26 Fla. L. Weekly Supp. 501a
Online Reference: FLWSUPP 2606ROJEInsurance — Personal injury protection — Coverage — Emergency services — Deductible — Insurer improperly processed bill of emergency medical provider by applying deductible to bills out of order of receipt — Standing — Assignment of benefits to “Facility and/or the Provider” confers standing on emergency room physicians — Insurer cannot dispute reasonableness of charge after it allows full amount of charge pursuant to statutory fee schedule when applying charge to deductible
EMERGENCY MEDICAL ASSOCIATES OF TAMPA BAY, L.L.C., as assignee of Allegra Rojek, Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2016 30186 COCI, Division 82. May 15, 2018. David A. Cromartie, Judge. Counsel: William England, Bradford Cederberg, P.A., Orlando, for Plaintiff. Clay Schacht, ROIG Lawyers, Deerfield Beach, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINALSUMMARY JUDGMENT AND DENYING DEFENDANT’SMOTIONS FOR FINAL SUMMARY JUDGMENT
THIS MATTER having come before this Honorable Court on Plaintiff’s Motion for Final Summary Judgment and Defendant’s Motion for Full and Final Summary Judgment and this Honorable Court having heard arguments of counsel on April 13, 2018 and being otherwise fully advised in the premises, states as follows:
I. FACTS
This is a claim for Personal Injury Protection benefits (hereinafter “PIP”) arising out of a motor vehicle collision that occurred on or about July 9, 2015. The Plaintiff in this matter is EMERGENCY MEDICAL ASSOCIATES OF TAMPA BAY, L.L.C., as assignee of Allegra Rojek (hereinafter “Plaintiff”). At all times material to the subject cause of action, the assignor, Allegra Rojek, was covered under a policy of automobile insurance by the Defendant, USAA CASUALTY INSURANCE COMPANY (hereinafter “Defendant”) which provided Personal Injury Protection coverage (“PIP”) for injuries Allegra Rojek sustained in the above-referenced accident. The Plaintiff rendered emergency service and care to the assignor, Allegra Rojek, on July 9, 2015, in the emergency department of St. Joseph’s Hospital following the above referenced collision. On July 9, 2015, EMERGENCY MEDICAL ASSOCIATES OF TAMPA BAY, L.L.C. (“EMATB”) obtained an assignment of benefits from Allegra Rojek in consideration and in exchange for the emergency services and care provided by EMATB to Allegra Rojek on July 9, 2015. Defendant alleges that the policy of automobile insurance at issue included a PIP deductible in the amount of $500.00 and that the PIP deductible was applicable to the claim of Allegra Rojek.
The chronological order of Defendant’s receipt of the medical bills for the medical services rendered to Allegra Rojek as a result of the July 9, 2015 loss at issue is undisputed. The first two medical bills received by Defendant under Ms. Rojek’s claim for PIP benefits were from Womens Care Florida, totaling $250.00, and both were received on July 17, 2015. The first bill was for date of service July 9, 2015, in the amount of $125.00. The second bill was for date of service July 10, 2015, in the amount of $125.00. Defendant approved both bills at 100% of the charged amount, and applied the one bill for date of service July 9, 2015 to the Insured’s $500 deductible in the amount of $125.00, leaving a remaining deductible balance of $375.00. Defendant held the second bill for date of service July 10, 2015 until after the deductible was satisfied by other medical bills and subsequently issued payment for the second bill received in the amount of $100.00.
The third medical bill received by Defendant under Ms. Rojek’s claim for PIP benefits was received by Defendant on July 27, 2015, and was from St. Joseph’s Hospital in the amount of $4,449.00. Defendant allowed the hospital bill in the amount of $3,283.00, applied only $158.00 of the Insured’s remaining $375.00 deductible, and paid the hospital $2,500.00 on September 1, 2015 with an additional $11.71 of interest.
