26 Fla. L. Weekly Supp. 124a
Online Reference: FLWSUPP 2602FREMInsurance — Personal injury protection — Deductible — Statute requires that deductible be applied to 100 percent of reasonable expenses — Insurer properly applied deductible to amount calculated pursuant to statutory fee schedules, rather than to total amount billed by provider — Question certified: Pursuant to sections 627.736 and 627.739, Florida Statutes (2010), is an insurer required to apply a policy deductible to the total amount of a provider’s invoices to an insurer prior to applying any fee schedule found in § 627.736?
COMPREHENSIVE HEALTH CENTER LLC. a/a/o Rose M. Fremont, Plaintiff, vs. ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 15-006536-SP-05 (06). April 9, 2018. Gina Beovides, Judge. Counsel: Richard Doherty, Richard Doherty, P.A., for Plaintiff. Gladys Perez Villanueva, Shutts & Bowen LLP, Miami, Defendant.
FINAL JUDGMENT IN FAVOR OF THE DEFENDANT
THIS CAUSE came before the Court on March 21, 2018, and the court having heard argument of counsel on the above parties’ Cross Motions for Summary Judgment wherein Plaintiff, Comprehensive Health Center, LLC (a/a/o Rose M. Fremont), was represented by Richard E. Doherty, Esq. of Law Offices of Richard E. Doherty, P.A. and Defendant, Allstate Property and Casualty Insurance Company, was represented by Gladys Perez Villanueva, Esq. of Shutts & Bowen. The Court Grants Defendant’s Motion for Summary Judgment and Denies Plaintiff’s Motion for Summary Judgment; and being otherwise duly advised in the matter, makes the following findings of fact and conclusions of law and, pursuant to Florida Rule of Appellate Procedure 9.160(e), and certifies the sole legal question before this Court as a Question of Great Public Importance.Findings of Fact and Conclusions of Law
The sole legal issue presented by this case is the proper methodology for applying the deductible to reimbursements under Florida’s No-Fault Statute in connection with policies of automobile insurance that provide legally sufficient notice of the insurer’s election to utilize the statutorily authorized reimbursement limitations set forth in section 627.736(5)(a)(2.), Florida Statutes (2010) (“Fee Schedules”), pursuant to Geico General Insurance Company v. Virtual Imaging Services, Inc., 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]. Plaintiff submitted medical bills to Allstate for services rendered to Ms. Fremont, totaling $705.00. Allstate initially determined the covered reasonable expenses (i.e., the “covered amount”) pursuant to the Fee Schedules and Allstate’s Policy. For the treatment and services rendered to Ms. Fremont and at issue in this case, the covered amount calculated pursuant to the Fee Schedules totaled $583.46. Allstate next subtracted the $500.00 policy deductible from 100 percent of this covered amount. Allstate then calculated payment to the Plaintiff based upon 80 percent of the remaining covered amount and paid $66.77.
There is no dispute as to the methodology that Allstate employed in applying the deductible. However, Plaintiff maintains that Allstate should have applied the deductible to the amount billed, i.e., the $705.00, prior to applying the Fee Schedules to its bills.The PIP Statute
This issue is governed by section 627.739(2), which states in relevant part,
Insurers shall offer to each applicant and to each policyholder, upon the renewal of an existing policy, deductibles, in amounts of $250, $500, and $1,000. The deductible amount must be applied to 100 percent of the expenses and losses described in s. 627.736. After the deductible is met, each insured is eligible to receive up to $10,000 in total benefits described in s. 627.736(1)(c). However, this subsection shall not be applied to reduce the amount of any benefits received in accordance with s. 627.736(1)(c).
§627.739(2), Florida Statutes (2010).Applicable Case Law
The court is aware of the conflict between the Fourth District’s decisions in State Farm Mut. Auto. Ins. Co., v. Care Wellness Center, LLC a/a/o Virginia Bardon-Diaz, 43 Fla. L. Weekly D573a (Fla. 4th DCA 2018); USAA General Indemnity Company v. William Gogan, M.D., a/a/o Tara Ricks, 43 Fla. L. Weekly D570a (Fla. 4th DCA 2018), and the Fifth District’s decision in Progressive Select Insurance Company v. Florida Hospital Medical Center, a/a/o Johnathan Parent, 43 Fla. L. Weekly D318a (Fla. 5th DCA 2018). Further, the court notes that this issue has been recently accepted by the Florida Supreme Court in the case styled William Gogan, M.D. v. USAA General Indemnity Company, Case No. SC 18-5001. Given the conflict among the district courts and with no authority currently binding on this Court, this court is free to align itself with either the Fourth or with the Fifth District.
