25 Fla. L. Weekly Supp. 807b
Online Reference: FLWSUPP 2509LOWEInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedule — Clear and unambiguous election by insurer — Policy at issue provided clear and unambiguous notice of insurer’s intent to limit reimbursement to the schedule of maximum charges found in No-Fault Law
RIVERSIDE SPINE & PAIN PHYSICIANS, LLC as assignee for JOANNE LOWELL, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court in and for Duval County. Case No. 162016SC006389XXXXMA, Division H. October 27, 2017. Kelly E. Eckley, Judge. Counsel: William Gutek, for Defendant. Adam Saben, for Plaintiff.
ORDER GRANTING DEFENDANT’S MOTION FORSUMMARY JUDGMENT AND DENYING PLAINTIFF’SMOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court on October 4, 2017 upon Cross Motions for Summary Judgment on the issue of whether Defendant’s 9810A policy of insurance clearly and unambiguously elects to limit reimbursement to the schedule of maximum charges found in Fla. Stat. § 627.736(5)(a)1, the Court having reviewed both respective Motions, heard argument of counsel, and after otherwise being fully advised in the premises, finds as follows:
The standard for summary judgment is well known and need not be set forth at length. Moreover, the issue before the Court is not factual but deals with the legal interpretation of a contract. Because State Farm drafted the contract at issue, any ambiguities would be held against it. This is consistent with the well-known standard in summary judgment that issues be viewed in the light most favorable to the non-moving party.
In 2012, the Florida Legislature amended the PIP statute to include express directives as to how a carrier can adopt the Schedule of Maximum Charges (the “Schedule”). The policy in this case is governed by this newer provision, Fla. Stat. § 627.736(5)(a)(5) which provides:
Effective July 1, 2012, an insurer may limit payment as authorized by this paragraph 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 satisfies this requirement. . .
“[T]he PIP statute sets forth a basic coverage mandate: every PIP insurer is required to — that is, the insurer ‘shall’ — reimburse eighty percent of reasonable expenses for medically necessary services.” Geico General Insurance Co. v. Virtual Imaging Services, Inc., 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]. This provision is the heart of the PIP statute’s coverage requirements. Virtual Imaging, 141 So.3d 155. Plaintiff’s position is that State Farm’s policy is ambiguous, arguing that the policy refers to both the “reasonableness” method of calculation and the Schedule. However, Plaintiff’s position misconstrues Virtual Imaging because a PIP policy cannot contain a statement that the insurer will not pay eight [sic] percent of reasonable charges because no insurer can disclaim the PIP statute’s reasonable medical expenses coverage mandate. See Allstate Ins. Co. v. Orthopedic Specialists, No. SC15-2298 (Fla. 2017) [42 Fla. L. Weekly S38a].
Plaintiff contends that one payment methodology must be chosen to the exclusion of the other. However, this Court rejects Plaintiff’s argument as the Schedule is a payment limitation that works in conjunction with the mandatory reasonable medical expenses coverage mandate. State Farm’s policy is clear and unambiguous as it provides the insurer with notice that it will pay 80% of a properly billed and documented reasonable charge, but in no event will they pay more than 80% of the Schedule of Maximum Charges.
This Court further relies upon the recent Supreme Court decision Allstate Ins. Co. v. Orthopedic Specialists, No. SC15-2298 (Fla. 2017) [42 Fla. L. Weekly S38a]. The Supreme Court has clarified that an “election” of the Schedule is an election of a “payment limitation” option. See Orthopedic Specialists. There, the Court found that an election of the Schedule of Maximum Charges concerns only the election of a limitation on payment — as opposed to the election of an overall or exclusive payment methodology applicable to all PIP medical payments. The Schedule is simply an electable “cap” on payments. Accordingly, State Farm may limit reasonable reimbursements based on the Schedule as a matter of law.
Additionally, the Supreme Court clarified that the Section 5(a) schedules (including the “various federal and state medical fee schedules applicable to automobile and other insurance coverages”) “do not operate as ‘limitations’ on charges.” Id. Rather, they are “various relevant factors” that may be considered in determining the reasonableness of a charge for medical services. Id. State Farm’s definition of “reasonable charge” appropriately lists these factors as “various relevant factors” that may be considered in determining the reasonableness of charges and it does not create ambiguity as the policy is very clear that State Farm will in no event pay more than 80% of the Schedule of Maximum Charges. It is therefore:
ORDERED and ADJUDGED that
1. Defendant’s Motion for Summary Judgment is GRANTED;
2. Plaintiff’s Motion for Summary Judgment is DENIED;
3. This Court shall retain jurisdiction of this case for entry of further orders that are proper including, but not limited to any motion to tax costs, and attorney’s fees, and interest.