The fourth medical bill received by Defendant under Ms. Rojek’s claim for PIP benefits was received by Defendant on July 29, 2015, and was from Danielle Hoeffner DC. in the amount of $488.41. Defendant allowed the chiropractor’s bill in the amount of $392.54, did not apply any of the Insured’s remaining $217.00 deductible, and instead paid the Danielle Hoeffner $314.03.
The fifth medical bill received by Defendant under Ms. Rojek’s claim for PIP benefits was received by Defendant on July 30, 2015, and was from Lifefleet, in the amount of $330.00. Defendant allowed the ambulance bill in the amount of $330.00, did not apply any of the Insured’s remaining $217.00 deductible, and instead paid Lifefleet $264.00.
The Plaintiff’s bill was the sixth medical bill received by Defendant under Ms. Rojek’s claim for PIP benefits. The Plaintiff’s bill was received by Defendant on July 31, 2015, within thirty (30) days of Defendant receiving notice of the accident. Defendant allowed the full $217.00 amount of Plaintiff’s charges based upon fee schedule and applied the remaining $217.00 deductible to Plaintiff’s bill prior to processing the St. Joseph Hospital bill, thereby resulting in no payment to Plaintiff.
It is undisputed that Plaintiff qualifies for the $5,000.00 reserve pursuant to Florida Statute 627.736(4) (c) and pursuant to Section C. Found on Page 13 of 34, under the Limit of Liability portion of the insured’s policy of insurance. Defendant’s contract with the insured specifically sets forth that Defendant shall reserve $5,000 of PIP benefits for payment to emergency room physicians like the Plaintiff, and that after the thirty (30) day window, Defendant would only release the amounts from the reserve for which Defendant did not receive notice of such claims. It is further undisputed that Defendant’s policy of insurance elects to reimburse medical bills pursuant to the Schedule of Maximum Charges, which is identified under the definition of “reasonable fee” found on page 11 of 34 on policy form 5100FL(02), which applies to the claim at issue.
II. ISSUES TO BE DETERMINED BY THE COURT
The issues presented by the parties for determination by this Court on competing motions for final summary judgment are as follows: 1) whether Defendant improperly processed medical bills by applying an alleged PIP deductible to said medical bills out of order of receipt in derogation of Fla. Stat, §627.736 and Fla. Stat. §627.739; 2) whether the Plaintiff has standing and Defendant has waived it right to contest Plaintiff’s Standing; 3) whether relatedness and necessity of the services provided to Allegra Rojek by Plaintiff as well as reasonableness of Plaintiff’s charges are resolved.
III. ANALYSIS AND RULING
A. Defendant Improperly Processed Medical Bills by Applying an Alleged PIP Deductible to Said Medical Bills Out of Order of Receipt in Derogation of Fla. Stat. §627.736 and Fla. Stat. §627.739
The Fifth District Court of Appeals has ruled on seven (7) different occasions that medical bills must be applied to an insured’s elected deductible “in the order of receipt”. Mercury Insurance Company of Florida v. Emergency Physicians of Central, 182 So.3d 661 (Fla. 5th DCA 2015) [40 Fla. L. Weekly D2364a]. Progressive Am. Ins. Co. v. Emergency Physicians of Cent. Fla., 186 So.3d 1136 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D714a]; Progressive Am. Ins. Co. v. Emergency Physicians of Cent. Fla., 187 So.3d 898 (Fla. 5th DCA Mar. 4, 2016) [41 Fla. L. Weekly D564a]; USAA Gen. Indem. Co. v. Emergency Physicians Cent., 186 So.3d 588 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D435e]; Progressive Select Ins. Co. v. Fla. Emergency Physicians, 183 So.3d 489, 489 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D335b]; Metro. Cas. Ins. Co. v. Emergency Physicians of Cent. Fla., LLP, 178 So.3d 927, 928 (Fla. 5th DCA 2015 [40 Fla. L. Weekly D2497b]; and Progressive Exp. Ins. Co. v. Emergency Physicians of Cent., 187 So.3d 1278 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D888b]. The Court looks to the line of cases following Mercury from the Fifth District Court of Appeals in concluding that USAA’s position is incorrect. The Fifth District Court of Appeals wrote, “in [Mercury], this Court held that all claims, including EPCF’s priority claim, are properly applied to a personal injury protection deductible in the order that they are received.” See Progressive American Insurance Company v. Emergency Physicians of Central Florida, etc., 187 So.3d 898, 899 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D564a]. In Progressive, the Fifth District Court of Appeals clarified its holding in Mercury, which leads this Court to find that Defendant’s method of processing compensable medical bills out of order is in derogation of binding law.
