27 Fla. L. Weekly Supp. 178a

Online Reference: FLWSUPP 2702ROBEInsurance — Personal injury protection — Coverage — Emergency services — Deductible — Insurer improperly processed bill of emergency service provider prior to bills received previously from providers not within that classification and, consequently, wrongly applied deductible to emergency service provider’s bill — Insurer proved that insured elected deductible notwithstanding absence of signed deductible election form

EMERGENCY PHYSICIANS, INC. d/b/a EMERGENCY RESOURCES GROUP, as assignee of Helen Roberson, Plaintiff, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2018-SC-005034. February 22, 2019. Michelle Kalil, Judge. Counsel: K. Douglas Walker, Bradford Cederberg, P.A., Orlando, for Plaintiff. Scott W. Dutton, Dutton Law Group, Tampa, for Defendant.

[Related order at 26 Fla. L. Weekly Supp. 839b]

ORDER ON COMPETING MOTIONS

THIS MATTER having come before this Court on January 9, 2019 regarding Plaintiff’s Motion for Leave to Amend Complaint, Plaintiff’s Motion for Final Summary Judgment, Defendant’s Motion for Summary Judgment Regarding Proper Application of Plaintiff’s Bills to the Deductible, and Defendant’s Response in Opposition, Objection to, and Motion to Strike Plaintiff’s Motion for Leave to Amend Complaint, and this Court having heard arguments of counsel orders as follows:

As an initial matter, this Court found Plaintiff’s Motion for Leave to Amend Complaint to be premature at the time of the hearing, and orally denied Plaintiff’s Motion for Leave to Amend without prejudice. This order will now address the Motions for Summary Judgment regarding application of the personal injury protection (“PIP”) deductible in this matter.

I. FACTS

This is a claim for Personal Injury Protection (“PIP”) benefits arising out of a motor vehicle accident that occurred on or about October 12, 2016. The Plaintiff is Emergency Physicians, Inc., d/b/a Emergency Resources Group a/a/o Helen Roberson (“ERG” or “Plaintiff”). At all times material, Helen Roberson was covered under a policy of automobile insurance issued by Defendant, United Services Automobile Association (“USAA” or “Defendant”), which provided PIP coverage for injuries Ms. Roberson sustained in the above-referenced accident. The subject policy of insurance’s declarations page identifies a PIP Deductible in the amount of $250.00.

ERG rendered emergency services and care to Helen Roberson on October 12, 2016 in the emergency department of Baptist Medical Center following the above-referenced accident. On October 12, 2016, ERG obtained an assignment of benefits from Helen Roberson in consideration and in exchange for the emergency services and care provided by ERG to Helen Roberson on October 12, 2016.

The chronological order of USAA’s receipt and processing of the relevant medical bills for medical services rendered to Helen Roberson as a result of the October 12, 2016 car accident is undisputed:

· The first medical bill was received by USAA on October 24, 2016, was from “MBB Radiology”, and totaled $33.00. This bill was allowed in full and all $33.00 was applied to the PIP Deductible.

· The second medical bill was received by USAA on October 24, 2016, was from “MBB Radiology”, and totaled $31.00. This bill was allowed in full and all $31.00 was applied to the PIP Deductible.

· The third bill was received by USAA on October 27, 2016, was from Baptist Medical Center (“Baptist”), and totaled $1,969.20. USAA reduced Baptist’s bill to the amount allowable under the applicable fee schedule, i.e. $1,476.90, which is 75% of the billed amount, and paid the balance to Baptist at 80% in PIP Benefits without applying any portion of Baptist’s bill to the PIP deductible.

· The fourth bill was received by USAA on October 28, 2016, was from Jacksonville Fire Rescue, and totaled $715.00. This bill was allowed in full, and paid at 80% in PIP Benefits without applying any portion of this bill to the PIP deductible.

· The fifth bill was received by USAA on November 3, 2016, was from the Plaintiff/ERG, and totaled $452.00. USAA processed ERG’s bill by allowing the bill in full, and applying the remaining $186.00 of the PIP Deductible to ERG’s bill. USAA then paid the balance at 80%, resulting in ERG being paid $212.00 in PIP Benefits.

