26 Fla. L. Weekly Supp. 432a
Online Reference: FLWSUPP 2605LUGOInsurance — 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
YEHUDA FISHFIELD, M.D., P.A., (a/a/o Paula Lugo), Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE16014810(51). June 29, 2018. Kathleen McCarthy, 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.
ORDER ON COMPETINGMOTIONS FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court for hearing on June 28, 2018 on the parties’ competing motions for final summary judgment, and the Court, having reviewed the motions; 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,
ORDERS AND ADJUDGES that the Plaintiff’s Motion for Summary Judgment is GRANTED and Defendant’s Motion for Summary Judgment is DENIED for the reasons set forth below.
1. The primary issue in this case is the proper amount of reimbursement for assigned personal injury protection (PIP) benefits when a medical provider’s submitted charge is less than the amount allowed under the schedule of maximum charges enumerated in Fla. Stat. § 627.736(5)(a)(1)(2013) and the Geico insurance policy1.
2. The pertinent portion of the Geico policy 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.”2 (emphasis added).
3. “[A]mount allowed above” refers to the amount allowed under the schedule of maximum charges set forth in Fla. Stat. § 627.736(5)(a)(1)(2013).
4. For the medical services at issue here3, the applicable portion of the schedule of maximum charges is “200 percent of the allowable amount under. . . [t]he participating physicians fee schedule of Medicare Part B. . .” Fla. Stat. § 627.736(5)(a)(1)f.(I)(2013).
5. 200 percent of the allowable amount under the participating physicians’ fee schedule of Medicare Part B for CPT 99214 is $224.86 for the locality where the services were performed (Fort Lauderdale, Florida) in 2015, and $224.42 in 2016.
6. Plaintiff charged $193.00 for CPT 99214 in 2015 and 2016 and performed that service six times4. Geico allowed the full $193.00 charge but paid $154.40 each time. In other words, Geico paid 80% of the charge submitted rather than “the amount of the charge submitted.” By this lawsuit, Plaintiff seeks the 20% difference between the amounts charged and paid. The parties stipulated that “the total amount of principal damages if the Plaintiff prevails is $231.60.”
7. Plaintiff’s interpretation is that the disputed policy text means exactly what it says — when a medical provider submits a charge for less than 200% of the allowable amount under the participating physicians’ fee schedule of Medicare Part B, then Geico shall pay “the amount of the charge submitted.” Plaintiff therefore contends that the 20% coinsurance requirement does not apply to charges that are less than that threshold5.
8. Geico, on the other hand, contends that the 20% coinsurance applies to all charges because the insured’s co-payment responsibility is mandated by the PIP statute and the policy. The Court disagrees because Geico specifically and expressly agreed to pay the entire charge when less than 200% of the Medicare Part B fee schedule amount. The PIP statute only provides for the minimal benefits required under Florida’s financial responsibility law and should not be read to limit the benefits the policy provides to the minimum required by statute. See Sturgis v. Fortune Ins. Co., 475 So.2d 1272-73 (Fla. 1985); Wright v. Auto-Owners Ins. Co., 739 So.2d 180-1 (Fla. 2d DCA 1999) [24 Fla. L. Weekly D2033a]. In other words, an insurance policy can always afford more benefits than the PIP statute, but it can never afford less.
9. Geico further argues that the disputed policy text “essentially” mirrors the last sentence in Fla. Stat. § 627.736(5)(a)5, which contemplates the scenario where insurers who elect the fee schedules receive charges from providers that are less than the amount allowed thereunder:
An insurer may limit payment as authorized by this paragraph only if the insurance policy includes a notice at the time of issuance or renewal that the insurer may limit payment pursuant to the schedule of charges specified in this paragraph. A policy form approved by the office satisfies this requirement. 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.
(emphasis added). The primary problem with Geico’s attempt to morph the issue from one of contract interpretation to one of statutory construction is that the statute says “may” and the policy says “shall.” While the statute gives insurers a choice of how to handle charges that are less than the amount allowed under the schedule of maximum charges, Geico’s use of the word “shall” establishes its affirmative choice to pay the full amount of the charge submitted.