B.
Plaintiff has standing to maintain the instant lawsuit seeking PIP benefits
On September 28, 2015, Plaintiff submitted a Notice of Intent to Initiate Litigation (hereinafter “Demand Letter”) to Defendant. The Demand Letter included a three page document entitled Conditions of Admission and Treatment (Hereinafter “Assignment”). On October 30, 2015, Defendant responded to Plaintiff’s Demand Letter. In its Motion for Summary Judgment, Defendant argues that the Assignment does not provide Plaintiff with Standing to enforce the policy of insurance at issue or file a cause of action for same.
The relevant language is set forth in multiple lengthy paragraphs, but for purposes of brevity, the Court can focus of the following excerpts:
As a condition of my and/or guardian’s/child’s (“I, me”) admission and treatment to my health care facility owned, operated, and/or affiliated with Bay Care Health System, St. Joseph’s Health Care Center, South Florida Baptist Hospital, Morton Plant Mease Health Care, St. Anthony’s Hospital, Winter Haven Hospital, Bay Care Alliant Hospital, Bay Care Laboratories, Bay Care Outpatient Imaging, and/or Bay Care Outpatient Centers, (Individually each and collectively all, the “Facility”). I hereby agree to the following:
3. NO LEGAL RELATIONSHIP BETWEEN FACILITY AND PROVIDERS: I recognize that most physicians and independent contractors providing services to me, including but not limited to, my treating physician/surgeon, radiologists, pathologists, cardiologists, emergency physicians, anesthesiologists, staff physicians, contract physicians, physicians assistants, advanced registered nurse practitioners, certified nurse midwives, per fusionists, and others who may provide care and/or treatment to me during my Facility visit (individually each, and collectively all, the Provider(s)”), are not employees or agents of the Facility. The Providers have been granted the use of the Facility for the care and treatment of their patients, but they may not be employees or agents of the Facility.
17. ASSIGNMENT OF BENEFITS: I hereby assign to Facility and/or the Provider (as applicable), all of my rights, benefits, privileges, protections, claims, causes of action, interests or recovery, to any and all rights, benefits, privileges, protections, claims, causes of action, interests, or recovery of any type whatsoever receivable by me or on my behalf arising out of any policy of Insurance, plan, trust, fund, or covering providing health care coverage of any type to me (or to any other third party responsible for me) for the charges for services rendered to me from the Facility and/or Provider (as applicable). This includes, without limitation, any private or group health/hospitalization plan, automobile liability, general liability, personal injury protection, medical payments, uninsured or underinsured motor vehicle benefits, settlements/judgments/verdicts, self-funded plan, trust, MEWA, collective, or any other third-party payor (collectively) “Coverage source”). I also authorize direct payment to Facility and/or the Provider (as applicable) of all benefits, payments, monies, checks, funds, wire transfers or recovery of any kind whatsoever. I also agree any payments of any kind (e.g., checks, funds, payments, monies, benefits or recovery for coverage of services by Facility and/or Provider (as applicable) that is sent directly to me (or to another third party responsible for me) will be sent immediately to Facility and/or Provider (as applicable) through whatever means necessary. This includes, without limitation, endorsing over any checks and/or other documents to the Facility and/or Provider (as applicable). I also agree to assist the Facility and/or Provider (as applicable) in pursing payment from my Coverage Source. This includes, without limitation, signing documents requested or needed to pursue claims and appeals, get documents from Coverage Source, or otherwise to support payment to the Facility and/or Provider (as applicable). I also understand that I am financially responsible for charges not paid accordingly to this assignment, to the extent permitted by state and federal law.
