26 Fla. L. Weekly Supp. 915a

Online Reference: FLWSUPP 2611MEGAInsurance — Personal injury protection — Coverage — Medical expenses — Where PIP policy provides that charge submitted for amount less than 200% of allowable amount under Medicare Part B fee schedule shall be paid in amount of charge submitted, insurer was required to pay entire amount of charges that were less than 200% of allowable amount under fee schedule, not 80% of those charges

CHIROPRACTIC CARE OF SW FL, PA, a Florida Corp. (a/a/o Joseph, Megan), Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 17 8720 COCE 51. December 13, 2018. Kathleen McCarthy, Judge. Russel Lazega, Florida Advocates, Dania Beach, for Plaintiff.

ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT

THIS CAUSE having come on to be heard on Plaintiff’s Motion for Motion for Summary Judgment, the Court having been otherwise fully advised in the premises it is hereby,

ORDERED AND ADJUDGED:

1. Plaintiffs Motion is GRANTED as set forth:

2. GEICO’s Florida Policy Amendment FLPIP (01-13) provides, in pertinent part:

PAYMENTS WE WILL MAKE

The Company will pay in accordance with the Florida Motor Vehicle No Fault Law (as enacted, amended, or newly enacted), and where applicable in accordance with all fee schedules contained in the Florida Motor Vehicle No Fault Law, to or for the benefit of the injured person:

(A) Eighty percent (80%) of medical benefits which are medically necessary, pursuant to the following schedule of maximum charges contained in the Florida Statutes §627.736(5) (a)1., (a)2. and (a)3.:

* * *

6. For all other medical services, supplies, and care, 200 percent of the allowable amount under:

(I.) The participating physicians fee schedule of Medicare Part B. . .

* * *

However, if such services, supplies, or care is not reimbursable under Medicare Part B (as provided in section (A) 6. above), we will limit reimbursement to eighty percent (80%) of the maximum reimbursable allowance under workers’ compensation, as determined under Florida Statutes, § 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation is not required to be reimbursed by us.

* * *

A charge submitted by a provider, for an amount less than the amount allowed above, shall be paid in the amount of the charge submitted.

[Bolded emphasis added].

3. Plaintiff contends that the plain language means exactly what it says — GEICO will pay the full amount of any charges that are less than the amounts allowed under the fee schedule payment methodology. GEICO, however, contends that the policy and PIP statute authorize it to pay 80% of the billed amount and that the language has an alternate meaning.

4. It is undisputed that GEICO allowed the full amount charged for CPT Codes 99203, 98941, and 98940, but only paid 80% even though the charge is less than the amount allowed of 200% of Medicare. It is also undisputed that the policy omits 80% in the paragraph “A charge submitted by a provider, for an amount less than the amount allowed above, shall be paid in the amount of the charge submitted,” which is distinct from the other language and paragraphing in the policy, which is emphasized above.¹

5. Defendant argued there was no intent to eliminate the co-insurance provision for any parts of the medical expenses for PIP despite the conflicting language in the policy. Defendant also argued that the PIP statute does not authorize the omission of a co-insurance requirement. In opposition, Plaintiff noted that if GEICO intended to limit coverage, then its poorly drafted language served to defeat this end. Also, the PIP statute is required to be construed liberally in favor of coverage, and, even so, that the PIP statute provides a minimum coverage requirement and the insurer is permitted to grant more coverage that the statutory minimums. See Wright v. Auto-Owners Ins. Co., 739 So.2d 180-1 (Fla. 2d DCA 1999) [24 Fla. L. Weekly D2033a].

6. This Court elects to follow the well-reasoned opinion of Judge Beth Bloom in A&M Gerber Chiropractic LLC a/a/o Conor Carruthers, on behlf of itself and all others similarly situated v. GEICO General Insurance Company, Case No. 16-CV-62610- BLOOM/Valle (S.D. Fla. November 20, 2017) [27 Fla. L. Weekly Fed. D133a]. Judge Bloom in interpreting the text of the actual policy language concluded that it is subject to more than one reasonable interpretation, and therefore, ambiguity exists, which should be construed against the insurer, which drafted the ambiguous policy:

Here, the Court finds the disputed provision is ambiguous and it must, therefore, construe the provision against GEICO and in favor of Plaintiff. As such, the Court holds that, under the disputed provision, when a health care provider bills for covered services in an amount less than 200% of the fee schedule, GEICO is required to pay the charge as billed without any reduction.

. . .

The disputed provision within the FLPIP (01-13) Endorsement that states “[a] charge submitted by a provider, for an amount less than the amount allowed above, shall be paid in the amount of the charge submitted” is interpreted as follows: if a provider submits a bill to GEICO that is less than 200 percent of the applicable fee schedule, GEICO shall pay the provider 100 percent of the amount billed.

