25 Fla. L. Weekly Supp. 509e
Online Reference: FLWSUPP 2506SJORInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges
PROGRESSIVE SELECT INSURANCE COMPANY, Appellant, v. EMERGENCY PHYSICIANS OF CENTRAL FLORIDA, LLP, a/a/o Samantha Jordan, Appellee. Circuit Court, 18th Judicial Circuit (Appellate) in and for Seminole County. Case No. 13-44-AP. L.T. Case No. 2008-SC-004256. PROGRESSIVE SELECT INSURANCE COMPANY, Appellant, v. EMERGENCY PHYSICIANS OF CENTRAL FLORIDA, LLP, a/a/o ELIZABETH FIGUEROA, Appellee. Case No. 13-47-AP. L.T. Case No. 2009-SC-001551. November 12, 2015. Appeal from the County Court for Seminole County, Honorable Jerri L. Collins, Judge. Counsel: Betsy E. Gallagher and Michael C. Clarke, Kubicki Draper, P.A., Tampa, for Appellant. Chad A. Barr, Law Office of Chad A. Barr, P.A., Altamonte Springs; and Thomas A. Player, Thomas Andrew Player, P.A., Winter Park, for Appellees.
[Editor’s note: The Fifth DCA accepted certiorari review and quashed portions of this opinion: “Accordingly, we grant Progressive’s petition and quash that part of the decision under review that prohibits Progressive from engaging in discovery and contesting the reasonableness of EPCF’s bill.” 41 Fla. L. Weekly D2145a.]
(RECKSIEDLER, J.) The Appellant, Progressive Select Insurance Company (Progressive) seeks review of the trial court’s entry of summary judgment in favor of the Appellee, Emergency Physicians of Central Florida, LLP (EPCF) in each case below. The Court dispenses with oral argument pursuant to Fla. R. App. P. 9.320.
BACKGROUND
This is a consolidated appeal arising from two separate lawsuits filed by EPCF. Samantha Jordan (Jordan) and Elizabeth Figueroa (Figueroa) each held insurance policies with Progressive and were involved in separate automobile accidents in 2008. Both insurance policies stated that Progressive would pay medical expenses under PIP coverage at “80% of all reasonable expenses incurred.” Jordan and Figueroa were each treated in the Emergency Department of South Lake Hospital, where EPCF provided medical services, and Progressive subsequently received bills from EPCF for the services rendered. On each bill, Progressive issued payment for one CPT code at 80% of 200 percent of the Medicare Part B Fee Schedule. Progressive never stated in the insurance policies that it had elected to utilize the fee schedule pursuant to section 627.736(5)(a)2, Fla. Stat. (2008), nor did it advise EPCF pre-suit that it was adjusting the claim pursuant to factors set forth in section 627.736(5)(a)1.1
EPCF subsequently brought suit against Progressive based on the reduction of its bills. In each case, Progressive filed an Answer and Affirmative Defenses. In both cases, Progressive affirmatively alleged that the charges for the claimed medical expenses were unreasonable, and in the Figueroa case, Progressive also affirmatively alleged that the charges were properly reimbursed to a maximum allowable amount of 200% under the Medicare Part B Fee Schedule.
After the deposition of Dr. Moskowitz, the treating physician for each of the insureds, EPCF filed a Motion for Summary Judgment in each case, arguing that Progressive had waived its ability to raise the issue of reasonableness of the charges when it used the fee schedule after failing to specifically make that election in its policy. EPCF further argued that it had provided undisputed evidence as to whether the medical services were reasonable, related, and necessary, and thus there was no remaining material issue of fact for a jury to decide.2 Progressive argued that its failure to elect the fee schedule under (5)(a)2 did not preclude it from subsequently arguing the reasonableness of costs under the (5)(a)1 factors.
The trial court found that there was sufficient record evidence, and no evidence in opposition, to the related and necessary nature of the medical visits. In addition, the trial court found that, because Progressive had improperly used the fee schedule without having made such an election, it was barred from attempting to contest the reasonableness of the charges as a matter of law. Based on these findings, the trial court held that there were no genuine issues of material fact with regard to reasonable, related and necessary and granted summary judgment for EPCF in both cases. Progressive now appeals those orders.
DISCUSSION
A trial court’s ruling on a motion for summary judgment is reviewed de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a].
