26 Fla. L. Weekly Supp. 127a
Online Reference: FLWSUPP 2602MJOSInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — PIP policy that states that insurer will determine to be unreasonable any charges that exceed maximum charges set forth in section 627.736(5)(a)2 and will limit reimbursement to 80% of schedule of maximum charges provides clear and unambiguous notice that insurer will limit reimbursement through use of permissive statutory fee schedules — Conclusory self-serving affidavit filed by medical provider on issue of whether insurer correctly calculated reimbursement amount is stricken — Summary judgment is entered in favor of insurer
SILVERLAND MEDICAL CENTER a/a/o Mealane Joseph, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 2014-673-SP-23 (01), April 7, 2017. Don S. Cohn, Judge. Counsel: Richard Patino, The Patino Law Firm, Hialeah, for Plaintiff. Shelby L. Cohen, Progressive PIP House Counsel, Medley, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FORFINAL SUMMARY JUDGMENT AND MOTION TOSTRIKE AFFIDAVIT AND TESTIMONYOF EDUARDO RAMIREZ, D.C.
THIS CAUSE came before the Court upon Defendant, Progressive American Insurance Company’s (“Defendant”) Motion for Summary Judgment and Defendant’s Motion to Strike Affidavit and Testimony of Eduardo Ramirez, DC. After hearing extensive oral argument on March 28, 2017, and reviewing all documents filed by the parties and the authorities cited therein, the Court finds as follows:
I. PROCEDURAL HISTORY
Plaintiff filed this action against Defendant in small claims court on March 11, 2014. On April 1, 2015, Defendant filed its Motion for Summary Judgment and Memorandum of Law. On October 14, 2016, this Court scheduled the hearing on Defendant’s Motion for Summary Judgment to take place on March 28, 2017. On March 1, 2017, Defendant filed its Amended Motion for Summary Judgment and Memorandum of Law. On March 23, 2017, Plaintiff filed its Affidavit of Eduardo Ramirez, DC, in opposition to Defendant’s Motion for Summary Judgment. On March 24, 2017, Defendant filed a Motion to Strike Affidavit and Testimony of Eduardo Ramirez, DC, which was filed by Plaintiff in opposition to Defendant’s Motion for Summary Judgment. Ultimately, on March 28, 2017, the Court heard oral argument on the issues ruled upon in this Order.
II. FINDINGS OF FACT
Plaintiff alleges that Progressive’s insured, Mealane Joseph, was injured in an automobile accident on 12/9/2012. At the time of the alleged accident, Joseph was insured by an automobile insurance policy issued by Progressive. The policy contract that governs this case is form 9610A (10/05), subject to the A041 FL (06/11) Endorsement (hereinafter “A041 Endorsement”). See Amended Affidavit of Lacy A. Pisani. Part II(A) of 9610A FL (10/05) (the part of the contract related to PIP coverage) was deleted and replaced by the A041 Endorsement. See Amended Affidavit of Lacy A. Pisani. Progressive alleges that its A041 Endorsement provides clear and unambiguous notice to its insured that Progressive will pay PIP benefits in accordance with the payment methodologies permitted in Fla. Stat. §627.736(5)(a)2 (2008).
Plaintiff alleges that it provided Joseph medical services to treat her alleged injuries arising out of the subject accident, pursuant to an assignment of benefits. Progressive received Plaintiff’s health insurance claim forms for the following dates of service: 12/14/12 to 12/28/12. See Amended Affidavit of Lacy A. Pisani. Pursuant to Fla. Stat. §627.736 (2008) and Progressive’s A041 Endorsement, Progressive allowed $1,352.72 for Plaintiff’s bills for the date of service at issue in this case. See Amended Affidavit of Lacy A. Pisani. Progressive issued payment to the Plaintiff for 80% of the allowable amount (payment in the amount of $1,082.18 was issued).
III. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE AFFIDAVIT AND TESTIMONY OF EDUARDO RAMIREZ, DC
a.
