25 Fla. L. Weekly Supp. 754b
Online Reference: FLWSUPP 2508OTERInsurance — Personal injury protection — Declaratory action — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — PIP policy that provides for hybrid method of calculating reimbursement utilizing elements from both reasonable amount method and statutory fee schedule method of reimbursement and other elements not authorized by PIP statute does not clearly and unambiguously elect use of statutory fee schedules — Insurer must calculate benefits pursuant to reasonable amount method of reimbursement
SOCC, P.L., d.b.a South Orange Wellness & Injury Center, a.a.o Jaime Otero, Plaintiff, vs. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, County Civil Division. Case No. 16-CC-00928. Division M. Consolidated with the following Division M cases for purposes set forth herein: 15-CC-25323, 15-CC-27381, 15-CC-30056, 15-CC-30668. October 4, 2017. Herbert M. Berkowitz, Judge. Counsel: Christopher P. Calkin, Mike N. Koulianos, and David M. Caldevilla, for Plaintiffs. D. Cassie Bermudez and Wendy L. Pepper, for Defendant.
FINAL DECLARATORY JUDGMENT ONCOMPETING MOTIONS FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on August 23, 2017 concerning: (1) the Plaintiffs’ “Motion for Summary Judgment on Count I of Amended Complaints,” dated June 16, 2017; (2) the Defendant’s “Motion[s] for Final Summary Judgment and Incorporated Memorand[a] of Law,” dated June 16, 2017; and (3) the Defendant’s “Motion to Strike Evidence of Prior Extrinsic Deposition Testimony” dated August 11, 2017. The Court, having considered the motions, the arguments of counsel, the admissible evidence, and the record, and being otherwise advised in the premises,
ORDERED AND ADJUDGED as follows:
1. These five cases1 were consolidated for purposes of the parties’ competing motions for summary judgment concerning the Plaintiffs’ claims for declaratory relief. With respect to the issues presented by those motions, the five cases are identical in all material respects.
2. In each case, Count I of each amended complaint filed by the respective Plaintiffs seeks declaratory and supplemental relief concerning the personal injury protection (“PIP”) benefits calculation methodology set forth in Progressive’s insurance policy. Count II seeks declaratory and supplemental relief concerning Progressive’s reliance upon Medicare’s Multiple Procedure Payment Reduction. At this juncture, the parties’ competing motions for summary judgment are strictly limited to Count I. See, Case Management Order dated August 3, 2017.
3. The issue at the crux of the parties’ competing motions for summary judgment is whether Progressive’s insurance policy invokes the default fact-dependent reasonable amount payment calculation methodology set forth in Section 627.736(5)(a), Florida Statutes (2012-2016), or the alternative permissive “schedule of maximum charges” payment calculation methodology set forth in Section 627.736(5)(a)1-5, Florida Statutes (2012-2016), or a so-called “hybrid” method which includes elements from both of those methods as well as other elements not authorized by Section 627.736, Florida Statutes (2012-2016). Progressive contends that the insurance policy elects a lawful methodology, and the Plaintiffs contend that the insurance policy creates an unlawful methodology, and as a result, the fact-dependent reasonable amount method must be applied as the “default” method.
4. The Court finds that there exists a bona fide controversy for which declaratory relief is available. See, e.g., §§ 86.011, 86.021, 86.031, 86.051, and 86.111, Fla. Stat.
5. Several other judges have previously ruled that Progressive’s insurance policy does not lawfully elect the fee schedule method described in Section 627.736(5)(a)1-5.2 In apparent contrast, the undersigned judge recently ruled that Progressive’s policy “clearly and unambiguously states that [Progressive] will use the fee schedules and payment methodologies in Section 627.736(5)(a)(2) [sic] to determine the reasonable and compensable expenses.” See, Injury Centers of N. Tampa, Inc., a.a.o. Isabella A. Kup-Correia v. Progressive Select Ins. Co., Case No. 16-CC-015807, “Order Granting Defendant’s Motion for Final Summary Judgment and Denying Plaintiff’s Motion for Summary Judgment as to Improper Application of Policy Deductible” (Hillsborough County Ct. July 28, 2017) [25 Fla. L. Weekly Supp. 563a].
