27 Fla. L. Weekly Supp. 828b
Online Reference: FLWSUPP 2709NGUYNOT FINAL VERSION OF OPINION
Subsequent Changes at 28 Fla. L. Weekly Supp. 323aInsurance — Personal injury protection — Coverage — Medical expenses — Exhaustion of policy limits — Payments using 2007 Medicare non-facility limiting charge were proper and did not constitute gratuitous payments or bad faith — Having exhausted benefits in payment of valid timely bills, insurer is not liable for further payments to medical provider
CHIROPRACTIC & ACUPUNCTURE MEDICAL CENTER, a/a/o Sabrina Nguyen, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County. Case No. 18-006336 SC. August 28, 2019. John Carassas, Judge. Counsel: Tanner Davis Lakey, White & Twombly, P.A., Miami Shores, for Plaintiff. William E. Kirilloff and Thomas J. Sisco, Cole, Scott & Kissane, P.A., Tampa, for Defendant.
***[Editor’s Note: Notice of Appeal filed on 11-8-19 (Case No. 19-000070-AP); Appeal stayed pending the outcome of the Florida Supreme Court’s ruling in MRI Associates of Tampa, Inc., etc. vs. State Farm Mutual Automobile Insurance Company (Case No. SC18-1390)]
Motion for Reconsideration DENIED; FLWSUPP 2804NGUY
ORDER GRANTING DEFENDANT’S MOTION FORSUMMARY JUDGMENT ANDFINAL JUDGMENT IN FAVOR OF DEFENDANT
THIS CAUSE having come before the Court on Defendant’s Motion for Final Summary Judgment, and Plaintiff’s Motion to Continue Defendant’s Motion for Final Summary Judgment, and the Court having heard argument of counsel on August 7, 2019, and being otherwise advised in the Premises, the Court hereby finds as follows:
Factual Background
This is a suit for Personal Injury Protection (PIP) benefits stemming from a motor vehicle accident that occurred on December 30, 2014. The claim is being pursued under an automobile insurance policy that was issued by Defendant providing PIP benefits of $10,000 to Sabrina Nguyen, subject to the terms and conditions of the insurance policy and Florida law. The policy does not provide Medical Payments Coverage.
Plaintiff, Chiropractic & Acupuncture Medical Center, submitted medical bills to Defendant for dates of service December 31, 2014 through April 28, 2015 for services rendered to Sabrina Nguyen resulting from the December 30, 2014 motor vehicle accident. Prior to exhausting the benefits to the Plaintiff, State Farm received bills from MRI Associates of St. Pete Inc. and Jeffrey L. Tedder that contained charges for diagnostic services. State Farm calculated reimbursements for these diagnostic services by utilizing the 2007 non-facility limiting charge price and reimbursed these two providers accordingly. Policy benefits ultimately exhausted on May 13, 2015. All reimbursed bills were submitted timely.
Defendant filed its Motion for Final Summary Judgment with the Court on March 6, 2019, based upon its exhaustion of PIP benefits under the subject claim. There is no dispute that the benefits were exhausted. Plaintiff’s sole contention is that Defendant’s payments for diagnostic services billed by other Medical Providers at the 2007 non-facility limiting charge constitute “gratuitous payments”.
Defendant asserts that it properly exhausted benefits and that the Florida No-Fault Law and applicable policy do not require Defendant to reimburse charges according to the participating, non-facility price when Defendant is relying on the 2007 Medicare Part B fee schedule. In support of Defendant’s Motion, Defendant filed the affidavit of Renee Tanner, a claims representative for Defendant on July 8, 2019. This affidavit authenticated the Defendant’s PIP Payment Log evidencing that on May 13, 2015, prior to the filing of the instant lawsuit, all available PIP benefits under the subject policy of insurance for Sabrina Nguyen were paid, rendering all PIP benefits exhausted.
Plaintiff filed its Motion to Continue Defendant’s Motion for Summary Judgment on May 30, 2019 claiming discovery for this suit was still outstanding. However, Defendant provided answers to Plaintiff’s discovery requests and produced all non-privileged documents in response to Plaintiff’s discovery, including all Explanations of Review generated under the subject claim to other Medical Providers. Plaintiff had ample opportunity to review the Explanations of Review. Plaintiff did not identify any other documents needed and concedes Defendant has met all discovery obligations claimed to be outstanding.
Analysis
Plaintiff asserts that Defendant’s payment to other providers for diagnostic testing at the 2007 non-facility limiting charge should not be considered as having made against the $10,000 policy limit because it is a “gratuitous payment”. The concept of “gratuitous payment” has been addressed by Florida District Courts of Appeal; however, limited in scope to the payment of a third party’s untimely bill. An untimely bill is considered an invalid claim because neither the carrier nor the insured is responsible to reimburse an untimely invoice. The instant case is distinguishable, as both Plaintiff and Defendant agree that State Farm reimbursed only timely, valid claims in accordance with the language of the Florida No-Fault statute and the subject policy of insurance.