Standard of Review
On a motion for summary judgment, the moving party must prove the absence of a genuine issue of material fact. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). The moving party’s proof must overcome all reasonable inferences drawn in favor of the opposing party. Id. The non-moving party will only be required to prove that issues of material fact exist once the moving party has satisfied its burden. Id.
b. The Insurance Policy Incorporates The Participating Physician Payment Schedule Under Medicare Part B
The policy contract that governs this case is form 9610A (10/05), subject to the A041 FL (06/11) Endorsement (hereinafter “A041 Endorsement”). On January 26, 2017, the Florida Supreme Court issued its opinion in Allstate Ins Co. v. Orthopedic Specialists, No. SC 15-2298 (Florida Supreme Court, Jan. 26, 2017) [42 Fla. L. Weekly S38a]. In Orthopedic Specialists, the Florida Supreme Court found that for an insurer to rely on the Medicare Fee Schedule, all that was required in the insurer’s policy was “simple notice” of the insurer’s intent to rely on the fee schedule, and that there were no “magic words” required to meet that notice. Specifically, the Court on pages 8-9 of its opinion ruled as follows, while quoting the First District Court of Appeal:
“Virtual Imaging requires no other magic words from Allstate’s policy and its simple notice requirement is satisfied by Allstate’s [unambiguous] language limiting ‘[a]ny amounts payable’ to the fee schedule-based limitations found in the statute.”
The Court finds that the Defendant’s A041 Endorsement properly incorporates the fee schedules stated in Fla. Stat. § 627.736(5), based on the recent case law from the Florida Supreme Court. It clearly, unambiguously and specifically adopts the statutory language and informs the insured that reimbursement will be limited to 80% of the schedule of maximum charges enumerated in Fla. Stat. § 627.736(5). Allstate Inc. Co. v. Orthopedic Specialists, No. SC 15-2298 (Florida Supreme Court, Jan. 26, 2017) [42 Fla. L. Weekly S38a]; GEICO v. Virtual Imaging Services Inc., 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]; Kingsway Amigo Insurance Co. v. Ocean Health, Inc., 63 So. 3d 63, 64 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a]. Progressive’s A041 Endorsement goes further than required under Fla. Stat. §627.736(5) and provides clear and unambiguous notice to its insured that Progressive will limit payment in accordance with Fla. Stat. §627.736(5), and in doing so meets the simple notice requirement of Fla. Stat. §627.736(5). Defendant put all interested parties on actual notice of its intention to utilize the fee schedules, as set forth in its policy and the Florida No-Fault Statute.
The Court gives effect to the plain meaning of statutes. It is “axiomatic that all parts of a statute must be read together in order to achieve a consistent whole,” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992), “Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Id. See also State v. Goode, 830 So. 2d 817, 824 (Fla. 2002) [26 Fla. L. Weekly D131a] (“The Legislature does not intend to enact useless provisions, and courts should avoid readings that would render a part of the statute meaningless.”).
The applicable Florida Motor Vehicle No-Fault Law states as follows:
1. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
* * *
f. 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. . .
Fla. Stat. 627.736(5)(a)(1)(2013).
Specifically, the material provisions of Progressive’s A041 Endorsement state:
We will determine to be unreasonable 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. Pursuant to Florida law, we will limit reimbursement to, and nay no more than, 80 percent of the following schedule of maximum charges:
. . .
f. for all other medical services, supplies and care, 200 percent of the allowable amount under the participating physicians fee schedule of Medicare Part B. However, if such services, supplies, or care is not reimbursable under Medicare Part B, we will limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under Section 440.13 of the Florida Statues, 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.
(Emphasis added).
There is no question that Defendant incorporated the permissive fee schedule outlined in the Florida No-Fault Law, and clearly and unambiguously elected to pay in accordance with same. As a result, under the insurance policy, Defendant was entitled to reimburse Plaintiff at 80% of 200% of the allowable amount under the participating physician’s fee schedule under Medicare Part B. The only question that remains is whether Defendant indeed paid in accordance with the fee schedule.
c. Defendant Paid Plaintiff in Conformity With The Participating Physician Fee Payment Schedule Under Medicare Part B
In its Motion for Summary Judgment and the Amended Affidavit of Lacy Pisani, Defendant presents evidence that it paid in conformity with the participating physician fee schedule and workers compensation fee schedule where appropriate.
Although Plaintiff argued that the Affidavit of Lacy Pisani is inadmissible, the Court finds that the testimony of Lacy Pisani is admissible. The affiant, Lacy Pisani, is a Litigation/Claim Specialist for Defendant. See Affidavit of Lacy Pisani at ¶ 1. She is the claims adjuster assigned to this lawsuit and insurance claim. Id. at ¶ 2. She is the records custodian for this particular claim file and can attest to the authenticity of such documents. Id. She has also been tasked with handling this particular claim and, therefore, has knowledge of this claim, including the amount Defendant paid for the service at issue, when it was paid, and how it was paid. Id . Given that the information contained within Ms. Pisani’s affidavit is based on her personal knowledge of the claim, the information contained within her affidavit is admissible.
