26 Fla. L. Weekly Supp. 972c
Online Reference: FLWSUPP 2612BEECInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — PIP policy clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedules — Fact that policy states that insurer will not pay unreasonable benefits and will contest them does not render election of method of reimbursement ambiguous where policy defines unreasonable benefits as any charges that exceed amount to be paid under statutory fee schedules
MOORE CHIROPRACTIC CENTER, INC. as assignee for Paul Beech, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Clay County. Case No. 2016-SC-468 C. June 12, 2017. Timothy R. Collins, Judge. Counsel: Adam Saben, Shuster & Saben, Jacksonville, for Plaintiff. James C. Rinaman, Dutton Law Group, Jacksonville, for Defendant.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
This cause came to be heard on the Motions for Summary Judgment filed by both parties asking the Court to determine whether or not the applicable provisions of the Defendant’s policy related to Personal Injury Protection Coverage clearly and unambiguously selects the permissive payment method of benefits, and the Court having heard the argument of the parties finds as follows:
Section 627.730 through 627.7405 is known as the “Florida Motor Vehicle No-Fault Law.” It includes Section 627.736, “Required personal injury protection benefits; exclusions; priority; and claim.” The “Required Benefits” section referenced in Section 627.736(1) includes “personal injury protection” benefits. The term “medical benefits” in Section 627.736(1)(a) requires payment of “eighty percent of all reasonable expenses for medically necessary . . . services.” In determining whether a charge is “reasonable,” Section 627.736(5)(a) provides that “consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, reimbursement levels in the community and various federal and state medical fee schedules applicable to motor vehicle and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for service, treatment, or supply.”
The legislature’s “reasonable” standard is fair to all parties involved. This method of determining the proper amount of reimbursement is commonly referred to as the “default” method of payment. Originally, the “default” method was the only method of determining the amount paid to providers. However, the “default” method resulted in an overwhelming amount of litigation regarding individual charges in individual cases. Therefore, the legislature amended the statute in 2008 and allowed insurers to elect to pay benefits to providers based upon Medicare fee schedules. Insurers electing this option could avoid litigation with their insureds and/or the providers who accept an assignment of benefits because the amount owed is easily calculated, and therefore, not subject to litigation. This method is generally referred to as the “permissive” method.
The “permissive method” is contained in Section 627.736(5)(a)1. If the insurer elects this method then the insurer and the insured are bound by the election. Practically speaking, when this election is made in the policy, it binds the provider who accepts an assignment of the benefits due the insured.
The parties agree that Progressive Policy Endorsement Form “A041 FL (06/11)” is at issue. The form is attached to this Order in its entirety as an addendum.
The form at issue refers to “unreasonable or unnecessary medical benefits.” The first sentence of the form says, “If an insured person incurs medical benefits that we deem to be unreasonable or unnecessary, we may refuse to pay for those medical benefits and contest them.” Plaintiff’s counsel argues that the words “unreasonable” and “contest” show that this is not a clear and unambiguous selection of the permissive payment method.
Instead of attempting to define reasonable benefits, the Defendant defines “unreasonable” benefits as “any charges incurred that exceed the maximum charges set forth in Section 627.736(5)(a)(2)(a through f) of The Florida Motor Vehicle No Fault Law, as amended.”1 The Defendant’s Endorsement merely states that any charges that exceed the amounts to be paid under the permissive payment method are not reasonable, and they reserve the right to contest them.
The Plaintiff next takes issue with the sentence in the next to last paragraph “We will reduce any payment to a medical provider under this Part 11(A) by any amounts we deem to be unreasonable medical benefits.” Again, by using the definition in the endorsement of the word “unreasonable” in this sentence only means that “any charges incurred that exceed the maximum charges “of the permissive payment method will be reduced.
Finally, the Plaintiff argues that the last paragraph of the endorsement somehow creates an ambiguity. This paragraph protects the insured and has nothing to do with calculation of the amount paid.
This Court believes the above analysis is consistent with Allstate Insurance v. Orthopedic Specialists, 2017 WL 372092 (Fla.2017) [42 Fla. L. Weekly S38a] and finds that the Defendant’s Endorsement Form A041 FL (06/11) clearly and unambiguously selects the permissive payment method allowed by Florida.
Therefore, it is,
ORDERED AND ADJUDGED:
1. The Plaintiff’s Motion for Summary Judgment is DENIED.
2. The Defendant’s Motion for Summary Judgment is GRANTED.
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1In the 2011 Florida Statutes Subsection (5)(a)(2) sets forth the permissive method. In the current statute it is Subsection (5)(a)(1) that sets forth the permissive method.
