26 Fla. L. Weekly Supp. 657a
Online Reference: FLWSUPP 2608WOODInsurance — Personal injury protection — Coverage — Emergency services — Deductible — Where there is no evidence that named insured elected deductible, claims should not have been subject to deductible — Insurer was required to hold in reserve beyond 30 days that portion of emergency provider’s claim that was disputed and remained unpaid at end of 30-day period — Exhaustion of benefits is not defense to payment of disputed portion of emergency provider’s claim
EMERGENCY MEDICINE PROFESSIONALS, P.A., as assignee of Dillon Woodside, Plaintiff, v. GEICO INDEMNITY COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2017-SC-16356-O. August 15, 2018. Eric H. DuBois, Judge. Counsel: William S. England, Bradford Cederberg, P.A., Orlando, for Plaintiff. Ronalda Stevens, Orlando, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR
FINAL SUMMARY JUDGMENT
THIS MATTER having come before this Honorable Court on Plaintiff’s Motion for Final Summary Judgment and this Honorable Court having heard argument of counsel and being otherwise fully advised in the premises, finds as follows:
UNDISPUTED FACTS
This is a claim for Personal Injury Protection benefits (hereinafter “PIP”) arising out of a motor vehicle collision that occurred on or about February 19, 2017. The Plaintiff in this matter is EMERGENCY MEDICINE PROFESSIONALS, P.A., as assignee of Dillon Woodside (hereinafter “Plaintiff”). At all times material to the subject cause of action, the assignor, Dillon Woodside, was covered under a policy of automobile insurance by the Defendant, GEICO INDEMNITY COMPANY (hereinafter “GEICO”) which provided Personal Injury Protection coverage (“PIP”) for injuries Dillon Woodside sustained in the above-referenced accident. The Plaintiff rendered emergency service and care to the assignor, Dillon Woodside, on February 19, 2017, in the emergency department of Florida Hospital following the above referenced collision.
The chronological order of Defendant’s receipt of the medical bills for the medical services rendered to Dillon Woodside as a result of the loss at issue is undisputed. The first bill received by Defendant under the instant claim was submitted by Coastal Healthcare Partners for date of service 2/23/2017 in the amount of $145.86. Defendant reduced the charged expense of $145.86 per fee schedule to $145.48 (a reduction of $0.38) and applied the reduced fee schedule amount to the insured’s deductible instead of 100% of the charged expense.
The second bill received by Defendant under the instant claim was submitted by Coastal Healthcare Partners for date of service 2/28/2017 in the amount of $157.22. Defendant reduced the charged expense of $157.22 per fee schedule to $155.60 (a reduction of $1.62) and applied the reduced fee schedule amount to the insured’s deductible instead of 100% of the charged expense.
The third bill received by Defendant under the instant claim was submitted by Coastal Healthcare Partners for date of service 3/2/2017 in the amount of $197.22. Defendant reduced the charged expense of $197.22 per fee schedule to $182.04 (a reduction of $15.18) and applied the reduced fee schedule amount to the insured’s deductible instead of 100% of the charged expense.
Plaintiff’s bill was received fourth under the instant claim and the charges for Mr. Woodside’s treatment by Emergency Medicine Professionals, P.A. totaled $646.00. Defendant allowed 100% of Plaintiff’s charged amount, applied 100% of the charged expense to the remainder of the insured’s deductible and issued reimbursement to Plaintiff in the amount of $103.30.
Defendant’s position is that the insured elected a PIP deductible in the amount of $1,000.00 and that Defendant properly applied bills to same at fee schedule amounts, which included $516.88 of Plaintiff’s $646.00 charge. It is further undisputed that Plaintiff qualifies as a provider that is governed by Florida Statute 627.736(4)(c).
ISSUES TO BE DECIDED
The issues in this matter are whether the insured elected the alleged deductible, and if so, whether Defendant must apply 100% of expenses and losses toward an elected deductible as set forth in Fla. Stat. §627.739; and whether Defendant properly exhausted benefits in this matter.