18. AUTHORIZED REPRESENTATIVE: I hereby authorize and designate the Facility and/or the Provider (as applicable) as my authorized representative to act on my behalf with respect to all matters related to all of my rights, benefits, privileges, protections, claims, causes of actions, interests or recovery arising out of any policy of insurance, plan, trust, fund, or coverage providing health care coverage of any type to me (or to any other third party responsible for me). This includes, without limitation, filing claims and appeals, receiving all information, documentation, summary plan descriptions, bargaining agreements, trust agreements, contracts and other Instruments under which the plan is established or operated, as well as receiving any policies, procedures, rules, guidelines, protocols, or other criteria considered by the Coverage Source, in connection with any claims, appeals, or notifications related to claims or appeals.
This Court is guided by USAA Gen. Indemn. Co. v. Emergency Med. Assocs of Tampa Bay a/a/o Nathan Sanders, Case No. : 2016-10032 APCC, (7th Jud. Cir., Volusia Co., November 3, 2017), wherein the Seventh Circuit, acting in its appellate capacity affirmed the trial court’s holding that the above language conveys standing to the emergency room physicians. There is no dispute that Plaintiff was the emergency room physicians that rendered treatment to the insured on the date of service at issue in this matter. This Court interprets the assignment to designate Plaintiff as a “Provider” based upon the facts and evidence of this case and the treatment rendered by Plaintiff to the insured. This Court finds that Plaintiff has standing to pursue this cause of action and that Defendant has waived it right to dispute Plaintiff’s standing.
C. Relatedness and Necessity of the Services Provided to Allegra Rojek by Plaintiff as well as Reasonableness of Plaintiff’s Charges are Resolved
This is an interesting issue wherein even though the policy elects to reimburse PIP benefits pursuant to the Schedule of Maximum Charges, the Defendant processed the medical bills pursuant to the Schedule of Maximum Charges, and Plaintiff is not contesting the amount allowed by Defendant pursuant to the Schedule of Maximum Charges; Defendant argues that “reasonableness” is still a fact dependent inquiry because Defendant is contesting the amount that it allowed for Plaintiff’s bill at issue. This Court disagrees.
It is Plaintiff’s position that Defendant’s actions in this claim dictate that these items are no longer at issue and are resolved. In support of its position, Plaintiff argues that Defendant 1) during the deposition of Defendant’s Corporate Representative it was confirmed that Defendant was not disputing whether the services were related and medically necessary; 2) Defendant deemed the Plaintiff’s charges to be reasonable as Defendant allowed Plaintiff’s bill at 100% of the charged amount pursuant to the Schedule of Maximum Charges; and 3) the Schedule of Maximum Charges satisfied the reasonable expense mandate of the Florida No-Fault statute. Plaintiff argues that it is disingenuous for Defendant to challenge the amount that it allowed under the Schedule of Maximum Charges when it allowed 100% of Plaintiff’s charge under the fee schedule and Plaintiff is not disputing Defendant’s determination. Plaintiff cites to the Legislative Staff Analysis CS/CS/HB 119 (2012); Allstate Insurance Company v. Orthopedic Specialists, 212 So.3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a]; Geico General Insurance Co. v. Virtual Imaging Services, Inc., 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]; and State Farm Mutual Automobile Insurance Company v. Care Wellness, 2018 WL 1315026 (Fla. 4th DCA 2018) [43 Fla. L. Weekly D573a], to support its position that the fee schedule amounts, like the one allowed by Defendant in this matter, are reasonable as long as there is no dispute regarding whether the policy elects to reimburse the Fee Schedule amounts and in this matter, there is no dispute.
