26 Fla. L. Weekly Supp. 407a
Online Reference: FLWSUPP 2605CAMPInsurance — 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
COUNTY LINE CHIROPRACTIC CENTER, INC. (a/a/o Campbell, Stephanie), Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 17-014867 SP 23 1. July 20, 2018. Myriam Lehr, Judge. Counsel: Mac S. Phillips, Phillips Tadros, P.A., Fort Lauderdale; and Michael P. Brodi and Mark A. Crank, The Florida Law Center, P.A., Aventura, for Plaintiff. Rebeca Quintero, Law Office of Haydee De La Rosa-Tolgyesi, Geico Staff Counsel, Coral Gables, for Defendant.
FINAL JUDGMENT IN FAVOR OF PLAINTIFF
THIS CAUSE came before the Court for hearing on July 18, 2018 on the parties’ competing motions for final summary judgment, and the Court, having reviewed the motions1; having reviewed the court file and the legal authorities presented by the parties; having heard argument of counsel and being otherwise sufficiently advised in the premises,
ORDERS AND ADJUDGES that the Plaintiff’s Motion for Summary Judgment Re: “BA” Reductions is GRANTED and Defendant’s Motion for Final Summary Judgment is DENIED.
1. The issue in this case is the proper amount of reimbursement for assigned personal injury protection (PIP) benefits when a medical provider’s submitted charge is less than the amount allowed under the schedule of maximum charges enumerated in Fla. Stat. § 627.736(5)(a)(1) (2013)2 and the Geico insurance policy.
2. The pertinent portion of the Geico policy 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.”3
(emphasis added).
3. “[A]mount allowed above” refers to the amount allowed under the schedule of maximum charges set forth in Fla. Stat. § 627.736(5)(a)1. (2013). For the chiropractic services at issue here, the applicable portion of the schedule of maximum charges is “200 percent of the allowable amount under. . .[t]he participating physicians fee schedule of Medicare Part B. . .”
4. It is undisputed that Plaintiff charged $200.00 for CPT 99203.4
5. It is undisputed that 200 percent of the allowable amount under the participating physicians fee schedule of Medicare Part B for CPT 99203 is $231.36 for the locality where the service was performed (Fort Lauderdale, Florida) when the service was performed (September 18, 2013).
6. It is undisputed that Geico allowed the full amount charged for CPT 99203 and paid 80% of it ($160.00).
7. It is undisputed that Plaintiff charged $116.00 for CPT 99213.5
8. It is undisputed that 200 percent of the allowable amount under the participating physicians fee schedule of Medicare Part B for CPT 99213 is $154.12 for the locality where the service was performed (Fort Lauderdale, Florida) when the service was performed (October 1, 2013).
9. It is undisputed that Geico allowed the full amount charged for CPT 99213 and paid 80% of it ($92.80).
10. In other words, it is undisputed that Geico paid 80% of the charges submitted for CPT 99203 and 99213 rather than “the amount of the charge[s] submitted.” By this lawsuit, Plaintiff seeks as principal damages the 20% difference.
11. Plaintiff’s interpretation is that the disputed policy text means exactly what it says — when a medical provider submits a charge for less than 200% of the allowable amount under the participating physicians’ fee schedule of Medicare Part B, then Geico shall pay “the amount of the charge submitted.” Plaintiff therefore contends that the 20% coinsurance requirement does not apply to charges that are less than that threshold. Plaintiff acknowledges there is a copayment requirement for charges that exceed the amount allowed under the fee schedule method but argues there is no such requirement when the amount charged is less.
