25 Fla. L. Weekly Supp. 50a
Online Reference: FLWSUPP 2501CASAInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy that not only complies with notice provision of section 627.736(5)(a)5 but also clearly advises that insurer will limit reimbursement to schedule of maximum charges provided sufficient notice of insurer’s intent to limit reimbursement to permissive statutory fee schedule
NEUROLOGY PARTNERS, P.A., d/b/a EMAS SPINE & BRAIN SPECIALISTS as assignee for Jeremy Casado, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County, Civil Division. Case No. 16-2016-SC-0262, Division CC-H. March 24, 2017. Kelly E. Eckley, Judge. Adam Saben, Shuster & Saben, Jacksonville, for Plaintiff. James C. Rinaman, III, Dutton Law Group, Jacksonville, for Defendant.
AMENDED ORDER ON CROSS-MOTIONS FORSUMMARY JUDGMENT(AMENDED AS TO DEFENDANT)
THIS CAUSE came before the Court on Cross-Motions for Summary Judgment by Plaintiff and Defendant. Having heard the arguments of counsel, reviewed the policy at issue and the pertinent case law, the Court makes the following findings and rulings:
1. The facts are not in dispute and the resolution of the issue is purely a matter of law.
2. Section 627.736, Florida Statutes (the “PIP Statute”) describes two separate and distinct payment methodologies for PIP benefits. The first is found in section 627.736(5)(a) Fla. Stat. (2013) and requires insurers to pay for PIP medical benefits rendered to the insured based on a fact-intensive analysis of the “reasonable” amount of the charges. This is the default methodology. See Allstate Fire & Casualty Ins. Co v. Stand-Up MRI of Tallahassee, P.A. 188 So. 3d. 1, 2 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D693b]. The second methodology is set forth in section 627.736(5)(a)1 and allows insurers to pay for PIP medical benefits at the ceiling of the “schedule of maximum charges” which includes 200 percent of the Medicare B fee schedule. Id at 3. This is a permissive payment method.
3. The relevant portion of the Progressive policy at issue states:
UNREASONABLE OR UNNECESSARY MEDICAL BENEFITS
If an insured person incurs medical benefits that we deem to be unreasonable or unnecessary, we may refuse to pay for those medical benefits and contest them.
We will determine to be unreasonable any charges incurred that exceed the maximum charges set for the in Section 627.736(5)(a)(1)(a through f) of the Florida Motor Vehicle No-Fault Law, as amended. Pursuant to Florida law, we will limit reimbursement to, and pay no more than, 80 percent of the following schedule of maximum charges:
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f. For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians fee schedule of Medicare Part B. . .
4. In the instant case, the Court has been called upon to determine the applicability of the Virtual Imaging’s1 “clear and unambiguous election” requirement in light of the 2012 amendments to Section 627.736(5)(a)5, which states in relevant part:
An insurer may limit payment [to the Medicare fee schedule method] only if the insurance policy includes a notice at the time of issuance or renewal that the insurer may limit payment pursuant to the schedule of charges specified in this paragraph. A policy form approved by the [Office of Insurance Regulation] satisfies this requirement. [Emphasis added].
5. To the contrary, the 2008 version of the statute simply stated:
If an insurer limits payment as authorized by subparagraph 2 [which sets for the fee schedules], the person providing such services, supplies, or care may not bill or attempt to collect from the insured any amount in excess of such limits, except for amounts that are not covered by the insured’s personal injury protection coverage due to the coinsurance amount or maximum policy limits.
6. Although Virtual Imaging was decided after the 2012 amendments to Section 627.736(5)(a)5, the policy at issue in the Virtual Imaging case pre-dated the 2012 amendments and was governed by the 2008 statute. The Supreme Court limited its application in Virtual Imaging to policies which pre-dated July 1, 2012, the effective date of the 2012 statutory change. The Supreme Court stated:
Because the GEICO policy has since been amended to include an election of the Medicare fee schedules as the method of calculating reimbursements, and the Legislature has now specifically incorporated a notice requirement in to the PIP statute, effective July 1, 2012, see §627.736(5)(a)(5)., Fla. Stat. (2012), our holding applies only to policies that were in effect from the effective date of the 2008 amendments to the PIP statute that first provided for the Medicare fee schedule methodology, which was January 1, 2008, through the effective date of the 2012 amendment, which was July 1, 2012.
(Emphasis added).
7. This Court has reviewed and adopts the reasoning of Judge Eric Roberson, Duval County Judge in his “Order on Cross-Motions for Summary Judgment” in Alterman & Johnson Family Chiropractors, P.A., a/a/o Ameila Brangenberg v. Progressive Insurance Company., 16-2016-SC-000586 (Duval County, September 19, 2016) [24 Fla. L. Weekly Supp. 533a]. As Judge Roberson stated, “the Legislature’s use of the word “may” at two points [in the 2012 amendment] shows that it intended to give insurers broad leeway in choosing the Medicare fee schedule methodology.”
8. When the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent. See Lee County Elec. Coop., Inc. v. Jacobs, 820 So. 2d 297, 303 (Fla. 2002) [27 Fla. L. Weekly S379a]. In such instance, the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent. See State v. Burris, 875 So. 2d 408, 410 (Fla. 2004) [29 Fla. L. Weekly S149a]. When the statutory language is clear, “courts have no occasion to resort to rules of construction-they must read the statute as written, for to do otherwise would constitute an abrogation of legislative power.” Nicoll v. Baker, 668 So. 2d 989, 990-91 (Fla. 1996) [21 Fla. L. Weekly S96a]. However, if the statutory intent is unclear from the plain language of the statute, then “we apply rules of statutory construction and explore legislative history to determine legislative intent.” BellSouth Telecomms., Inc., 863 So. 2d at 289
9. In reviewing the applicable 2012 Fla. Stat. §627.736(5)(a)(5), the Court finds the language of the Statute to be clear and unambiguous. Accordingly, the 2012 amendment to the statute represents a clear departure from the judicially created notice requirement announced in Virtual Imaging. It therefore becomes apparent, with the 2012 amendment to the PIP statute, the Legislature did not intend to mandate the use of the Medicare Part B Fee Schedule in all PIP policies. Instead, it permits an insurer the option to utilize 200 percent of Medicare Part B Fee Schedule as a limitation on its payments.
10. The Plaintiff argued that, while the policy at issue establishes it will not pay any amount above the fee scheduled amount, there is nothing in the policy language that prevents the Defendant from paying amounts less than the fee schedule. However, a PIP policy cannot contain a statement that the insurer will not pay 80 percent of reasonable charges, because no insurer can disclaim the PIP statute’s reasonable medical expenses coverage mandate. See, Virtual Imaging, 141 So. 3d at 155.
11. The policy at issue not only complies with the Notice Provision of § 627.736(5)(a)5., but also goes beyond advising the insured that it will limit reimbursement to the schedule of maximum charges.
WHEREFORE, it is hereby
ORDERED AND ADJUDGED that:
1. The Defendant’s Motion for Summary Judgment is hereby GRANTED.
2. The Plaintiff’s Motion for Summary Judgment is hereby DENIED.
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1See Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So. 3d 147, 158 (Fla. 2013) [38 Fla. L. Weekly S517a].