Both ERG and MBB Radiology qualify for the $5,000.00 reserve pursuant to Florida Statute §627.736(4)(c) (“section 627.736(4)(c) providers”). USAA processed ERG’s bill out of order based on ERG’s status as a section 627.736(4)(c) provider. In other words, there is no dispute that ERG’s bill was the fifth bill received, but the third bill processed, which resulted in ERG’s bill being partially applied to the purported $250 PIP deductible. Had ERG’s bill not been applied to the alleged deductible, Defendant would have paid ERG PIP benefits at 80% of the charged amount, or $361.60. USAA’s policy of insurance properly elects to reimburse medical bills pursuant to the Schedule of Maximum Charges.

II. ANALYSIS AND RULING

a. Defendant improperly applied the PIP Deductible to Plaintiff’s Bill.

Defendant argues it is permitted to process bills out of order, by moving section 627.736(4)(c) providers’ bills to the front of the line, based upon the Fifth District Court of Appeal’s decision in Mercury Insurance Company of Florida v. Emergency Physicians of Central Florida, 182 So. 3d 661 (Fla. 5th DCA 2016) [40 Fla. L. Weekly D2364a]. In that case, the Fifth District Court of Appeal addressed whether a section 627.736(4)(c) provider’s bill could even be applied to a PIP deductible. The issue in Mercury came before the Fifth DCA in light of the provider’s argument — and the lower court’s agreement — that section 627.736(4)(c)’s requirement of a $5,000 reserve of PIP “benefits” for payment to qualified providers effectively exempted those qualified providers’ bills from being subjected to a PIP deductible because a deductible is not “benefits.” In other words, the provider’s argument in Mercury was that the Legislature intended a section 627.736(4)(c) provider’s bill to be exempt from a PIP deductible; instead, those bills were to be reserved for payment out of the $5,000 in PIP benefits outlined in section 627.736(4)(c).

The Fifth District Court of Appeal disagreed with the provider’s argument, holding that section 627.739(2) — which governs PIP deductibles — does not carve out any exception for section 627.736(4)(c) providers. Accordingly, a section 627.736(4)(c) provider’s bill is properly applied to a PIP deductible the same as any other bills — in the order of receipt.

Defendant’s argument in this case fails to consider the purpose of, and the Mercury court’s discussion regarding section 627.736(4)(c). Section 627.736(4)(c) requires carriers to reserve $5,000 in PIP benefits for payment to qualified providers. As Mercury noted, a PIP deductible is the insured’s responsibility, and an insurer’s obligation to pay (and reserve $5,000 of) PIP Benefits is triggered only after the contracted-for PIP Deductible is satisfied. See Mercury, 186 So. 2d at 687 (“The meeting of the contracted-for deductible unlocks the insured’s right to access his/her $10,000 in PIP Benefits.”). Mercury simply held that section 627.739(2) [the PIP deductible statute] does not exempt a section 627.736(4)(c) qualified provider’s bill from being applied to a PIP deductible in the manner which PIP deductibles have always been applied to bills submitted to insurance companies for payment, i.e., in the order that they are received.

Subsequent to Mercury, the Fifth District Court of Appeal has remained consistent, and even clarified its holding in Mercury. In Progressive American Insurance Company v. Emergency Physicians of Central Florida, 187 So. 3d 898, 899 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D564a], and again in Progressive Express Insurance Company v. Emergency Physicians of Central Florida, 187 So. 3d 1278, 1278-79 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D888b], the Fifth District Court of Appeal stated clearly: “In Mercury, this court held that all claims, including Emergency Physicians of Central Florida’s priority claim, are properly applied to a personal injury protection deductible in the order that they are received.” (emphasis added). Thus, after its decision in Mercury, the Fifth District Court of Appeal has unequivocally stated, that “all claims” — section 627.736(4)(c) qualified claims and “non-qualified” claims — are “all” properly applied to a PIP Deductible “in the order that they are received.” See Id.

