25 Fla. L. Weekly Supp. 640a
Online Reference: FLWSUPP 2507PANInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Policy at issue failed to reflect clear and unambiguous election by insurer to limit reimbursement to statutory fee schedules
PAN AM DIAGNOSTIC SERVICES INC., Plaintiff, v. SECURITY NATIONAL INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2016-SC-004834-O. September 20, 2017. David P. Johnson, Judge. Counsel: Dave T. Sooklal, Anthony-Smith Law, P.A., Orlando, for Plaintiff. Melody Shere Elam, Law Offices of Christina M. Sanabria, Maitland, for Defendant.
REVERSED. FLWSUPP 2709WELL
ORDER ON PLAINTIFF’S MOTION FORFINAL SUMMARY JUDGMENT
This cause having come before this court on Plaintiff’s Motion for Final Summary Judgment, and the Court having reviewed the file and being fully advised in the premises, it is
ORDERED and ADJUDGED as follows:
That the Plaintiff’s Motion for Final Summary Judgment is GRANTED and the Defendant’s competing Motion for Summary Judgment on this same issue is therefore DENIED.
The issue in this case is whether or not the portion of the Defendant’s policy that explains the benefits due for personal injury protection (PIP) in the event of an auto accident properly elects the fee schedules contained in Fla. Stat. §627.736(5). Part “C” of the policy addresses PIP coverage. The very first subsection of Part “C” appears on page 18 of the policy and states that the Defendant will pay “Eighty percent of reasonable expenses for medically necessary [treatments].” No further explanation or limitations are contained in this portion of the policy. The next section of Part “C” appears on page 21 and is labeled “Extended Personal Injury Coverage.” Once again, this section states that the Defendant will pay “Eighty percent of’ reasonable expenses for medically necessary [treatments]” and contains no further explanation or limitations. The first mention of any fee schedule comes in the section of Part “C” labeled “Additional Definitions Under Part C” and appears on page 23 of the policy. The first reference to any fee schedule appears on page 25 under “Reasonable Expenses” and simply says that “reasonable expenses shall be the lesser of the amount provided by any fee schedule (emphasis added) or schedule of payment, whether mandatory or permissive, as contained in the Florida Motor Vehicle No-Fault (§§ 627.730-627.7405, Florida Statutes).” This section fails specifically invoke the fee schedule contained in Fla. Stat. §627.736(5), only referring to “any fee schedule” that may be contained in a number of subsections of Chapter 627, Florida Statutes. The policy eventually gets around to including. the language regarding fee schedules contained in Fla. Stat. §627.736(5) near the end of Part “C” in a section labeled “Limits of Liability.” This section appears on page 26, but the specific language appears on pages 27 and 28. Even though this is where we find the statutory language, the policy still doesn’t refer to Fla. Stat. §627.736(5) specifically.
In Geico General Insurance Co. v. Virtual Imaging Services, Inc., 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a] and again in Allstate Insurance Co. v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a], the Florida Supreme Court mandated that insurers must make a clear and unambiguous election of the payment methodology they intend to use in the payment of PIP claims. Both of these cases specifically dealt with the “fee schedule” language contained in Fla. Stat. §627.736(5). The failure of the Defendant’s policy to elect the fee schedules at issue in the very beginning of its explanation of PIP benefits in Part “C,” and only adding the language seemingly as an afterthought, in the Court’s opinion, does not equal the “clear and unambiguous” election of the fee schedule envisioned by the Supreme Court in Virtual Imaging and Orthopedic Specialists. It is certainly reasonable to conclude that the policy language in this case allows the Defendant its choice of reimbursement method.