The genesis of this argument arises from the 2012 amendments to the portion of the Florida No-Fault statute addressing the schedule of maximum charges. Prior to 2012, Fla. Stat. 627.736(5)(a)3 of the Florida No-Fault statute specifically stated that an insurer may not pay “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.” Thus, prior to 2012, when a medical service was reimbursed higher under the 2007 Medicare Part B fee schedule than under the current year fee schedule, the statute dictated that the carrier was to reimburse under participating physicians schedule, rather than any other fee schedule found in Medicare Part B such as the limiting charge schedule. However, after the 2012 amendment, section (5)(a)2 of the current Florida No-Fault statute removes the “participating physicians fee schedule” language and reads “. . . except that it may not pay 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.”
The removal of the above referenced language is unambiguous in that an insurer is no longer bound specifically to Medicare’s participating physicians fee schedule and, in good faith, should pay the maximum allowable amount under Medicare Part B for 2007, which, Defendant argues, is the non-facility limiting charge. Therefore, in addressing Plaintiff’s arguments surrounding the application of the 2007 non-facility limiting charge to diagnostic services, this Court finds that Defendant may properly utilize the 2007 non-facility limiting charge when calculating reimbursement pursuant to the applicable policy and the Florida No-Fault statute. The actual issue in the instant case is whether State Farm, in using the 2007 non-facility limiting ,charge, exhausted benefits under the subject policy in bad faith. In addressing this issue, this Court notes that there is no dispute that State Farm exhausted the benefits in this case and the Plaintiff has made no allegation of bad faith. Even had Plaintiff alleged payments were made in bad faith, absolutely no factual evidence supporting a claim of bad faith has been presented.
Florida courts have established that, absent a showing of bad faith or gratuitous payments, an insurer’s liability for benefits ends once the policy limit is exhausted. See GEICO Indemnity Company v. Gables Insurance Recovery, 159 So. 3d 151 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D2561a]; Northwoods Sports Med. & Physical Rehab., Inc. [a/a/o Daniel North v. State Farm Mutual Automobile Insurance], 137 So. 3d 1049 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D491a]; Progressive American Ins. Co. v Stand-UP MRI of Orlando, 990 So.2d 3 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a]. Here, Plaintiff did not allege bad faith in any pleading and provided no evidence of bad faith in opposition to Defendant’s Motion for Final Summary Judgment. In addressing the issue of “gratuitous payment”, this Court notes that Plaintiff has made no allegation that State Farm reimbursed a third party’s untimely invoice. Accordingly, Plaintiff’s argument that Defendant’s reimbursement of a third party’s valid, timely bill constitutes a “gratuitous payment” is without merit. State Farm, having properly paid bills and ultimately exhausting benefits, has no further liability on unresolved pending claims.
Conclusion
The Florida No-Fault Law, on its face, does not prohibit an insurer from utilizing the 2007 non-facility limiting charge when calculating reimbursements. Specifically, Fla. Stat. 627.736(5)(a)1.f. requires an insurer limiting payment to the “Schedule of Maximum Charges” to utilize “the participating physicians fee schedule of Medicare Part B.” As previously noted, Fla. Stat. 627.736(5)(a)2 is silent as to whether an insurer should apply the participating or non-participating fee schedule when the 2007 fee schedule is higher than the applicable fee schedule for the service year in which the services are rendered. Therefore, an insurer is no longer bound specifically to the participating physicians fee schedule and, in good faith, should pay the maximum allowable amount under Medicare Part B for 2007. In addressing Plaintiff’s argument that the 2007 non-facility limiting charge is a purported “gratuitous payment”, this Court, pursuant to the Florida No-Fault Law and the subject policy, finds that Defendant may utilize the 2007 non-facility limiting charge when calculating reimbursements. Accordingly, Plaintiff’s argument that Defendant’s payment at the 2007 non-facility limiting charge was a “gratuitous payment” fails.
This Court agrees with the Defendant’s interpretation of the Fourth DCA’s ruling in Northwoods, that an insurer cannot be liable for any additional payment and/or pending claims above and beyond the policy limit, absent a showing of bad faith. It is undisputed that Defendant paid $10,000 in Personal Injury Protection benefits under the policy issued to Sabrina Nguyen, and there has been no allegation of bad faith on behalf of Defendant.
Therefore, considering the aforementioned facts and analysis, it is hereupon ORDERED AND ADJUDGED that:
1. Defendant’s Motion for Final Summary Judgment is hereby GRANTED. Defendant having properly tendered the full extent of the contracted for PIP benefits under the policy of insurance, and thus, exhausting benefits, has no further liability on unresolved pending claims.
2. Plaintiff’s Motion to Continue Defendant’s Motion for Summary Judgment is hereby DENIED. Defendant has met all discovery obligations claimed to be outstanding and Plaintiff has not been prejudiced in its ability to prosecute this case.FINAL JUDGMENT IS HEREBY ENTERED IN FAVOROF DEFENDANT STATE FARM MUTUALAUTOMOBILE INSURANCE COMPANY
1. The Plaintiff, CHIROPRACTIC & ACUPUNCTURE MEDICAL CENTER, as assignee of Sabrina Nguyen, shall take nothing by this action and the Defendant, State Farm Mutual Automobile Insurance Company, shall go hence without a day. The Court reserves jurisdiction to tax fees and costs for the Defendant as the prevailing party.