Election of Payment Method and Use of Medicare Part B Fee Schedule
Progressive’s first argument on appeal is that the trial court erred in determining that Progressive had made an irrevocable election to pay EPCF’s bill under § 627.736(5)(a)2, and was therefore precluded from attempting to defend against EPCF based on the reasonableness of the bill under § 627.736(5)(a)1.
Under Florida’s No-Fault Insurance Law, § 627.736(1), Fla. Stat., a PIP insurer is obligated to pay “[e]ighty percent of all reasonable expenses” incurred by the insured. In GEICO Gen. Ins. Co. v. Virtual Imaging Servs., Inc., 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a], the Florida Supreme Court explained that § 627.736 provides two means for determining what is a reasonable and necessary medical expense. Section 627.736 (5)(a)1 sets forth several factors that may be considered in determining the reasonableness of medical expenses. Id. at 155. Alternately, under § 627.736(5)(a)2, the Legislature provided that the insurer may limit reimbursement to 80 percent of a defined schedule of maximum charges. Id. at 156.
In order to pay in accordance with the fee schedule limitation, however, the insurer must clearly and unambiguously select that payment methodology such that the insured and medical providers are aware of it. Id. When an insurer pays pursuant to the fee schedule, where such schedule is not elected, it is a breach of policy, making the insurer liable for the full amount available under the policy. Id.; Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So. 3d 63, 68 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a]; Geico Indem. Co. v. Virtual Imaging Servs., Inc., 79 So. 3d 55, 58 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a].
In the case at hand, Progressive admits that it did not elect the fee schedule in its policy. However, Progressive argues that, unlike the insurers in GEICO and Kingsway, supra, it did not stipulate to the reasonableness of the fees in question. Progressive argues that those cases therefore do not foreclose the insurer’s ability to argue reasonableness of the charges under (5)(a)1, in the absence of such a stipulation.
Progressive contends that it was entitled to use the Medicare Part B Fee Schedule as part of its original determination of reasonableness under (5)(a)1, and that it has done so since 2005, three years prior to the amendment in the statute and the enactment of (5)(a)2. However, it is clear that Progressive did not make any such bona fide determination of reasonableness based on the enumerated factors, but rather relied solely on the fee schedule as a direct method of reimbursement. Progressive’s suggestion that it was simply continuing to use the fee schedule to determine reasonableness and not as an elective payment methodology is unpersuasive. Rather, this argument tends to indicate that Progressive has merely continued to use the unilateral fee schedule payment methodology in spite of the changes in both statute and case law.
Furthermore, the claims representative for Progressive in the Figueroa case clearly indicated in her deposition that Progressive had paid according to (5)(a)2.f because the services provided were not emergency services under (5)(a)2.c. Thus, Progressive clearly intended to utilize the fee schedules and limitations under some portion of (5)(a)2, despite the fact that it had not specifically stated such an election in its policy. To now allow Progressive to argue an original intent to utilize the fee schedule merely as one of the (5)(a)1 factors would fly in the face of the testimony of its own representative.
If this Court accepts Progressive’s position, the need for specific policy language making a payment methodology election, as held by the Florida Supreme Court in GEICO, would be rendered moot. In such a case, insurers could pay under the fee schedule, be found in breach, and then still get their day in court to argue reasonableness. Instead, this Court finds that by paying under the fee schedule, where the policy does not specifically make such an election, the insurer is subsequently precluded from switching legal positions and attempting to argue reasonableness under the (5)(a)1 factors as a defense.3 Progressive chose to limit the payment in this case to 200% of the Medicare Part B Fee Schedule, knowing that its policy language did not permit such a payment methodology. It did so at its own risk and should properly be required to pay the maximum potential under the policy.
Pending Discovery
Progressive also argues that the granting of summary judgment was improper where there was still discovery pending.
The fact that discovery is pending in a case does not automatically serve to preclude summary judgment. See Cong. Park Office Condos II, LLC v. First-Citizens Bank & Trust Co., 105 So. 3d 602 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D145a], reh’g denied (Feb. 13, 2013). Specifically, where the outstanding discovery request would not lead to evidence creating a material issue of fact, then summary judgment may properly be granted. Id. at 607-08.