POSITIONS OF THE PARTIES
Plaintiff contends that Defendant has no evidence showing that the insured actually elected the alleged deductible. Defendant’s Corporate Representative testified at deposition that the Pip file did not contain a copy of a form with the insured’s signature showing the election of the deductible contained on the declarations page, but that the policy shows the insured elected the deductible. Instead, Defendant relies on the Declarations Page and the Policy. Plaintiff alternatively contends that if this Court determines that Defendant does not need to produce a signed election form, then the method of applying fee schedule reimbursement limitations was in error, resulting in underpayment to Plaintiff in the amount of $13.74. Plaintiff further argues that any exhaustion of benefits was gratuitous in nature by virtue of Defendant’s failure to reserve the claimed amount as required under Fla. Stat. 627.736(4)(c) and overpayments to ACI Flagler and the hospital.
Defendant contends it is not required to show a signed deductible election form by the insured because under Fla. Stat. 627.739 it is not required. Defendant further contends that that the statue requires that they provide the insured with the option to have a reduced premimune by electing to have a deductible. Defendant contends that the statue serves to place the insured on notice and no signed form is required. Defendant also contends that Plaintiff does not have standing to contest the election of the deductible as the provider only steps into the shoes of the assignee and can only challenge what has been assigned to them, the pip benefits. Defendant’s position is that Plaintiff cannot challenge any terms of the contract as they do not represent the insured in the matter, therefore have no standing. Defendant further argues that it properly reduced the medical claims to fee schedule reimbursement limitations prior to application of the deductible. Finally, Defendant contends that it properly exhausted all contractual benefits under this claim and Plaintiff is not entitled to any further payments.
CONCLUSIONS OF LAW
DEDUCTIBLE ELECTION
Florida Statute requires an insurer to allow optional limitations on PIP coverage by means of a deductible; however, it is only the named insured who may elect these modified coverages. Defendant has no proof to establish a modified coverage by the named insured. There is no such evidence before the court that would support Defendant position that the insured elected a deductible. Accordingly, the Plaintiff is entitled to Final Summary Judgment as a matter of law as there is not admissible evidence before this court that a deductible was elected by the named insured or applicable in this matter.
Florida Statute §627.739, entitled, “Personal injury protection; optional limitations; deductibles.” sets forth the election requirements multiple times:
(1) The named insured may elect a deductible or modified coverage or combination thereof to apply to the names insured and dependent relatives residing in the same household, but may not elect a deductible or modified coverage to apply to any other person covered under the policy.
(2) Insurers shall offer to each applicant and to each policyholder, upon the renewal of an existing policy, deductibles, in the amounts of $250, $500, and $1000. 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). However, this subsection shall not be applied to reduce the amount of any benefits received in accordance with s. 627.736(1)(c).
(3) Insurers shall offer coverage wherein, at the election of the named insured, the benefits for loss of gross income and loss of earning capacity described in s. 627.736(1)(b) shall be excluded.
(4) The named insured shall not be prevented from electing a deductible under the subsection (2) and modified coverage under subsection (3). Each election made by the named insured under this section shall result in an appropriate reduction of premium associated with that election.
(5) All such offers shall be made in clear and unambiguous language at the time the initial application is taken and prior to each annual renewal and shall indicate that a premium reduction will result from each election. At the option of the insurer, the requirements of the preceding sentence are met by using forms of notice approved by the office, or by providing the following notice in 10-point type in the insurer’s application for initial issuance of a policy of motor vehicle insurance and the insurer’s annual notice of renewal premium:
For personal injury protection insurance, the named insured may elect a deductible and to exclude coverage for loss of gross income and loss of earning capacity (“lost wages”). These elections apply to the named insured along, or to the named insured and all dependent resident relatives. A premium reduction will result from these elections. The named insured is hereby advised not to elect the lost wage exclusion if the named insured or dependent resident relatives are employed, since lost wages will not be payable in the event of an accident.
