26 Fla. L. Weekly Supp. 429a
Online Reference: FLWSUPP 2605BORRInsurance — 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
DOCTOR’S PAIN MANAGEMENT GROUP, INC. (a/a/o Roberto Borrego), Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 16-004998 CONO 70. June 12, 2018. John D. Fry, Judge. Counsel: Mac S. Phillips, Phillips Tadros, P.A., Fort Lauderdale; Emilio R. Stillo, Stillo & Richardson, P.A., Davie; and Kevin W. Richardson, Stillo & Richardson, Tampa, for Plaintiff. Sadiq A. Mohamad, Law Offices of George L. Cimballa, III, Geico Staff Counsel, Plantation, for Defendant.
FINAL JUDGMENT IN FAVOR OF PLAINTIFF
THIS CAUSE came before the Court for hearing on June 5, 2018 on the parties’ competing motions for final summary judgment, and the Court, having reviewed the motions; having reviewed the court file and the parties’ stipulation as to matters of fact; having heard argument of counsel and being otherwise sufficiently advised in the premises,
ORDERS AND ADJUDGES as follows:
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)1 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.”2 (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. 200% of the allowable amount under the participating physicians’ fee schedule of Medicare Part B for CPT 97140 (the manual therapy code at issue in this case) is $59.30 for the locality where the services were performed (Rest of Florida) in 2013.
5. Plaintiff charged $50.00 for CPT 97140 and performed that service 10 times after the deductible was met for a total of $500.00. Geico allowed the full $50.00 charge but paid $40.00 each time for a total of $400.00. In other words, Geico paid 80% of the charge submitted rather than “the amount of the charge submitted.” By this lawsuit Plaintiff seeks $100.00 as principal damages, which represents the 20% difference between the amount charged and the amount paid.
6. 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. This Court agrees.
7. 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. This Court disagrees because Geico promised it would pay the whole charge when less than 200% of the Medicare Part B fee schedule amount, thus relieving its insured of the co-payment obligation in this specific circumstance and compelling Geico to pay the full amount charged to the Plaintiff. 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.
8. 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. This Court 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 (code and amount from the instant case):
| CPT Code | Charge/Allowed | 200% of Medicare Allowable | Insurer Pays | Insured Pays |
| 97140 | $50.00 | $59.30 | $50.00 | $0.00 |
Geico’s Construction (code and amount from the instant case):
| CPT Code | Charge/Allowed | 200% of Medicare Allowable | Insurer Pays | Insured Pays |
| 97140 | $50.00 | $59.30 | $40.00 | $10.00 |
9. Plaintiff’s interpretation does not require the insured to go out of pocket while Geico’s does. Plaintiffs interpretation is therefore more beneficial to the insured than Geico’s.
10. 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:
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. 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.
(emphasis added). 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 chose to pay the full amount of the charge submitted.
11. 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.
12. In any event, the law in Florida is clear 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.
13. 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.
14. 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.
15. 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%. As a result, Plaintiff suffered principal damages in the amount of $100.00.
It is therefore:
ORDERED AND ADJUDGED THAT final judgment be and the same is hereby entered in favor of Plaintiff Doctors Pain Management Group, Inc., and against the Defendant, Geico General Insurance Company, whose address is 5260 Western Avenue, Chevy Chase, Maryland, in the amount of $100.00 as principal damages, plus $20.80 as prejudgment interest for a total amount of $120.80, which shall bear interest at the annual rate of 5.53%, 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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1For purposes of this case, Plaintiff does not dispute that Geico sufficiently elected the fee schedule payment methodology.
2This language appears at section A(6) on page 3 of Geico’s FLPIP (01-13) Florida Policy Amendment.