The court is persuaded and chooses to adopt the ruling and reasoning set forth in State Farm Mutual Automobile Insurance Company v. Care Wellness Center, LLC a/a/o v. Virginia Bardon-Diaz, 4D16-2254 (Fla. 4th DCA March 14, 2018) [43 Fla. L. Weekly D573a], which states that the deductible is applied to the amounts after the fee schedule limitation reduction. Florida Statute §627.739(2) is clear that that the deductible must applied “100 percent of the expenses. . .described in s. 627.736.” Pursuant to §627.736, coverage for medical expenses covered are limited to those services and expenses which are necessary and reasonable. Id. In calculating reasonableness, the Florida Supreme Court has found that the fee schedule limitations set forth in §627.736 (5)(a)(2) and incorporated in Defendant’s policy satisfies the reasonableness medical expenses coverage mandate. See Allstate Ins. Co., v. Orthopedic Specialists, 212 So. 3d 973, 976 (Fla. 2017) [42 Fla. L. Weekly S38a]. Therefore, when reading Florida Statute §627.739(2) along with §627.736, the plain meaning of the statute is clear that the statute requires that the deductible must be applied to 100 percent of the reasonable expenses.
Although the Fifth District Court of Appeal in a split decision found that the deductible should be applied to 100 percent of the total amount billed in Progressive Select Insurance Company, 43 Fla. L. Weekly D318a (Fla. 5th DCA 2018), this court agrees with the dissent’s reasoning that applying the deductible as the provider suggests, could mean that that the deductible “could be applied to a charge which is unreasonably high and thus not covered by PIP.” Id. This interpretation would effectively render the deductible meaningless. Furthermore, the majority’s opinion in the Fifth District Court of Appeal relied on legislative inaction on a proposed bill in 2016 as persuasive evidence that the calculation method proposed by the Defendant is not supported by the current law. This court, however, does not rely on what the possible reasons might have been for a proposed bill to have failed, as any attempt to derive legislative intent from legislative inaction is merely speculation. Moreover, the court does not resort to reviewing legislative history and committee reports to derive at the legislature’s intent when such intent is conveyed by the clear words of the statute.
Lastly, the court considered and found persuasive the following county court opinions Florida Wellness & Rehab Center of FIU Etc (a/a/o Manuel Angel Fernandez)(11th Cir. Cty. Ct. Aug. 10, 2017, Cuesta, J.); Royal Care Medical Center v. Esurance Property & Casualty Ins. Co., 22 Fla. L. Weekly Supp. 948a (11th Cir. Cty. Ct. Jan. 21, 2015, Ruiz, J.); County Line Chiropractic Medical &Rehab Center, Inc. v. Progressive Select Insurance Company, 25 Fla L. Weekly Supp. 663a (11th Cir. Cty. Ct. Sept. 29, 2017 Multack, J.).Entry of Final Judgment in Favor of Defendant
IT IS ORDERED AND ADJUDGED:
Final Judgment is hereby entered in favor of Defendant, Allstate Property and Casualty Insurance Company. The Plaintiff shall recover nothing from this action and the Defendant shall go hence without day.
The Court reserves jurisdiction to determine Allstate’s entitlement to and amount of attorney’s fees and costs.Certified Question
1. This Court entered an Order Granting Defendant’s Motion for Summary Judgment and Denying Plaintiff’s Motion for Summary Judgment, relying upon State Farm Mutual Automobile Insurance Company v. Care Wellness Center, LLC a/a/o v. Virginia Bardon-Diaz, 4D16-2254 (Fla. 4th DCA March 14, 2018) [43 Fla. L. Weekly D573a].
2. Pursuant to section 34.017, Florida Statutes, a county court is permitted to certify a question directly to the district court of appeal in a final judgment if the question may have statewide application, and (a) is of great public importance or (b) will affect the uniform administration of justice.
3. The issue of whether the policy deductible is applied to the full amount billed by a provider of medical services or whether the deductible is applied to covered expenses calculated pursuant to the Fee Schedules arises throughout the State of Florida in Personal Injury Protection lawsuits.
4. This issue has been litigated in two district courts and in many county and circuit courts with inconsistent rulings.
5. Because PIP disputes involve amounts within the jurisdictional limits of the county court, appellate review is to the circuit court, which cannot lead to a binding decision on county and circuit courts of the State.
6. Therefore, this Court certifies the following question to the Third District Court of Appeal as a matter of great public importance and one which will affect the uniform administration of justice:
PURSUANT TO SECTIONS 627.736 AND 627.739, FLORIDA STATUTES (2010), IS AN INSURER REQUIRED TO APPLY A POLICY DEDUCTIBLE TO THE TOTAL AMOUNT OF A PROVIDER’S INVOICES TO AN INSURER PRIOR TO APPLYING ANY FEE SCHEDULE FOUND IN § 627.736, FLA. STAT.?
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1Acknowledgement of new case was docked on April 4, 2018.