(Emphasis added).
Defendant’s Corporate Representative testified at deposition that the Pip file did not contain a copy of a form with the insured’s signature showing the election of the deductible contained on the declarations page, but that the policy shows the insured elected the deductible. Defendant has no documentation to support an election of the PIP deductible by the named insured. If the named insured may elect a deductible or modified coverage or some combination thereof to apply to the named insured alone, name insured and dependent relatives residing in the same household is interpreted to mean that the insured must take some step to say they want a deductible. Absent something that says they want a deductible, Defendant cannot claim a deductible was properly elected. Additionally, the declarations page shows no “premium reduction” for the claimed deductible associated with this policy of insurance. Defendant has no record evidence or proof of the election of a deductible, therefore, Plaintiff’s bill and all other bills received under this claim should not have been subject to any alleged PIP deductible. Defendant has failed to produced collateral source evidence to support the election of the alleged deductible; therefore this Court finds that Plaintiff is still entitled to recover the sum of $413.50 in benefits and accrued statutory interest. This court is bound by the holding in Progressive Select Ins. Co. v. Florida Hospital Medical Center a/a/o Jonathon Parent, 236 So. 3d 1183 (Fla. 5th DCA 2018) [43 Fla. L. Weekly D2463b] as it relates to the application of the deductible.
EXHAUSTION ISSUE
The final issue is whether Defendant improperly failed to reserve benefits, despite the clear and unequivocal language requiring it to do so. Defendant improperly exhausted the benefits which are required to be reserved under the plain language of Fla. Stat. §627.736(4)(c), specifically created for payment to “priority providers” like Plaintiff. After Plaintiff submitted its bill for payment, Defendant exhausted benefits by making improper payments to “unprotected” providers of unrelated services, thereby resulting in gratuitous payments. Exhaustion of benefits is not a defense in this scenario. Judges from many circuits have ruled consistent with this position. However, this Court is bound by Auto-Owners Insurance Co. v. Florida Emergency Physicians, Kang & Associates M.D. P.A., a/a/o Nicole Lockeywerner, Appellate Case No: 2014-000067-A-O, (Fla. 9th Jud. Cir., Appellate Capacity, Orange County, 2016) [23 Fla. L. Weekly Supp. 513a], which held:
Section 627.736(4)(c), in addition to requiring insurers to set aside $5000.00 to pay emergency service providers, states, “After the 30-day period, any amount of the reserve for which the insurer has not received notice of a claim from a physician or dentist who provided emergency services and care or who provided hospital inpatient care may then be used by the insurer to pay other claims (emphasis added). The emphasized language specifically instructs insurers that only the amount in the reserve that has not been claimed may be used to pay other claims after the thirty days has run. The corresponding action is that the amount in the reserve that has been “claimed” (not necessarily paid out), within the thirty days, may not be used to pay other claims. If the insurer were not required to hold the disputed portion of a claim submitted within the thirty days in reserve, then the emphasized language would be unnecessary. Using “claim” indicates that it is the claimed amount that is held in reserve, not an undisputed amount or any amount that the insurer deems reasonable.
This Court is also bound by United Services Automobile Association v. Emergency Physicians of Central Florida, LLP, as assignee of Barbara Maughan, Ninth Judicial Circuit Appellate Case No. 2012-AP-1 (January 30, 2014) [23 Fla. L. Weekly Supp. 302b]. For the above reasons, this Court finds that benefits exhausted is not a defense in this matter.
Accordingly, it is hereby, ORDERED AND ADJUDGED:
1. Plaintiff’s Motion for Final Summary Judgment is GRANTED.
2. Plaintiff shall recover from Defendant the sum of $413.50 in benefits plus accrued interest at 4.97% for which sum let execution issue.*
4. [Editor’s note: numbering is as it appears on court document.] 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 shall accrue at the current statutory interest rate on this judgment pursuant to Fla. Stat. § 55.03.
