27 Fla. L. Weekly Supp. 562a
Online Reference: FLWSUPP 2706JOSEInsurance — Personal injury protection — Coverage — Where there is conflict between PIP statute and policy regarding which Medicare fee schedule to use to determine amount of reimbursement, policy language that provides for higher amount of reimbursement controls
ADVANCED CHIROPRACTIC REHAB & MEDICAL CENTERS INC. (a/a/o Junior Joseph), Plaintiff, v. EQUITY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO-15-001169. January 27, 2016. Louis H. Schiff, Judge. Counsel: Nicholas Marzuk, Boca Raton, for Plaintiff. Rebeca Quintero, Miami, for Defendant.
FINAL SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF
THIS CAUSE came upon to be heard on January 15, 2016, for hearing on Plaintiff’s Motion for Final Summary Judgment, and Defendant’s Motion for Final Summary Judgment and Request for 57.105 Sanctions, and the Court having reviewed the Motion, the entire court file, and the relevant legal authorities; having heard argument, having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
This case involves dates of service between January, 2013 and February, 2013. Plaintiff and Defendant both stipulate that dates of service in 2012 for this claim were paid correctly, and that dates of service after February, 2013 were paid correctly.
There are no genuine issues of material facts, as both parties have stipulated, only an issue of law. The only issue in this case is to determine the appropriate fee schedule to use for dates of service in January and February of 2013. The applicable statutory language (Fla. Stat. (2012) §627.736(5)(a)(2)) reads:
For purposes of subparagraph 1., 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. (emphasis added)
This court must also consider though the applicable policy language, which reads:
The applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect at the time the services, supplies, or care was rendered and for the area in which such services were rendered, except that it may not be less than the allowable amount under the participating physicians schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B. (emphasis added)
Plaintiff argues that when the Defendant issued its policy with language different from the statutory language, it did so at its own peril. This Court believes the issue of this case lies in the language of the applicable policy of insurance. Because the policy language contradicts the language of the applicable statute, the Defendant’s policy language controls.
This Court recognizes that when there is a conflict between the statute and the policy language, the conflict has to be construed in favor of the policy holder or insured, and not the person that issued the policy. Accordingly, based on the controlling language of the policy, the pertinent question is “what were the Medicare fees in effect at the time the services were rendered?” The Defendant relies on the language of the statute to determine what the fees were, but the Court points out that the statute does not set specific fees — instead the statute references what has already been set. The Plaintiff presents evidence to the Court that shows that at the time the services at issue were rendered, the Medicare fees in effect were more than what the Defendant paid.
After reviewing arguments from the Plaintiff and the Defendant, this Court grants Plaintiff’s Motion, and the specific reason is that the Court finds that the language of the policy comes first, and that the language of the policy is clear and it is unambiguous as to what the amount was to be reimbursed at the time of the treatment. At the time of the treatment, the amount to reimburse the services at issue was higher than the amount the Defendant reimbursed the Plaintiff.
Accordingly, it is hereby ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Summary Judgment is GRANTED, and that Defendant’s Motion for Final Summary Judgement is DENIED. Defendant’s Request for 57.105 Sanctions is moot due to the granting of Plaintiff’s Motion for Summary Judgment.
This Court finds Plaintiff’s is entitled to its reasonable attorneys’ fees and costs. This Court reserves jurisdiction to determine the amount of attorneys’ fees and costs to Plaintiff pursuant to Fla. Stat. §627.736, 627.428, and 57.041.