The parties agree that the Fifth District Court of Appeal is the only District Court of Appeal to address this issue, and this Court is therefore bound by that authority. This court is not only bound by Mercury, however, but also Mercury’s progeny,¹ which requires “all claims” be applied to a PIP Deductible “in the order of receipt.”

In this matter, there is no dispute that Plaintiff’s bill was the fifth bill received, but was the third bill processed by Defendant. This was improper as a matter of law. Had the bills been properly processed in the order of receipt, the bill from Baptist Medical Center would have satisfied the entire remainder of the $250 deductible, and Plaintiff’s bill would have been paid at 80% of the charged amount without being subjected to any of the $250 PIP deductible. Accordingly, there is no genuine issue of material fact, and Plaintiff is entitled to a judgment as a matter of law $149.60 in PIP Benefits.²

b. Election of Deductible

This Court finds that there is no requirement for a signed deductible election form, and USAA complied with Fla. Stat. §627.739(4)-(5). USAA provided a copy of the certified policy and declarations page, which is prima facia evidence of the contract between the parties. Continental Cas. Co. v. City of Ocala, 127 So. 897, 895 (Fla. 1930). USAA further provided a sworn Affidavit of the adjuster, coupled with ERG’s filing the transcript of the deposition of USAA’s adjuster, confirming the election of the deductible. USAA also argued that the Plaintiff is attempting to reform the policy of insurance contract yet it did not plead an action for reformation in its original Complaint and it has not included the insured as an indispensable party. The insured elected to self-insure for the amount of $250.00, the amount of the deductible, and the insured cannot assign its obligation to pay to the deductible. Thus, the Plaintiff need only look to the insured to obtain payment for the deductible. This Court finds there is no issue of material fact with regard to the insured’s election of a deductible, and finds that USAA has established with evidence of the declarations page and the Affidavit of the Adjuster that the insured did elect a deductible and it was applicable to ERG’s bill, and that the Plaintiff has not refuted that evidence. The Defendant’s Motion for Summary Judgment on the issue of election of deductible is Granted.

This Court has already held in the section above that the $250 deductible was improperly applied to ERG’s bill out of sequence. There being no other genuine issues of material fact, Plaintiff is entitled to a judgment as a matter of law in the amount of $149.60 in PIP Benefits.³

III. CONCLUSION

This Court finds that no genuine issue of material fact remains, and Plaintiff is entitled to a judgment as a matter of law.

Therefore, it is hereby, ORDERED AND ADJUDGED that:

1. Plaintiff’s Motion for Final Summary Judgment is Granted.

2. Defendant’s Motion for Summary Judgment Regarding Proper Application of Plaintiff’s Bills to the Deductible is Denied.

3. Plaintiff’s Motion for Leave to Amend is Denied without prejudice.

4. The Court reserves jurisdiction to determine the amount of attorney’s fees and costs.

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¹Plaintiff not only relies on decisions from Florida’s Fifth District Court of Appeal, which cite to Mercury to hold “all claims . . . are properly applied to a [PIP] deductible in the order that they are received[,]” but also cites to ten (10) decisions from Florida’s Seventh Judicial Circuit’s Appellate Division, all of which rely on “Mercury and its progeny” to hold the insurance carrier “improperly processed the bills by applying the personal injury protection deductible out of sequence.” See, e.g., USAA Cas. Ins. Co. v. Emergency Physicians, Inc., d/b/a Emergency Resources Grp., a/a/o Brianna Spath, 25 Fla. L. Weekly Supp. 410b (Fla. 7th Jud. Cir. (App.) 2017).

Of those ten (10) circuit appellate decisions cited by Plaintiff, the insurance carrier sought review in four (4) of them via a petition for writ of certiorari to the Fifth District Court of Appeal; the Fifth District Court of Appeal denied the petition in each. See 5D17-26550; 5D17-2651; 5D17-2652; and 5D17-2836.

²$452.00 (amount charged by ERG) x 80% = $361.60. $361.60 – $212.00 (amount paid by USAA) = $149.60.

³$452.00 (amount charged by ERG) x 80% = $361.60. $361.60 – $212 (amount paid by USAA) = $149.60.