12. Geico, on the other hand, contends that the 20% coinsurance applies to all charges because the insured’s co-payment responsibility is mandated by the PIP statute and the policy. Geico’s contention, however, defies the promise it made in its policy to pay the entire charge when less than 200% of the Medicare Part B fee schedule amount. The PIP statute only provides for the minimal benefits required under Florida’s financial responsibility law and should not be read to limit the benefits the policy provides to the minimum required by statute. See Sturgis v. Fortune Ins. Co., 475 So.2d 1272-73 (Fla. 1985); Wright v. Auto-Owners Ins. Co., 739 So.2d 180-1 (Fla. 2d DCA 1999) [24 Fla. L. Weekly D2033a]. In other words, an insurance policy can always afford more benefits than the PIP statute, but it can never afford less.
13. Geico further argues that the Plaintiff’s interpretation leads to an “absurd” result because a provider who charges less than the amount allowed under the fee schedules will be paid more than a provider who charged more. Plaintiff disagrees because the provider will be paid 100% of the charge either way; the issue is from whom. To put it graphically:Plaintiff’s Construction:
| CPT Code | Charge/Allowed | 200% of Medicare Allowable | Insurer Pays | Insured Pays |
| 99203 | $200.00 | $231.36 | $200.00 | $0.00 |
| 99213 | $116.00 | $154.12 | $116.00 | $0.00 |
Geico’s Construction:
| CPT Code | Charge/Allowed | 200% of Medicare Allowable | Insurer Pays | Insured Pays |
| 99203 | $200.00 | $231.36 | $160.00 | $40.00 |
| 99213 | $116.00 | $154.12 | $92.80 | $23.20 |
14. Plaintiff’s interpretation does not require the insured to go out of pocket while Geico’s does. Plaintiff’s interpretation is therefore more beneficial to the insured than Geico’s.
15. Geico further argues that the disputed policy text “essentially” mirrors the last sentence in Fla. Stat. § 627.736(5)(a)5, which contemplates the scenario where insurers who elect the fee schedules receive charges from providers that are less than the amount allowed thereunder:
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.
The primary problem with Geico’s attempt to morph the issue from one of contract interpretation to one of statutory construction is that the statute says “may” and the policy says “shall.” While the statute gives insurers a choice of how to handle charges that are less than the amount allowed under the schedule of maximum charges, Geico’s use of the word “shall” establishes that Geico affirmatively decided to pay the full amount of the charge submitted.
16. Finally, Geico identified an additional document that it calls M608 (01-13), which it claims to be an endorsement. Def.’s Mot. Summ. J., p. 6. The M608 (01-13) document states that it is an “IMPORTANT NOTICE” about Geico’s use of the “MEDICAL FEE SCHEDULE FOR PERSONAL INJURY PROTECTION CLAIMS” and was “ENCLOSED IN COMPLIANCE WITH FLORIDA STATUTE 627.736.” The body of the M608 (01-13) document includes fee schedule language from Fla. Stat. § 627.736(5)(a)1 (2013) and appears designed to alert the insured that Geico has elected the fee schedule payment method to limit reimbursement. The M608 (01-13) document does not contain the policy text in dispute here.
17. In response, Plaintiff countered that the M608 (01-13) document is not an endorsement. First, Florida law requires that “every policy” specify certain information including “the form numbers and edition dates or numeric code indicating edition dates, when such code has been supplied to the office, of all endorsements attached to a policy.” Fla. Stat. § 627.413(1)(g). See, also, A & M Gerber Chiropractic, LLC (a/a/o Connors Carruthers) v. Geico Gen. Ins. Co., 291 F.Supp.3d 1318, 1337 (S.D. Fla. 2017) [27 Fla. L. Weekly Fed. D133a]. The policy’s Declarations Page makes reference to all “contract amendments” and “unit endorsements” by form number and edition dates, but makes no mention anywhere of the M608 (01-13) document. That means that either the document is not an endorsement or that Geico violated Fla. Stat. § 627.413(1)(g). Second, the M608 (01-13) document itself suggests it was not intended as an endorsement. Specifically, the last two sentences of the M608 (01-13) document state: “Personal Injury Protection Coverage is subject to the terms, conditions and exclusions in your policy. Please read your policy carefully.” “Thus, by referring the insured to the policy language, M608 (01-13) suggests its own language is not part of the policy.” Gerber, 291 F.Supp.3d at 1339. Rather, it is simply a notice to Geico’s policyholders to refer to the actual policy.