It is the Defendant’s position that although it allowed Plaintiff’s charges in full pursuant to the Schedule of Maximum Charges and applied the full amount of Plaintiff’s bill to the alleged deductible, it can nonetheless challenge the reasonableness of Plaintiff’s charges for those services at Summary Judgment. Defendant cites to Florida Statute 627.736(4)(b), Progressive Select Ins. Co. v. Emergency Physicians of Central Florida, LLP, a/a/o Samantha Jordan and Elizabeth Figueroa, 202 So. 3d. 437, 438 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D2145a] (Holding that when the policy of insurance fails to elect the fee schedule and an insurer is not permitted to use the fee schedule that it used to reduce a medical bill, then the parties should proceed to litigate the reasonableness of the provider’s charge under the fact dependent methodology); State Farm Mut. Auto. Ins. Co. v. Pan Am Diagnostic Services, Inc., d/b/a Pan Am Diagnostic of Orlando a/a/o Jimmy Celestin, 25 Fla. L. Weekly Supp 3a (Fla. 9th Jud. Cir. Ct. Orange County March 13, 2017); and State Farm Mut. Auto. Ins. Co. v. World Health Wellness, Inc., d/b/a World Health Wellness a/a/o Deatry Bing, 25 Fla. L. Weekly Supp 694a (Fla. 9th Jud. Cir. Ct. Orange County October 19, 2017), to support its contention that an insurer can always challenge the reasonableness of a provider’s charge.
The Fourth District Court of Appeal has specifically analyzed and addressed the “reasonableness” issue in this matter as follows:
As PIP benefits are established only for reasonable charges, we must next review how to determine reasonableness. Our supreme court has explained that there are two different methods to calculate reasonableness. Orthopedic Specialists, 212 So.3d at 976. Under the first method — found within section 627.736(5)(a) — reasonableness is a fact-dependent inquiry determined by considering various factors. Orthopedic Specialists, 212 So.3d at 976 (citing Virtual Imaging, 141 So.3d at 155-56). Under the second method — found within section 627.736(5)(a)1. — an insurer may limit reimbursement to eighty percent of a schedule of maximum charges set forth in the PIP statute. § 627.736(5)(a) 2., Fla. Stat. (2013). “Reimbursements made under section 627.736(5)(a)2. satisfy the PIP statute’s reasonable medical expenses coverage mandate.” Orthopedic Specialists, 212 So.3d at 976 (citing Virtual Imaging, 141 So.3d at 150, 156-57). (Emphasis added)
State Farm Mutual Automobile Insurance Company v. Care Wellness, 2018 WL 1315026 (Fla. 4th DCA 2018) [43 Fla. L. Weekly D573a].
In Orthopedic Specialists and Virtual Imaging, the Florida Supreme Court has likewise acknowledged that there are two different methodologies for calculating reimbursements to satisfy the PIP statute’s reasonable medical expenses coverage mandate. Importantly, the Florida Supreme Court explicitly held that “Reimbursements made under section 627.736(5)(a)2. satisfy the PIP statute’s reasonable medical expenses coverage mandate. Allstate Insurance Company v. Orthopedic Specialists, 212 So.3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a]. This follows the legislative intent behind enactment of the fee schedules as described in the Legislative Staff Analysis CS/CS/HB 119 (2012), which sets forth that “Payments made by insurers pursuant to the schedule of maximum charges are considered reasonable. If a provider bills a lesser amount, and the insurer pays the amount billed, the payment is also considered reasonable.”
The language of Defendant’s policy provides guidance in resolving this issue with the specific election to reimburse medical benefits under the Schedule of Maximum Charges as described in the definition of “reasonable fee”, which is defined as:
K. “Reasonable fee” is no more than 80 percent of the following schedule of maximum charges:
. . . . .
3. The usual and customary charges in the community for emergency services and care as defined by s. 395.002 provided in a facility under chapter 395 rendered by a physician or dentist, and related hospital inpatient services rendered by a physician or dentist.
