26 Fla. L. Weekly Supp. 54a
Online Reference: FLWSUPP 2601EBANInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — PIP policy that tracks verbatim the language of section 627.736(5)(a) provides clear and unambiguous notice of election to limit reimbursement to permissive statutory fee schedules — No merit to argument that policy language regarding application of deductible creates competing payment methodology where language merely expresses insurer’s intent to apply deductible to fee schedule amount
HOLLYWOOD INJURY REHABILITATION, CENTER, INC., a/a/o Derrick Ebanks, Plaintiff, v. INFINITY INDEMNITY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COSO 14-013397. March 28, 2018. John D. Fry, Judge. Counsel: Todd A. Landau, Landau & Associates, P.A., for Plaintiff. Gladys Perez Villanueva, Shutts & Bowen, LLP, for Defendant.
ORDER ON COURT’S MOTION TO LIMIT ISSUEOF THE SUFFICIENCY OF DEFENDANT’S POLICYLANGUAGE FOR APPLICATION OFSTATE FARM V. CARE WELLNESS CENTER
This matter came before the Court upon the Court’s motion to limit the issue of the sufficiency of Infinity Indemnity Insurance Company (“INFINITY” ‘s) policy language on March 23, 2018. Plaintiff, Hollywood Injury Rehabilitation Center, Inc., was represented by Todd Landau, Esq. of Todd Landau, P.A., and Defendant, INFINITY, was represented by Gladys Perez Villanueva, Esq. of Shutts & Bowen. The Court, having heard argument of the Parties, considered the court file and applicable case law, and being otherwise duly advised in the matter, makes the following findings of fact and conclusions of law.Material Facts
On March 14, 2018, the Fourth District Court of Appeal issued its opinion in State Farm Mutual Automobile Insurance Company v. Care Wellness Center, LLC (a/a/o Virginia Bardon-Diaz), Case No. 4D16-2254 (Fla. 4th DCA Mar. 14, 2018) [43 Fla. L. Weekly D573a]. The appellate court held that “an insurer must reduce the provider’s charges to the statutorily-approved permissive fee schedule before applying the deductible.” The instant case involves the application of the deductible, and, therefore requires an initial determination of whether under Geico General Insurance Company v. Virtual Imaging Services, 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a], INFINITY’s policy provides notice of an election to use fee schedules in section 627.736, Florida Statutes, before this Court may consider the application of the deductible as set forth in Bardon-Diaz.
The policy sub judice contains the following pertinent language:
“Medical expenses” means reasonable expenses for medically necessary medical, surgical, x-ray, dental, and rehabilitative services, including prosthetic devices and medically necessary ambulance, hospital and nursing services if the insured receives initial services and care within 14 days after the motor vehicle accident.
(a) Reimbursement for medical expenses shall be limited to and shall not exceed 80% of the schedule of maximum charges set forth in Section 624.736(5)(a)(1) Florida Statutes as follows:
1. For emergency transport and treatment by providers licensed under Chapter 401 of the Florida Statutes, 200 percent of Medicare;
2. For emergency services and care provided by a hospital licensed under Chapter 395 of the Florida Statutes, 75 percent of the hospital’s usual and customary charges;
3. For emergency services and care as defined by Section 395.002 of the Florida Statutes, provided in a facility licensed under Chapter 395 rendered by a physician or dentist, and related hospital inpatient services rendered by a physician or dentist, the usual and customary charges in the community;
4. For hospital inpatient services, other than emergency services and care, 200 percent of the Medicare Part A prospective payment applicable to the specific hospital providing the inpatient services;
5. For hospital outpatient services, other than emergency services and care, 200 percent of the Medicare Part A Ambulatory Payment Classification for the specific hospital providing the outpatient services; and
6. For all other medical services, supplies and care, 200 percent of the allowable amount under:
i) The participating physicians fee schedule of Medicare Part B, except as provided in subparagraphs ii) and iii) below.
ii) Medicare Part B, in the case of services, supplies and care provided by ambulatory surgical centers and clinical laboratories.
(iii) The Durable Medical Equipment Prosthetics/Orthotics and Supplies fee schedule of Medicare Part B, in the case of durable medical equipment.
However, if such services, supplies or care is not reimbursable under Medicare Part B, as provided above, we will limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under Section 440.13 of the Florida Statutes, and rules adopted thereunder which are in effect at the time such services, supplies or care is provided. Services, supplies or care that is not reimbursable under Medicare or workers’ compensation will not be reimbursed by us.
