26 Fla. L. Weekly Supp. 508a
Online Reference: FLWSUPP 2606LESLInsurance — Personal injury protection — Discovery — Reasonableness of charges — Usual and customary charges satisfy the “reasonable expense” mandate of PIP statute — Insurer not entitled to additional discovery on issue of reasonableness where insurer limited its payment to 75% of billed amounts and in its explanation of benefits informed provider that allowable amount was calculated pursuant to statute limiting reimbursement to 75% of provider’s usual and customary charges for emergency services
FLORIDA HOSPITAL MEDICAL CENTER, as assignee of Marcus Leslie, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2015-SC-5123-O. May 30, 2017. Eric H. DuBois, Judge. Counsel: David B. Alexander, for Plaintiff. Joshua Hawes, for Defendant.
ORDER
THIS MATTER having come before this Honorable Court on 1) Plaintiff’s Motion for Protective Order; 2) Defendant’s Motion to Compel Deposition Dates; 3) Defendant’s Motion to Strike Objections and/or Motion to Compel Better Responses to Interrogatories; and 4) Defendant’s Motion to Compel Better Responses and Motion to Compel Responsive Documents and this Honorable Court having been advised of consent of counsel and being otherwise fully advised in the premises:
1. This lawsuit was filed by the Plaintiff as a breach of contract action seeking overdue Personal Injury Protection benefits from Defendant. The date of the accident was February 4, 2011 and Plaintiff rendered its services on February 4, 2011. Plaintiff’s bill was submitted to the Defendant, who issued a partial payment and an Explanation of Benefits for each of the CPT codes submitted. The explanation code “989” is defined by Defendant as “[t]he allowable amount has been calculated pursuant to Florida Statute 627.736(5)(2008) which limits reimbursement to 75% of the hospital’s usual and customary charges for emergency services.” Thereafter, Plaintiff served the requisite pre-suit demand letter/Notice of Intent to Initiate Litigation prior to filing this lawsuit and Defendant’s March 11, 2015 response included the following language: “[p]lease be advised, the charges were paid pursuant to Florida Statute 627.736(5) (2008) which limits reimbursement to 75% of the hospital’s usual and customary charges for emergency services.”
2. The argument by counsel for both parties hinges on the interplay of the appellate case law interpreting the permissive schedule of maximum charges found in Fla. Stat. 627.736(5)(a)2. and a recent appellate decision from the Fifth District Court of Appeal, Progressive Select Ins. Co. v. Emergency Physicians of Central Florida, LLP, as assignee of Samantha Jordan and Elizabeth Figueroa, 202 So. 3d 437 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D2145a] hereinafter referred to as “Jordan and Figueroa”. Defendant is seeking “reasonableness” discovery in the form of better interrogatory answers, better responsive documents, and a deposition of the Plaintiff’s Corporate Representative.
3. According to Jordan and Figueroa, “[u]nder the statute, reasonableness is determined by ‘usual and customary charges,’ ‘reimbursement levels in the community,’ and ‘various federal and state medical fee schedules applicable to automobile and other insurance coverages.’ §627.736(5)(a)1., Fla. Stat. (2008).” Id.
4. The actions undertaken by the Defendant in this matter have established evidence that the submitted charges by Plaintiff were the “hospital’s usual and customary charges.” The adoptive admission by the Defendant is located clearly on the Defendant’s own Explanation of Benefits form under its definition of Explanation Code “989.” Defendant requests the Court to ignore that in applying the 75% limitation of Fla. Stat. §627.736(5)(a)2.b., that Defendant first determined and accepted the submitted medical bill as the Plaintiff hospital’s usual and customary charges. According to the binding appellate decisions, usual and customary charges satisfy the reasonable expense mandate under the PIP statute. See generally, Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]; Progressive Select Ins. Co. v. Emergency Physicians of Central Florida, LLP, as assignee of Samantha Jordan and Elizabeth Figueroa, 202 So. 3d 437 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D2145a]. There is no “additional” fact-dependent inquiry necessary given the actions taken by the Defendant in this claim and the record evidence already before this Court.
5. Defendant cites Fla. Stat. §627.736(4)(b) in support of its position that it can challenge the reasonableness of Plaintiff’s billed amount at any time. However, Defendant’s position surrounding Fla. Stat. §627.736(4)(b) fails to account for the fact that Defendant indisputably determined Plaintiff’s billed amount was Plaintiff’s usual and customary charges. Based on the plain language of the statute and the actions taken by the Defendant in this matter, Plaintiff’s bill as described in Fla. Stat. §627.736(4)(b) could not violate (4)(b), as “the amount of the charge was [not] in excess of that permitted under, or in violation of, subsection (5).” Fla. Stat. §627.736(4)(b) (2008). Any evidence of a determination of usual and customary charges satisfies “subsection (5).”
6. Defendant’s request for additional discovery must be denied by this Court. Defendant cannot challenge the reasonableness of Plaintiff’s charge when Defendant utilized Plaintiff’s usual and customary charges in arriving at its payment decision. Based on the actions undertaken by the Defendant, any additional discovery as to whether the charge submitted was the “hospital’s usual and customary charge” i.e. “reasonable” is not necessary. To order further discovery from a party on a fact already admitted would result in annoyance, undue burden and expense to both sides in this litigation. While discovery in a civil case must be relevant to the subject matter of the case, a party and a litigant are not entitled to carte blanche irrelevant discovery as it “may reasonably cause material injury of an irreparable nature.” Allstate Ins. Co. v. Langston, 655 So. 2d 91 (Fla. 1995) [20 Fla. L. Weekly S217a].
7. The legal issue for this Court to determine is whether or not the Defendant’s policy of insurance properly elected the schedule of maximum charges or in other words whether the Plaintiff can obtain a final judgment showing a contract, breach of said contract and damages based on the controlling case law.
IT IS THEREFORE, ORDERED AND ADJUDGED that:
1. Plaintiff’s Motion for Protective Order is hereby GRANTED.
2. Defendant’s Motion to Compel Deposition Dates is hereby DENIED.
3. Defendant’s Motion to Strike Objections and/or Motion to Compel Better Responses to Interrogatories is hereby DENIED.
4. Defendant’s Motion to Compel Better Responses and Motion to Compel Responsive Documents is hereby DENIED.