6. The decision in Kup-Correia, however, was not intended to interpret the insurance policy’s efficacy other than the application of its’ deductible provisions therein. The Plaintiff in the Kup-Correia case did not present the same arguments and evidence as presented by the Plaintiffs in these consolidated cases. Indeed, the thrust of the Kup-Correia case was whether the insurer correctly applied the deductible selected by the insured to the expenses and losses described in Fla. Stat. 627.736, pursuant to Fla. Stat. 627.739 (the PIP Deductible statute). Kup-Correia was not intended to consider and affirm the enforceability of the policy in question, but only the manner in which the deductible was to be applied under the facts of that particular case.
7. To the extent that the Kup-Correia decision can be read to endorse the insurance carrier’s PIP benefits calculation methodology, this Court hereby recedes from that opinion. Kup-Correia should not be interpreted as applying to any policy provisions other than the policy provision which directly relates to the application of the deductible associated with that specific PIP claim. That decision was not intended to interpret the insurance policy beyond its interplay with the application of statutory deductible provisions.
8. After careful consideration of the arguments and evidence presented in these consolidated cases, this Court adopts the analysis and reasoning of Judge Michael S. Williams in his “Amended Order on Competing Motions For Summary Judgment”, ( Hess Spinal & Medical Centers, Inc., a.a.o. Stefan Iliev v. Progressive American Ins. Co., Case No. 15-CC-16500, Fla., Hillsborough County Ct., Aug. 22, 2017) [25 Fla. L. Weekly Supp. 564a], in which he concludes that Florida law does not authorize the adoption of a hybrid methodology as contained in Progressive’s policy.
9. It is, therefore, the finding of this Court, as well, that Progressive is not authorized to adopt the type of so-called “hybrid” methodology contained in the subject Progressive Insurance Policy. The undersigned hereby concludes that the undisputed material facts herein demonstrate as a matter of law that the Plaintiffs are entitled to declaratory relief against Progressive.
10. Accordingly, the Plaintiffs’ Motions for Summary Judgment on Counts I of the Amended Complaints consolidated herein are hereby GRANTED, and Progressive’s Motions for Final Summary Judgment are hereby DENIED. For the reasons expressed on the record at the hearing, the Defendant’s Motion to Strike Evidence of Prior Extrinsic Deposition Testimony is hereby also DENIED.
11. With respect to the claims for declaratory relief set forth in Count I of the Plaintiffs’ Amended Complaints, this Court hereby enters Final Declaratory Judgment in favor of the Plaintiffs and against Defendants, and determines and declares as a matter of law as follows:
(a) The Defendant, Progressive Select Insurance Company’s policy does not clearly and unambiguously invoke the statutorily authorized so-called fee schedule method of calculating PIP benefits to the exclusion of other methods.
(b) With respect to PIP claims submitted under the subject Insurance Policy, Progressive is not lawfully authorized to calculate PIP claims pursuant to the PIP benefits calculation methodology described in that policy, and must instead calculate such claims pursuant to the fact-dependent reasonable amount method described in Section 627.736(5)(a), by default.
12. As stated above, this Opinion is strictly limited to Count I of these Amended Complaints. The effect that this Ruling may have on Count II of these Amended Complaints is not decided or considered herein, and such consideration of these consolidated second Counts is hereby deferred for a later hearing thereon.
13. This Court defers its determination of the Plaintiffs’ claims for supplemental relief, reasonable attorneys’ fees, and costs, pending the conclusion of the entirety of this case, and reserves jurisdiction on these matters, accordingly.
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1In Case No. 16-CC-00928, is the Plaintiff SOCC, P.L. (“SOCC”), the insured patient is Jaime Otero, and the Defendant is Progressive Select Insurance Company (“Progressive”). In Case No. 15-CC-25323, the Plaintiff is Hess Spinal & Medical Centers, P.A. (“Hess”), the insured patient is Michael Jackson, and the Defendant is Progressive. In Case No. 15-CC-27381, the Plaintiff is Hess, the insured patient is Kirby Troyer, and the Defendant is Progressive. In Case No. 15-CC-30056, the Plaintiff is Hess, the insured patient is Nadhia Vega, and the Defendant is Progressive. In Case No. 1 5-CC-30668, the Plaintiff is SOCC, the insured patient is Jesus Cruz, and the Defendant is Progressive.