Limits of Liability — Part B Only
The amount of any deductible stated on the Declarations Page shall be deducted from the total amount of all loss and expense incurred by or on behalf of each person to whom the deductible applies and who sustains bodily injury as the result of any one accident. If the total amount of such loss and expense exceeds such deductible, the total limit of benefits we are obligated to pay shall then be based on the difference between such deductible amount and the total amount of all loss and expense incurred, subject to the $10,000 limit of benefits.
Conclusions of Law
This Court, for the reasons that follow, finds that INFINITY’s policy provides notice of an election to use the permissive fee schedules in Florida’s No-Fault statute. Essential to this Court’s analysis is the fact that section 627.736(5)(a), Florida Statutes (2013), and INFINITY’s policy language are identical. Because INFINITY’s policy tracks the statutory language verbatim, it provides express notice to the insured (as well as assignees) that it has elected to apply limitations set forth in section 627.736(5)(a) to PIP reimbursements.
Indeed, the insured is expressly put on notice of the exact reimbursement levels which will be applied. While statutory language does not have to be adopted verbatim in order to give notice to an affected party, the tracking of statutory language provides unambiguous notice of matters contained in the law. See QBE Ins. Co. v. Chalfonte Condo. Apartment, 94 So. 3d 541 (Fla. 2012) [37 Fla. L. Weekly S395a] (insurance policy substantially complied with statutory requirements by tracking statutory language, although in different font); Florida League of Cities v. Administration Comm’n, 586 So. 2d 397, 414 (Fla. 1st DCA 1991)(explaining that “notice does not have to track any particular language or recite statutory provisions verbatim, so long as it clearly informs the affected party of its rights. . .”); see also Martin Memorial Hosp. Ass’n v. Dep’t of Health and Rehabilitative Serv., 584 So. 2d 39, 40 (Fla. 4th DCA 1991)(concluding that although agency rule required a resolution to “track, verbatim, the language of the statute,” said requirement “did not mean word-for-word use of the exact language of the statute,” rather only that it comply with the statutory requirements). In Nationwide Mutual Fire Ins. Co. v. Markow, 720 So. 2d 322 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D2542a], the court decided a case directly on point. There, the court determined that there was no ambiguity in annual notices sent by the insurance company regarding liability to insureds for uninsured motorist (UM) benefits under the applicable UM statute. The court reasoned that the notices were unambiguous because the notices “tracked verbatim the language of the statute concerning the UM coverage options available to the insured.” Id. at 323. Moreover, the court noted that it was the insured’s “responsibility to consider all information supplied with the premium notices, and once [insurer] fulfilled its statutory duty to inform her of available coverage, it was not required to do more.” Id. See also Cantrell v. State, 403 So. 2d 977 (Fla. 1981)(where language of information tracked language of statute, sufficient to charge a criminal violation); State v. DiGuillio, 413 So. 2d 478, 479 (Fla. 2d DCA 1982)(tracking statutory language in the information was sufficient to place defendant on notice as to acts proscribed by statute). In the case at bar, the statute delineates reimbursement levels and methodology for determining reimbursement for a reasonable medical service, supply, or care. Thus, the insured or assignee is clearly informed of reimbursement rights under the Policy.
Plaintiff argues that INFINITY’s policy language pertaining to the application of the deductible as set forth in the “Limits of Liability — Part B Only” section creates a competing payment methodology. This Court disagrees.
In Virtual, the Florida Supreme Court announced that “there are two different methodologies for calculating reimbursements to satisfy the PIP statute’s reasonable medical expenses coverage mandate.” 141 So. 3d at 156 (emphasis added). INFINITY’s deductible language is not a methodology for calculating reimbursements and has no bearing on whether this Court may properly apply Bardon-Diaz. A plain reading of the policy’s deductible language leads to the conclusion that it amounts to no more than INFINITY’S intent to apply the deductible to the fee schedule amount and provide the precise calculation, i.e., the difference between loss and expense and the deductible, subject to policy limits. INFINITY’s reduction of the provider’s charges to the permissive fee schedule and then subtracting the deductible amount is precisely the formula required under Bardon-Diaz.
IT IS THEREFORE ORDERED AND ADJUDGED:
The Court, having found that INFINITY’s policy clearly and unambiguously elects the permissive fee schedules in 627.736, Florida Statutes, and that the policy does not contain a secondary methodology for determining payment reimbursements, orders the filing of this Order in all cases where Plaintiff is challenging INFINITY’s deductible application in Division 70.