1. Therefore, this Court finds that the policy requires that the insurer pay the submitted amount for a charge if it is less than the “amount allowed.” The amount allowed in this policy is the schedule of maximum charges. For the type of services at issue in this case, the relevant portion of the schedule of maximum charges is 200% of Medicare.

2. Furthermore, the policy has listings of the “amount allowed above”:

4. For hospital inpatient services, other than emergency services and care, 200 percent of the Medicare Part A prospective payment applicable to the specific hospital providing the inpatient services.

5. For hospital outpatient services, other than emergency services and care, 200 percent of the Medicare Part A Ambulatory Payment Classification for the specific hospital providing the outpatient service.

6. For all other medical services, supplies, and care, 200 percent of the allowable amount under:

(X.) The participating physicians fee schedule of Medicare Part B, except as provided in sections (II.) and (III.)

(XI.) Medicare Part B, in the case of services, supplies, and care provided by ambulatory surgical centers and clinical laboratories.

(XII.) The Durable Medical Equipment Prosthetics/Orthotics and Supplies fee schedule of Medicare Part B, in the case of durable medical equipment.

Each of the numbered paragraphs above is an “amount allowed” above for the PIP policy, and this language basically mimics the statute: “If a provider submits a charge for an amount less than the amount allowed under subparagraph 1., the insurer may pay the amount of the charge submitted.” In the PIP statute, “the amount allowed under subparagraph 1” correlates to (a)-(f), which is again the listing of the schedule of maximum charges. GEICO changed the permissive “may” to “shall” and is bound by the mandatory language.

1. Again, Plaintiff argued that an insurer is allowed to provide more coverage than the statutory minimums and Plaintiff relied in part on Allstate Ins. Co. v. Holy Cross Hosp., Inc., 961 So.2d 328, 332-33 (Fla. 2007) [32 Fla. L. Weekly S453a], which stated “an insurer could cover medical benefits at 100% instead of the standard 80% required by subsection (1)(a),” as well as Infinity Auto. Ins. Co. v. Sunshine Rehab & Medical, Inc. (a/a/o Osvaldo Borras), 22 Fla. L. Weekly Supp. 675a (Eleventh Cir. Ap. 2015)(citing to State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So. 3d 566, 570 (Fla. 2011) [36 Fla. L. Weekly S469a],” cert. denied, 2015 WL 5834285 (Fla. 3d DCA 2015)), where the appellate court held a PIP policy that separated the terms “80% of medical expenses” and “200 percent” of the Medicare Part B fee schedule by paragraphs in an endorsement is reasonably inferred to cover either 80% of all medical expenses or 100% of 200% of the Medicare Part B fee schedule without a co-pay, whichever is greater.

2. Under Washington Nat’l Ins. Corp. v. Ruderman, 117 So.3d 943, 948 (Fla. 2013) [38 Fla. L. Weekly S511a], and longstanding doctrine in Florida, the Court must construe the policy against the PIP insurer and drafter and in favor of more coverage. It seems obvious, as Plaintiff argued, that construing the policy to the benefit of the insured results in no co-pay for the insured on the most possible occasions; instead of the insured being responsible for any payment, the insurer is fully responsible for the payment.

For instance, under Plaintiff’s interpretation:

CPT Code	Charge/Allowed	200% of Medicare	Insurer Pay	Insured Pay
98940	$52.40	$58.14 ($29.07 is Medicare rate)	$52.40	$0

Under GEICO’s less favorable interpretation:

CPT Code	Charge/Allowed	200% of Medicare	Insurer Pay	Insured Pay
98940	$52.40	$58.14 ($29.07 is Medicare rate)	$41.92	$10.48

In both circumstances above, the provider is entitled to full the submitted amount and the question is who is responsible for the payment. GEICO’s interpretation makes the insured responsible for $10 co-pay, while Plaintiff’s interpretation makes the insured responsible for $0 co-pay. In other words, GEICO would like this Court to adopt an interpretation that least favors the insured, which is contrary to longstanding doctrine in Florida that if there is more than one reasonable interpretation then the policy language must be construed in favor of the most possible coverage to the benefit of the insured.

1. Courts are not permitted to revise an otherwise valid insurance policy to make it more advantageous for the insurer that used imprecise language providing coverage that is greater than coverage the insurer may have originally contemplated. Stack v. State Farm Mut. Auto. Ins. Co., 507 So.2d 617, 619 (Fla. 3d DCA 1987).

Therefore, Plaintiff’s Motion is GRANTED, and this Court finds that consistent with the policy language, case law, lack of any other affirmative defenses raised, public policy, statutes and logic, that GEICO must pay the submitted amount if less than the amount allowed above, which allowed amount is “200% of Medicare” in this instance.

__________________

¹In this case, the policy only inserts 80% prior to (5)(a)1., (a)2., and (a)3., not (a)5. Notably, the relevant language fails under the heading “PAYMENTS WE WILL MAKE.”