26 Fla. L. Weekly Supp. 998a
Online Reference: FLWSUPP 2612RAMOInsurance — 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. (Victor Ramos), Plaintiff, v. GEICO INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 16-18266 COWE (82). February 6, 2019. Natasha DePrimo, Judge.
ORDER GRANTING PLAINTIFF’S MOTION FORPARTIAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on January 24, 2019 on Plaintiff’s Motion for Final Summary Judgment and Defendant’s Cross-Motion for Summary Judgment. The Court, having reviewed the motion; having reviewed the court file and the parties’ stipulation as to matters of fact; having heard argument of counsel, and being otherwise sufficiently advised in the premises, the Court finds as follows:
1. The subject of this Motion involves a dispute regarding the proper amount of reimbursement for Personal Injury Protection (“PIP”) benefits under an insurance policy issued by the Defendant, GEICO GENERAL INSURANCE COMPANY (hereinafter “GEICO”) to Victor Ramos, when a medical provider’s charge for services is less than the amount allowed under the schedule of maximum charges enumerated in Defendant’s insurance policy.
2. The specific services at issue are for CPT codes 99203, 98941, 97110, and 97530 billed by the Plaintiff to GEICO for these dates of service: May 7, 2015 through September 22, 2015.
3. The section of GEICO’S policy in dispute reads as follows:
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.:
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 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.
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.) (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 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.
The applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect on March 1 of the year in which the services, supplies, or care is rendered and for the area in which such services, supplies, or care is rendered, and the applicable fee schedule or payment limitation applies throughout the remainder of that year, notwithstanding any subsequent change made to the fee schedule or payment limitation, except that it may not be less than the allowable amount under the applicable schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B.
We may use the Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services, including applicable modifiers, to determine the appropriate amount of reimbursement for medical services, supplies, or care if the coding policy or payment methodology does not constitute a utilization limit.
A charge submitted by the provider, for an amount less than the amount allowed above, shall be paid in the amount of the charge submitted. (emphasis added).
4. The emphasized portion of the policy above is the basis of contention in this case.
Legal Analysis
The issue presented to the Court is to determine if the disputed provision is ambiguous. It is well settled under Florida law that the Court’s shall interpret the policy in favor of the Plaintiff. Washington National Ins. Corp. v. Ruderman, 117 So. 3d 943 (Fla. 2013) [38 Fla. L. Weekly S616b]; State Farm Mut. Auto Ins. Co. v. Menendez, 70 So 3d 566 (Fla. 2011) [36 Fla. L. Weekly S469a]; Berkshire Life Ins. Co. v. Adelberg, 698 So. 2d 828 (Fla. 1977). With that principle in mind, the Court must review the disputed provision utilizing fundamental contract interpretation. The Florida Supreme Court just recently readdressed insurance policy contract interpretation in Allstate Insurance Co. v. Orthopedic Specialists, although the Court was addressing the issue of election in the policy, the underlying premise of contract interpretation was discussed. The Court stated
Where the language in an insurance contract is plain and unambiguous, a court must interpret the policy in accordance with the plain meaning so as to give effect to the policy as written.” Washington Nat. Ins. Corp. v. Ruderman, 117 So.3d 943, 948 (Fla. 2013) [38 Fla. L. Weekly S616b]. “Further, in order for an exclusion or limitation in a policy to be enforceable, the insurer must clearly and unambiguously draft a policy provision to achieve that result.” Virtual Imaging, 141 So.3d at 157. “Policy language is considered to be ambiguous . . . if the language ‘is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage.’ ” Travelers Indem. Co. v. PCR Inc., 889 So.2d 779, 785 (Fla. 2004) [29 Fla. L. Weekly S774a] (quoting Swire Pac. Holdings v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla. 2003) [28 Fla. L. Weekly S307d]). “[A]mbiguous insurance policy exclusions are construed against the drafter and in favor of the insured.” Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla. 2000) [25 Fla. L. Weekly S211a]. “To find in favor of the insured on this basis, however, the policy must actually be ambiguous.” Penzer v. Transp. Ins. Co., 29 So.3d 1000, 1005 (Fla. 2010) [35 Fla. L. Weekly S73a] (emphasis omitted).