10. Geico further argues that the Plaintiff’s interpretation leads to an “absurd” result because a provider who charges less than the amount allowed under the fee schedules will be paid more than a provider who charged more. On this point, the Plaintiff countered that the provider will be paid 100% of the charge either way; the issue is from whom. To put it graphically:Plaintiff’s Interpretation
| CPT Code | Charge/Allowed | 200% of Medicare Allowable (2015) | Geico Pays | Insured Pays |
| 99214 | $193.00 | $224.86 | $193.00 | $0.00 |
| CPT Code | Charge/Allowed | 200% of Medicare Allowable (2016) | Geico Pays | Insured Pays |
| 99214 | $193.00 | $224.42 | $193.00 | $0.00 |
Geico’s Interpretation
| CPT Code | Charge/Allowed | 200% of Medicare Allowable (2015) | Geico Pays | Insured Pays |
| 99214 | $193.00 | $224.86 | $154.40 | $38.60 |
| CPT Code | Charge/Allowed | 200% of Medicare Allowable (2016) | Geico Pays | Insured Pays |
| 99214 | $193.00 | $224.42 | $154.40 | $38.60 |
11. Plaintiff’s interpretation does not require the insured to go out of pocket while Geico’s does. Plaintiff’s interpretation is therefore more beneficial to the insured than Geico’s.
12. The law in Florida is clear with respect to the interpretation of an insurance contract. Where the language is clear 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’l Ins. Corp. v. Ruderman, 117 So.3d 943, 948 (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]. If the language is susceptible to more than one reasonable interpretation, then the language is ambiguous and is to be construed in favor of the insured and against the insurer. Id. An insurer is bound by the policy language of its own choosing. Berkshire Life Ins. Co. v. Adelberg, 698 So.2d 828, 830 (Fla. 1997) [22 Fla. L. Weekly S513a] (Insurers are bound by the language of their own choosing, regardless of whether under the policy language results in a good or bad bargain for the insurer.). If an insurer meant something different from the plain text of the policy, then it was required to unambiguously draft the contract accordingly. Id. Courts are not permitted to revise an otherwise valid insurance policy to make it more reasonable or advantageous for an insurance company 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). In short, the insurer — not the insured — bears the risk of poorly drafted or imprecise language.
13. Against this backdrop of interpretive principles, the Court agrees with the Plaintiff’s construction of the disputed policy text and finds it to be a reasonable interpretation as a matter of law because it is based on a plain reading of the plain language. The Court finds that Geico’s interpretation is unreasonable because it defies a plain reading of the plain language. But even if the Court determined that Geico’s interpretation is also reasonable, then we are left with policy language that is susceptible to two reasonable interpretations. The Plaintiff’s interpretation must therefore prevail. Ruderman, 117 So.3d at 948.
14. In conclusion, Geico breached the insurance contract because it failed to pay the full amount of the charges submitted even though they were less than 200% of the allowable amount under the participating fee schedule of Medicare Part B.
It is therefore:
ORDERED AND ADJUDGED THAT Plaintiff’s Motion for Summary Judgment is GRANTED and Defendant’s Motion for Summary Judgment is DENIED. The only remaining issue is the propriety and impact of Geico’s last-minute request to amend its Answer and Affirmative Defenses to assert that benefits allegedly exhausted.
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1For purposes of this case, Plaintiff does not dispute that Geico sufficiently elected the fee schedule payment methodology.
2This language appears at section A(6) on page 3 of Geico’s FLPIP (01-13) Florida Policy Amendment.
3CPT 99214 (in-office medical examination of an established patient).
4Plaintiff performed the service on October 28, 2015, November 5, 2015, November 19, 2015, December 24, 2015, February 11, 2016 and July 19, 2016.
5Plaintiff acknowledges there is a copayment requirement for charges that exceed the amount allowed under the fee schedule method but argues there is no such requirement when the amount charged is less.
