26 Fla. L. Weekly Supp. 430a
Online Reference: FLWSUPP 2605LASKInsurance — Personal injury protection — Coverage — Medical expenses — Where PIP policy providing that charge submitted for amount less than amount allowed above shall be paid in amount of charge submitted is ambiguous as to whether “amount allowed above” is 200% of allowable amount under Medicare Part B fee schedule or 80% of that amount, 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
VALENTINE CHIROPRACTIC, INC. (Paola Laskar), Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 16-007854 COCE (54). March 22, 2018. Florence Taylor Barner, Judge. Counsel: Mac S. Phillips, Phillips Tadros, P.A., Fort Lauderdale, for Plaintiff. Jacob Berger, Law Offices of George L. Cimballa, III, Geico Staff Counsel, Plantation, for Defendant.
AMENDED FINAL JUDGMENT IN FAVOR OF PLAINTIFF
THIS CAUSE came before the Court on March 7, 2018 for hearing on Plaintiff’s Amended Motion for Summary Judgment, and the Court, having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument; having a thorough review of the matters filed of record; and having been sufficiently advised in the premises,
ORDERS AND ADJUDGES as follows:
1. The parties stipulated that there are no facts in dispute, and the sole issue presented to the Court for adjudication is whether Geico was obligated to pay 80% or 100% of the charges at issue. For the reasons set forth below, Geico was obligated to pay 100% of the charges that are less than 200% of the allowable amount under the participating physicians fee schedule of Medicare Part B. Accordingly, Plaintiff’s Amended Motion for Summary Judgment is GRANTED and final judgment is hereby entered in Plaintiffs favor.
Findings of Fact
2. Paola Laskar (the “patient”) was insured by Geico when she was involved in a car accident on June 21, 2014.
3. Plaintiff performed chiropractic services for the patient under an assignment of benefits between June 24, 2014 through July 11, 2014 in Fort Lauderdale, Florida.
4. Among the services Plaintiff provided were new outpatient office visit (CPT 99203) and chiropractic manipulation therapy (CPT 98941).
5. Plaintiff charged $175 for CPT 99203, which is less than 200% of the allowable amount under the participating physicians fee schedule from Medicare Part B ($228.60). Plaintiff charged $65 for CPT 98941, which is less than 200% of the allowable amount under the participating physicians fee schedule from Medicare Part B ($86.16). Plaintiff performed CPT 99203 on 1 service date and performed CPT 98941 on 2 service dates.
6. Geico paid 80% of the amounts charged for CPT 99203 and 98941, even though Plaintiff’s charges for these services are less than 200% of the allowable amount under the participating physicians’ fee schedule of Medicare Part B (the portion of the statutory schedule of maximum charges that applies to the non-hospital, non-emergency services at issue here).
7. The insurance contract states:
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.:
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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.
(emphasis added). The emphasized policy text is the point of contention in this case.Conclusions of Law
The only disputed issue in this case is whether Geico was obligated to pay the full amount charged for CPT 99203 and 98941, or whether it was authorized to pay only 80%. Geico’s policy states that “[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.”
Plaintiff interprets this language to mean that for the chiropractic services at issue in this case, Geico must pay 100% of all charges that are less than 200% of the allowable amount under the participating physicians fee schedule of Medicare Part B. Geico disputes that this language results in a waiver of the patient’s 20% co-insurance obligation for charges that are less than 200% of the Medicare Part B fee schedule amounts.
This Court concludes that the Plaintiff’s interpretation is reasonable; when a medical provider’s charge is lower than the amount allowed by the schedule of maximum charges, Geico obligated itself to pay the full amount of the charge. But even if Geico’s interpretation can also be considered reasonable, then we are left with two reasonable interpretations of the same policy language. Under well settled Florida law, the Court must interpret the policy in favor of the Plaintiff. See, e.g., Washington Nat’l Ins. Corp. v. Ruderman, 117 So.3d 943, 948-50 (Fla. 2013) [38 Fla. L. Weekly S511a], citing, State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So.3d 566, 569-70 (Fla. 2011) [36 Fla. L. Weekly S469a] (“[W]here the provisions of an insurance policy are at issue, any ambiguity which remains after reading each policy as a whole and endeavoring to give every provision its full meaning and operative effect must be liberally construed in favor of coverage and strictly against the insurer”); Berkshire Life Ins. Co. v. Adelberg, 698 So.2d 828, 830 (Fla. 1997) [22 Fla. L. Weekly S513a](It has long been a tenet of Florida insurance law that an insurer, as the writer of an insurance policy, is bound by the language of the policy, which is to be construed liberally in favor of the insured and strictly against the insurer”).
This Court agrees with the analysis and conclusion set forth in the Omnibus Order entered on November 20, 2017 in A & M Gerber Chiropractic, LLC v. Geico Gen. Ins. Co., 2017 WL 5571353, *18-19 (S.D. Fla. 2017) [27 Fla. L. Weekly Fed. D133a]. There, the court was tasked with interpreting the identical language at issue in this case and determined that it was ambiguous:
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.
Because the Court finds the disputed provision is ambiguous, it must construe it against Geico and in favor of Plaintiff. For these reasons, final judgment be and the same is hereby entered in favor of the Plaintiff, Valentine Chiropractic, Inc., as assignee of no-fault benefits from Paola Laskar, and against the Defendant, Geico General Insurance Company, whose address is 5260 Western Avenue, Chevy Chase, Maryland, in the amount of $61.00 as principal damages, plus $10.80 as prejudgment interest for a total amount of $71.80, which shall bear interest at the annual rate of 5.53%, for which sum let execution issue forthwith.
The Court hereby determines that the Plaintiff is entitled to recover its reasonable attorneys’ fees and taxable costs, and retains jurisdiction to determine amounts thereof.