Allstate Insurance Co., 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a].
The Court went on to say “ ‘when analyzing an insurance contract, it is necessary to examine the contract in its context and as a whole, and to avoid simply concentrating on certain limited provisions to the exclusion of the totality of others.” Allstate Insurance Co., 212 So. 3d 973 (Fla. 2017)(quoting Swire Pac. Holdings v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla. 2003) [28 Fla. L. Weekly S307d]).
This Court finds that GEICO’s policy itself is ambiguous with regards to the disputed provision. GEICO contends that the policy if read as a whole clearly refers back to the subsection A and as such the use of the indented paragraphs demonstrate that subsection A is a modifier to the pertinent language in dispute. The Plaintiff contends that the disputed policy text means exactly what it says — when a medical provider’s charge is less than 80% of the 200% of the allowable amount under the participating physicians’ fee schedule of Medicare Part B. than GEICO shall pay “the amount of the charge submitted.” The Court finds the Plaintiff’s interpretation reasonable. The policy does not clearly indicate a modifier as to this language. Looking at the entire section as a whole and not just focusing on the disputed provision, there is still a lack of clarity. GEICO used a modifier just above this language relaying back to subsection (A)6, but chose not to use a modifier in the disputed provision. Thus, does the disputed language refer back to the original subsection (A)? Does it refer back to subsection (A)6? Or does it not refer back to any subsection but rather stand alone? These questions demonstrate that the disputed provision is unclear and ambiguous even looking in the context of the policy.
As such even if the Court agrees that GEICO’s interpretation is reasonable, there is more than one reasonable interpretation of the same section of the policy. Thereby, leaving the disputed provision as ambiguous.
This specific language was recently addressed by the Honorable Judge Beth Bloom in A&M Gerber Chiropractic LLC. v. Geico General Ins. Co., the Court found
The critical question is whether the phrase “an amount less than the amount allowed above” in the disputed provision refers to “200 percent of the allowable amount under the participating physicians fee schedule of Medicare Part B” or to the 80 percent reimbursement rate in section (A). ECF No. [67-1] at 31. Far from a model of clarity, the Court concludes that the disputed provision is ambiguous. The use of the indented paragraphs, as GEICO argues, can lead to a reasonable interpretation that the disputed provision is modified by the language of section (A) and is therefore only reimbursed at a rate of 80 percent. At the same time, the use of the word “above” in the paragraph that begins with “However” directly refers to subsection (A)6. A consistent application of the word “above” in the disputed paragraph can reasonably lead to an interpretation that it also refers to subsection (A)6 and not section (A). In addition, GEICO chose to explicitly limit reimbursement in the paragraph beginning with “However” to “80% of the maximum reimbursable allowance under workers’ compensation” for charges not reimbursable under Medicare Part B while it also chose not to include such limiting language in the disputed provision. This can also lead to a reasonable interpretation that the disputed provision is not limited to an 80 percent reimbursement rate; otherwise, GEICO would have explicitly stated so. This argument is even more compelling when one considers the Scope-of-Subparts Canon and the fact that both paragraphs are indented. If all indented paragraphs relate to section (A) and its 80 percent reimbursement rate, it begs the question as to why GEICO specified an 80 percent reimbursement rate in the first indented paragraph and not in the disputed paragraph.
If there is more than one reasonable interpretation of an insurance policy, an ambiguity exists and it “should be construed against the insurer.” Pac. Emp’rs Ins., 2007 WL 2900452, at *4. 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.
A&M Gerber Chiropractic LLC. v. Geico General Ins. Co., 291 F. Supp. 3d 1318 (S.D. Fla. 2017) [27 Fla. L. Weekly Fed. D133a].
This Court agrees with the analysis of Judge Bloom in A&M Gerber Chiropractic LLC.
Based on the foregoing, it is ORDERED AND ADJUDGED that the Plaintiff’s Motion is GRANTED, the Court finds that the disputed provision of the policy is ambiguous and must be construed against GEICO. The Defendant’s Cross Motion for Summary Judgment is denied. However, in light of the fact that the Court has granted the Defendant’s Motion for Leave to Amend Answer and Affirmative Defenses, the Court shall treat Plaintiff’s Motion as a Partial Motion for Summary Judgment.