Although not specifically requesting a continuance, Progressive clearly raised the issue of pending discovery at the hearing on summary judgment, thus preserving the issue for appeal. However, the attorney for Progressive, in the Figueroa case, admitted that discovery issues might not be relevant if reasonableness has been waived based on failure to use election language in the policies. Because this Court finds that Progressive is precluded from arguing reasonableness of the charges under (5)(a)1, any pending discovery issues are irrelevant, and the trial court was not prohibited from entering summary judgment on this basis.
Burden of Proof
Progressive’s final argument on appeal is that EPCF has failed to meet its burden of conclusively establishing no material issue of fact as to the reasonableness of its charges.
Progressive accurately states that the burden of proving reasonableness of the charges lies with the plaintiff in a PIP claim. Derius v. Allstate Indem. Co., 723 So. 2d 271, 272 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a] (“There is nothing in the PIP statute suggesting a legislative intent to alter the normal dynamics of a lawsuit by placing the burden on the defendant in a PIP case to prove that a proposed charge was unreasonable or that a given service was not necessary.”); State Farm Mut. Auto. Ins. Co. v. Sestile, 821 So. 2d 1244, 1246 (Fla. 2d DCA 2002) [27 Fla. L. Weekly D1757a] (“If an insurer refuses to pay medical expenses that an insured believes are reasonable, the insured may sue, but he or she bears the burden of establishing that the charges are, in fact, reasonable.”).
Since the Derius decision, the fee schedule language has been added to § 627.736 and various courts have addressed the requirement of specific policy language in choosing a payment method, as noted above. While these cases do limit the insurer’s ability to rebut the claims of reasonableness, they do not alter the initial burden of proof, which remains with the plaintiff.
In the case at hand, no testimony has been provided by either party as to the reasonableness of the amount charged. The affidavit of Dr. Moskowitz, provided by EPCF, only addresses the reasonableness of the services, not the charges. Although EPCF argues that the bill itself is prima facie evidence that the charge is reasonable, the cases cited by EPCF are factually distinct from the case at hand and do not support the notion that the provider’s bill alone is prima facie evidence of reasonableness of the charge in a PIP claim. If this were the case, medical providers could charge any amount they desire under the guise of reasonableness.
While it is unlikely that Progressive will be able to rebut the reasonableness of the charges in question on remand as it is precluded from using evidence under the (5)(a)1 factors, the burden of proof remains with EPCF to make the required initial showing of reasonableness. Because EPCF has failed to meet this burden, Summary Judgment is reversed and the cause is remanded for further proceedings.
Attorney’s Fees
Appellant, Progressive’s, Motion for Provisional Award of Appellate Attorney’s Fees is remanded for hearing as to both entitlement and amount of award, if any. Appellee, EPCF’s, Motion for Award of Appellate Attorney’s Fees is denied.
REVERSED and REMANDED.
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1Section 627.736, Fla. Stat. has subsequently been modified such that the factors are enumerated under (5)(a) and the fee schedule limitations are listed under (5)(a)1, although the content at issue remains identical. § 627.736, Fla. Stat. (2013). This Court will refer to the 2008 version of the statute and (5)(a)1 and (5)(a)2 for the sake of consistency throughout the court file.
2After discovery began, EPCF filed an initial Motion for Summary Judgment in each case. The trial court denied the Motions for Summary Judgment, holding that the issue of whether the insureds’ trips to the emergency room were reasonable, related and necessary was a matter of fact for the jury to decide. In the Jordan case, EPCF filed a second Motion for Summary Judgment, and the trial court granted partial summary judgment, finding that Progressive had waived its ability to argue reasonableness of the charges, but holding that there was still an issue as to whether the treatment itself was reasonable, related and necessary. No intermediate partial summary judgment was granted in the Figueroa case.
3Progressive argues that under election of remedies, it may choose its method for defending the reasonableness of the charges, even if those methods are inconsistent. Fla. R. Civ. P. 1.110(g); Johnson v. State Dept. of Health & Rehabilitative Servs., 695 So. 2d 927, 930 (Fla. 2d DCA 1997) [22 Fla. L. Weekly D1554a]; Innovative Material Sys., Inc. v. Santa Rosa Utils., Inc., 721 So. 2d 1233, 1233 (Fla. 1st DCA 1998) [24 Fla. L. Weekly D82f]. However, “[i]f the remedy sought in the first instance does not exist at the time it is sought, then there Is no election of remedies.” Rolf’s Marina, Inc. v. Rescue Serv. & Repair, Inc., 398 So. 2d 842, 843 (Fla. 3d DCA 1981).