2 Hess Spinal & Medical Centers, Inc., a.a.o. Stefan Iliev v. Progressive American Ins. Co., Case No. 15-CC-16500, “Order on Competing Motions for Summary Judgment” (Fla. Hillsborough County Ct. Jan. 9, 2017) (Hon. Michael S. Williams) ; Hess Spinal & Medical Centers, Inc., a.a.o. Stefan Iliev v. Progressive American Ins. Co., Case No. 15-CC-16500, “Amended Order on Competing Motions for Summary Judgment” (Fla. Hillsborough County Ct. Aug. 22, 2017) (Hon. Michael S. Williams); Hess Spinal & Medical Centers, Inc., a.a.o. Stefan Iliev v. Progressive American Ins. Co., Case No. 15-CC-16500 [25 Fla. L. Weekly Supp. 564a], “Final Declaratory Judgment” (Fla. Hillsborough County Ct. Aug. 22, 2017) (Hon. Michael S. Williams); Interventional Spine Center, LLC, a. a. o. Pascal Files-Aime v. Progressive American Ins. Co., 23 Fla. L. Weekly Supp. 610a (Fla. Miami-Dade County Ct. Oct. 7, 2015) (Hon. Caryn C. Schwartz); Progressive Select Insurance Company v. Neurology Partners, P.A., d.b.a. Emas Spine & Brain Specialists, a.a.o. Phyllis Easley, Case No. 16-2016-AP-61, (Fla. 4th Cir. Ct., App. Div., Sept. 7, 2017)(Hon. Susanne Bass); Broward Rehab Center, Inc., a.a.o. Renarda L. Lewis v. Progressive Select Ins. Co., Case No. 14-12432-COSO-61, “Order Denying Defendant’s Motion for Final Summary Judgment Regarding the Application of Multiple Procedure Payment Reduction (‘MPPR’) Edits,” (Fla. Broward County Ct. April 12, 2016) (Hon. Arlene Simon Backman); Neurology Partners, P.A., d.b.a. Emas Spine & Brain, a.a.o. Arkeelia Evans v. Progressive Select Ins. Co., Case No. 16-2015-SC-5526 (CC-D), “Order on Cross-Motions for Summary Judgment,” (Fla. Duval County Ct. July 22, 2016) (Hon. Lester Bass); Hollywood Diagnostics Center, Inc., a.a.o. Manuel Salinas v. 21st Century Centeninal Ins. Co., 24 Fla. L. Weekly Supp. 731b (Fla. Broward County Ct. Aug. 17, 2016) (Hon. Robert W. Lee); Neurology Partners, P.A., d.b.a. Emas Spine & Brain Specialists, a.a.o. Heather Tyrie v. Progressive American Ins. Co., Case No. 16-2016-SC-89 (CC-J), “Order on Cross-Motions for Summary Judgment” (Fla. Duval County Ct. August 18, 2016) (Hon. Eleni Derke); Sea Spine Orthopedic Institute, LLC, a.a.o. Maria Garzon v. Progressive American Ins. Co., Case No. 2016-CC-1536-O, “Order on Cross-Motions for Summary Judgment” (Fla. Orange County Ct. Nov. 18, 2016) (Hon. Dejuras Bigney); Advantacare of Florida, LLC, a.a.o. Danely Abreu v. Progressive American Ins. Co., 25 Fla. L. Weekly Supp. 61a (Fla. Volusia County Ct. March 17, 2017) (Hon. Shirley Green); Sea Spine Orthopedic Institute, LLC, a.a.o. Myriam Ortiz v. Progressive American Ins. Co., Case No. 2016-CC-7787-O, “Order on Cross-Motions for Summary Judgment” (Fla. Orange County Ct. May 11, 2017) (Hon. Eric H. Dubois); PIP Medical Consultants, LLC a.a.o. Rhonda Teitelbaum v. Progressive American Ins. Co., Case No. 16-15313, “Order on Cross-Motions for Summary Judgment” (Miami-Dade County Ct. June 28, 2017) (Hon. Wendell M. Graham).