18. In all events, the law in Florida is well-settled with respect to the interpretation of an insurance contract. Where the language is clear and unambiguous, a court must interpret the policy in accordance with the plain meaning so as to give effect to the policy as written. Washington Nat’l Ins. Corp. v. Ruderman, 117 So.3d 943, 948 (Fla. 2013) [38 Fla. L. Weekly S511a], citing, State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So.3d 566, 569-70 (Fla. 2011) [36 Fla. L. Weekly S469a]. If the language is susceptible to more than one reasonable interpretation, then the language is ambiguous and is to be construed in favor of the insured and against the insurer. Id.
19. The Court agrees with the Plaintiff’s construction of the disputed policy text and finds it to be a reasonable interpretation as a matter of law. The Court finds that Geico’s interpretation is unreasonable because it defies a plain reading of the plain language.
20. But even if the Court determined that Geico’s interpretation is also reasonable, then we are left with policy language that is susceptible to two reasonable interpretations. The Plaintiff’s interpretation must therefore prevail. Ruderman, 117 So.3d at 948.
21. Although Geico may not like this result, it is bound by the language of its own choosing. Berkshire Life Ins. Co. v. Adelberg, 698 So.2d 828, 830 (Fla. 1997) [22 Fla. L. Weekly S513a](Insurers are bound by the language of their own choosing, regardless of whether under the policy language results in a good or bad bargain for the insurer.). If Geico meant something different from the plain text of the policy, then it was required to unambiguously draft the contract accordingly. Id. Courts are not permitted to revise an otherwise valid insurance policy to make it more reasonable or advantageous for an insurance company that used imprecise language providing coverage that is greater than coverage the insurance company may have originally contemplated. Stack v. State Farm Mut. Auto. Ins. Co., 507 So.2d 617, 619 (Fla. 3d DCA 1987). In short, the insurer — not the insured — bears the risk of poorly drafted or imprecise language.
22. In conclusion, Geico breached the insurance contract because it failed to pay the full amount of the charges submitted even though they were less than 200% of the allowable amount under the participating fee schedule of Medicare Part B. Instead, Geico paid only 80% for CPT 99203 performed on September 18, 2013 and CPT 99213 performed on October 1, 2013. As a result, Plaintiff suffered principal damages in the amount of $63.206.
It is therefore:
ORDERED AND ADJUDGED THAT final judgment be and the same is hereby entered in favor of Plaintiff, County Line Chiropractic Center, Inc., and against the Defendant, Geico General Insurance Company, whose address is 5260 Western Avenue, Chevy Chase, Maryland, in the amount of $63.20 as principal damages, plus $13.98 as prejudgment interest for a total amount of $77.18, which shall bear interest at the rate established by law for which sum let execution issue forthwith.
The Court hereby determines that the Plaintiff is entitled to recover its reasonable attorneys’ fees and taxable costs and retains jurisdiction to determine amounts thereof.
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1On June 18, 2018, Defendant Geico General Insurance Company (“Geico”) filed “Defendant’s Motion for Final Summary Judgment. On June 20, 2018, Geico filed “Defendant’s Response in Opposition to Plaintiff’s Motion for Final Summary Judgment. Both documents are identical.
2For purposes of this case, Plaintiff does not dispute that Geico sufficiently elected the fee schedule payment methodology.
3This language appears at section A(6) on page 3 of Geico’s FLPIP (01-13) Florida Policy Amendment.
4CPT 99203 is the current procedural terminology for an office examination of a new patient.
5CPT 99213 is the current procedural terminology for an office examination of an established patient.
6$40 (20% of $200.00 charged for CPT 99203) + $23.20 (20% of $116.00 charged for CPT 99213) = $63.20.