Defendant’s policy language tracks the language of Florida Statute 627.736(5)(a)1. (2015). Plaintiff does not dispute that the policy elects to reimburse medical benefits pursuant to the fee schedule. Plaintiff further conceded that the Defendant properly processed Plaintiff’s charge pursuant to the Fee Schedule listed above, and that Defendant correctly found that $217 was the fee schedule amount for Plaintiff’s services. Pursuant to the Florida Supreme Court and the Fourth District Court of Appeal, the Fee Schedule amount of $217 is “reasonable” and Defendant owes 80% of same to Plaintiff.
This Court finds that Progressive Select, is distinguishable from the facts as issue in this matter. The first material distinction is that the policy at issue in this matter elects to reimburse medical benefits pursuant to the Schedule of Maximum Charges, while the policy in Progressive Select did not elect the Schedule of Maximum Charges. This is an important distinction as the Fifth District Court of Appeal concluded that when a policy does not permit an insurer to limit reimbursement to the fee schedule, then the parties shall proceed under the first default methodology which requires a fact dependent inquiry. Plaintiff’s concession in this matter removes this case from the purview of Progressive Select.
The second material distinction between the facts of this matter and Progressive Select, is based upon that fact that Defendant did not reduce Plaintiff’s bill, and instead processed and “allowed”‘ the Plaintiff’s bill at 100% of the charged amount pursuant to the Fee Schedule above. It is important to note that within its Motion for Full and Final Summary Judgment and in argument at the hearing, Defendant uses the phrase “compensable” to describe Plaintiff’s bill for the emergency services and care rendered to Allegra Rojek. As a result, Defendant via its own argument has conceded to the compensability of Plaintiff’s bill. Pursuant to A.J. v. State, 677 So.2d 935 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e], Plaintiff’s bill is prima facie evidence of a “reasonable charge”, which can be accepted, rejected, or not disputed. Defendant’s Explanation of Review demonstrates that the neither the charge nor services were disputed by Defendant, but rather Defendant deemed the services and the charged amount “compensable” and applied same to the insured’s deductible. Plaintiff’s bill and Defendant’s Explanation of Review are words of a contract and have independent legal significance for which the law attaches duties and liabilities. Id.
This Court finds that Progressive Select does not apply to instances where the policy clearly elects the fee schedule, where the insurer pays the amount billed without reduction, and where the insurer pays the fee schedule amount and the medical provider is not disputing the application of the fee schedule. To rule otherwise, would render the contractual agreement to limit reimbursement pursuant to the Schedule of Maximum Charges meaningless and in violation of the Florida Supreme Court’s mandates. Via Plaintiff’s concessions, Defendant’s actions and determinations, as well as the record evidence before the Court, this Court finds that the services provided to Allegra Rojek by Plaintiff were related and medically necessary. Finally, the Defendant has the contractual obligation to reimburse the Plaintiff 80% of the fee schedule amount of $217.00, which is $173.60.
IV. CONCLUSION
The Court finds that no genuine issues of material fact remain. The Court finds that all issues have been disposed of by the Court, including but not limited to, any and all issues raised by the parties in the pleadings. Upon competing motions for final summary judgment, the Court finds that Plaintiff is entitled to Final Summary Judgment as a matter of law.
IT IS HEREBY ORDERED AND ADJUDGED that:
1. Plaintiff’s Motions for Final Summary Judgment are hereby GRANTED.
2. Defendant’s Motions for Full and Final Summary Judgment are hereby DENIED.
3. Final Judgment is hereby GRANTED in favor of the Plaintiff, EMERGENCY MEDICAL ASSOCIATES OF TAMPA BAY, L.L.C., as assignee of Allegra Rojek, wherein Plaintiff shall recover from Defendant, USAA CASUALTY INSURANCE COMPANY, the sum of $173.60, plus 4.75% pre judgment interest for which sum let execution issue.*
4. The Court finds Plaintiff is entitled to its reasonable attorneys’ fees and costs. The Court reserves jurisdiction to determine the amount of attorneys’ fees and costs to Plaintiff pursuant to Fla. Stat. §§627.736, 627.428 and 57.041.
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*Post-judgment interest of 5.35% per annum shall accrue on this judgment pursuant to Fla. Stat. § 55.03.
