpatient services, other than emergency services and care, 200 percent of the Medicare Part A prospective payment applicable to the specific hospital providing the inpatient services.
5. For hospital outpatient services, other than emergency services and care, 200 percent of the Medicare Part A Ambulatory Payment Classification for the specific hospital providing the outpatient services.
6. For all other medical services, supplies, and care, 200 percent of the allowable amount under:
a. The participating physicians fee schedule of Medicare Part B, except as provided in b. and c. below.
b. Medicare Part B, in the case of services, supplies, and care provided by ambulatory surgical centers and clinical laboratories.
c. The Durable Medical Equipment Prosthetics/Orthotics and Supplies fee schedule of Medicare Part B, in the case of durable medical equipment.
However, if such services, supplies, or care is not reimbursable under Medicare Part B, as provided in 6. above, we will limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13, Florida Statutes, and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation will not be reimbursed by us.
5. In the matter of Florida Wellness & Rehab v. Allstate Fire & Casualty Insurance Company, 41 Fla. L. Weekly D1619c (Fla. 3d DCA, July 13, 2016), the Third District Court of Appeal ruled in favor of the insurer and found that the policy clearly notified the insured of Allstate’s intention to limit payment based on the fee schedules, where that policy provided coverage for “reasonable expenses” but stated that “any amounts payable under this coverage shall be subject to any and all limitations, authorized by section 627.736, or any other provisions of the Florida Motor Vehicle No-Fault law, including but not limited to, all fee schedules.” Id. at 5.
6. The Fourth District Court of Appeal imposed a standard that the “policy must make it inescapably discernable that it will not pay the ‘basic’ statutorily required coverage and will instead substitute the Medicare fee schedules as the exclusive form of reimbursement.” Orthopedic Specialists v. Allstate Ins. Co., 177 So. 3d 19 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1918a]. However, the Third District did not impose such a standard and agreed with Judge May’s dissent. Florida Wellness, 41 Fla. L. Weekly D1619c at 7.
7. The Court finds that METROPOLITAN’s policy is clear and unambiguous and does provide sufficient notice of METROPOLITAN’s intention to limit reimbursement by reference to the schedule of maximum charges as a matter of law, where the policy states that METROPOLITAN “will limit reimbursement of medical expenses under Personal injury Protection Coverage to 80 percent of a properly billed reasonable charge, but in no event will we pay more than 80 percent of the following schedule of maximum charges as set forth in Florida Statute s. 627.736(5)(a)(1).”
8. The policy clearly notifies the insured and provider of METROPOLITAN’s intention to limit payment based on the fee schedule where it states that “in no event” will METROPOLITAN pay more than the schedule of maximum charges. Although the Plaintiff argued that the word “but” created an ambiguity, the Court finds that the word “but” is not a modifier but a clarification of the reimbursement methodology.
9. The Court finds that, consistent with this policy language, METROPOLITAN properly limited all reimbursements to Plaintiff based upon the application of the Schedule of Maximum Charges set forth in section 627.736(5), Florida Statutes (2015).
10. The Court reserves jurisdiction to determine Defendant’s entitlement to attorney’s fees and costs.
