26 Fla. L. Weekly Supp. 999a

Online Reference: FLWSUPP 2612KIMInsurance — 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

KING HEALTH CENTER, LLC, a/a/o Sihyun Kim, Plaintiff, v. GEICO INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COWE 16-18278 (82). October 5, 2018. Jennifer W. Hilal, Judge. Counsel: Steven Lander, Steven Lander and Associates, P.L., Fort Lauderdale, for Plaintiff. Jacob S. Berger, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT

THIS CAUSE having come on to be heard on September 12, 2018 on Plaintiff’s Motion for Summary Judgment, the Court having been otherwise fully advised in the premises and after reviewing the file, briefs, notices of filing, evidence, and arguments in Court, it is hereby,

ORDERED AND ADJUDGED:

1. Plaintiff’s Motion is GRANTED.

2. The issue before this Court on Plaintiff’s Motion for Summary Judgment is the proper amount of reimbursement for an assigned PIP benefit when a medical provider’s submitted charge is less than the amount allowed under the scheduled of maximum charges enumerated in Fla. Stat. § 627.736(5)(a)(1) and the Geico insurance policy.

3. GEICO’ s Florida Policy provides, in pertinent part:

PAYMENTS WE WILL MAKE

The Company will pay in accordance with the Florida Motor Vehicle No Fault Law (as enacted, amended, or newly enacted), and where applicable in accordance with all fee schedules contained in the Florida Motor Vehicle No Fault Law, to or for the benefit of the injured person:

(A) Eighty percent (80%) of medical benefits which are medically necessary, pursuant to the following schedule of maximum charges contained in the Florida Statutes § 627.736(5) (a)1., (a)2. and (a)3.:

* * *

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. . .

* * *

However, if such services, supplies, or care is not reimbursable under Medicare Part B (as provided in section (A) 6. above), we will limit reimbursement to eighty percent (80%) of the maximum reimbursable allowance under workers’ compensation, as determined under Florida Statutes, § 440.13 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 is not required to be reimbursed by us.

* * *

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.

4. This language has been subject to much litigation. Plaintiff contends that the plain language means exactly what it says — GEICO will pay the full amount of any charges that are less than the amounts allowed under the fee schedule payment methodology. GEICO, however, contends that the policy and PIP statute authorize it to pay 80% of the billed amount. It is undisputed that GEICO allowed the full amount charged for the CPT codes at issue, but only paid 80% even though the charge is less than the amount allowed, 200% of Medicare. It is also undisputed that the policy omits 80% in the paragraph “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,” which is distinct from the other language and paragraphs in the policy.¹

5. This Court elects to follow the well-reasoned opinion of Judge Beth Bloom in A&M Gerber Chiropractic LLC a/a/o Conor Carruthers, on behif of itself and all others similarly situated v. GEICO General Insurance Company, Case No. 16-CV-62610- BLOOM/Valle (S.D. Fla. November 20, 2017) [27 Fla. L. Weekly Fed. D133a]. Judge Bloom in interpreting the text of the actual policy language concluded that it is subject to more than one reasonable interpretation, and therefore, an ambiguity exists, which should be construed against the insurer, which drafted the ambiguous policy:

Here, the Court finds the disputed provision is ambiguous and it must, therefore, construe the provision against GEICO and in favor of Plaintiff. As such, the Court holds that, under the disputed provision, when a health care provider bills for covered services in an amount less than 200% of the fee schedule, GEICO is required to pay the charge as billed without any reduction.

. . .

The disputed provision within the FLPIP (01-13) Endorsement that 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” is interpreted as follows: if a provider submits a bill to GEICO that is less than 200 percent of the applicable fee schedule, GEICO shall pay the provider 100 percent of the amount billed.

6. Therefore, this Court finds that the policy requires that the insurer pay the submitted amount for a charge if it is less than the “amount allowed.” The amount allowed in this policy is the schedule of maximum charges. For the type of services at issue in this case, the relevant portion of the schedule of maximum charges is 200% of Medicare.

7. Furthermore, the policy has listings of the “amount allowed above”:

1. For emergency transport and treatment by providers licensed under Florida Statutes, chapter 401, 200 percent of Medicare.

2. For emergency services and care provided by a hospital licensed under Florida Statutes, chapter 395, 75 percent of the hospital’s usual and customary charges.

3. For emergency services and care as defined by Florida Statutes, § 395.002 provided in a facility licensed under chapter 395 rendered by a physician or dentist, and relate 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 service.

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 sections (II.) and (III.)

(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.

Each of the numbered paragraphs above is an “amount allowed” above for the PIP policy, and this language basically mimics the statute: “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.” In the PIP statute, “the amount allowed under subparagraph 1” correlates to (a)-(f), which is again the listing of the schedule of maximum charges. GEICO changed the permissive “may” to “shall” and is bound by the mandatory language.

8. Furthermore, Plaintiff argued that an insurer is allowed to provide more coverage than the statutory minimums and Plaintiff relied in part on Allstate Ins. Co. v. Holy Cross Hosp., Inc., 961 So.2d 328, 332-33 (Fla. 2007) [32 Fla. L. Weekly S453a], which stated “an insurer could cover medical benefits at 100% instead of the standard 80% required by subsection (1)(a),” as well as Infinity Auto. Ins. Co. v. Sunshine Rehab & Medical, Inc. (a/a/o Osvaldo Borras), 22 Fla. L. Weekly Supp. 675a (Eleventh Cir. Ap. 2015)(citing to State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So. 3d 566, 570 (Fla. 2011) [36 Fla. L. Weekly S469a]”, cert. denied, 2015 WL 5834285 (Fla. 3d DCA 2015)), where the appellate court held a PIP policy that separated the terms “80% of medical expenses” and “200 percent” of the Medicare Part B fee schedule by a page in an endorsement is reasonably inferred to cover either 80% of all medical expenses or 100% of 200% of the Medicare Part B fee schedule without a co-pay, whichever is greater.

9. Under Washington Nat’l Ins. Corp. v. Ruderman, 117 So.3d 943, 948 (Fla. 2013) [38 Fla. L. Weekly S511a], and longstanding doctrine in Florida, the Court must construe the policy against the PIP insurer and drafter and in favor of more coverage. GEICO would like this Court to adopt an interpretation that least favors the insured, which is contrary to longstanding doctrine in Florida that if there is more than one reasonable interpretation then the policy language must be construed in favor of the most possible coverage to the benefit of the insured.

10. Courts are not permitted to revise an otherwise valid insurance policy to make it more reasonable or advantageous for the insurer 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).

11. Therefore, Plaintiff’s Motion is GRANTED due to the ambiguity that exists within the disputed provision, and GEICO must pay the submitted amount if less than the “amount allowed above”, which is 200% of Medicare in this instance.

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¹In this case, the policy only inserts 80% prior to (5)(a)1., (a)2., and (a)3., not (a)5.