Additionally, Defendant obtained the reimbursement amount for the Medicare Part B participating physician fee payment schedule from the only place where the federal government publishes the information — the CMS website. Defendant presented undisputed evidence of the reimbursement amount for the services Plaintiff provided to the insured on the applicable dates of service as published in the applicable fee schedule established by CMS, a division of the Department of Health and Human Services, and the Florida Dept. of Financial Services, Division of Workers’ Compensation.
Based upon the above, the Court finds that Defendant has presented sufficient evidence that it paid in conformity with the participating physician fee schedule and workers compensation fee schedule where appropriate.
d. Plaintiff’s Affidavit of Eduardo Ramirez, DC, is conclusory and self-serving
The Affidavit of Dr. Ramirez attempts to provide an expert opinion on the issue of whether Plaintiff’s charges were properly reimbursed pursuant to the fee schedules set forth in Fla. Stat. § 627.736(5). However, although Plaintiff presented the Affidavit of Eduardo Ramirez, DC, in an attempt to rebut the amount paid by Progressive, the Court finds that Dr. Ramirez’ Affidavit is conclusory and self-serving, as there is no objective testimony or facts provided to substantiate the statements made therein.
Specifically, in Paragraph 9, Eduardo Ramirez states conclusively that the Defendant did not pay in accordance with the schedule of maximum charges, without providing any factual support or other competent evidence to support this conclusion. In fact, the very statement is a conclusion. In Paragraph 10, Eduardo Ramirez states that Defendant underpaid the Plaintiff for a key CPT code, but fails to state what CPT codes on which date of service he believes were underpaid, the reason for this belief, or the amount of the underpayment. In Paragraph 11, Eduardo Ramirez states that the insurance company underpaid for “E/M codes” and “several physical therapy modalities,” but again, fails to what CPT codes on which date of service he believes were underpaid.
The Court finds that Paragraphs 9, 10 and 11 of the Affidavit, the only portions of the Affidavit which purport to provide an opinion on the amount paid by Progressive, are all conclusory and self-serving to Plaintiff without any facts or evidence to support same.
Conclusory, self-serving statements are not sufficient to either raise a genuine issue of material fact or prove the on existence of a genuine issue of material fact. Heitmeyer v. Sasser, 664 So. 2d 358 (Fla. 4th DCA 1995). A conclusory affidavit of a party is insufficient to create a disputed issue of fact. A party does not create a disputed issue of fact by merely stating factual conclusions. Master Tech v. Mastec, 49 So.3d 789, 791 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D2381a].
Accordingly, based on the foregoing, Defendant’s Motion to Strike the Affidavit and Testimony of Eduardo Ramirez, DC, is GRANTED.
III. CONCLUSION
Given the undisputed evidence that Defendant incorporated the permissive fee schedule outlined in the Florida No-Fault Law, and clearly and unambiguously elected to pay in accordance in its A041 endorsement, and that Defendant reimbursed Plaintiff for the dates of service in compliance with the participating physician fee schedule under Medicare Part B and/or worker’s compensation fee schedule, and the lack of admissible evidence provided by Plaintiff in opposition, this Court finds that there is no genuine issue of material fact and Defendant is entitled to summary judgment as a matter of law.
As the Court has struck the Affidavit of Eduardo Ramirez, DC, the Court finds that the Affidavit is not sufficient to raise a genuine issue of material fact as to whether Defendant properly reimbursed Plaintiff pursuant to the participating physician fee schedule of Medicare Part B and/or the worker’s compensation fee schedule. Plaintiff did not provide any other evidence that the amount reimbursed by the Defendant was not the correct reimbursement amount under the participating physician’s fee schedule of Medicare Part B.
For the foregoing reasons, Defendant’s Motion for Summary Judgment is hereby GRANTED.
FINAL SUMMARY JUDGMENT IS HEREBY ENTERED IN FAVOR OF THE DEFENDANT. PLAINTIFF SHALL TAKE NOTHING BY THIS ACTION AND THE DEFENDANT SHALL GO HENCE WITHOUT DAY. The Court reserves jurisdiction to determine entitlement and amount of attorney’s fees and costs owed to the Defendant, upon timely motion.
