27 Fla. L. Weekly Supp. 239a
Online Reference: FLWSUPP 2703IRIZInsurance — Personal injury protection — Coverage — Medical expenses — Where PIP policy provides that charge submitted for amount less than allowed amount under Medicare Part B fee schedule shall be paid in amount of charge submitted, and PIP statute provides that if elected insurer will pay amount of charges below fee schedule, insurer was required to pay entire amount of charges that were less than allowed amount under fee schedule, not 80% of those charges — “Important Notice” stating that insurer will limit reimbursement to 80% of properly billed reasonable charge is not part of policy and, if it were, would conflict with requirements of PIP statute
GEICO INDEMNITY COMPANY, Appellant, v. ACCIDENT & INJURY CLINIC, INC. a/a/o Frank Irizarry, Appellee. Circuit Court, 7th Judicial Circuit (Appellate) in and for Volusia County. Case No. 2018-10031-APCC. March 14, 2019. Order denying Motion for Rehearing, Rehearing En Banc, and Certification April 16. 2019. Appeal from the County Court Volusia County, Florida. Counsel: Rebecca O’Dell Townsend, Tampa, and Louis Schulman, Tampa, for Appellant. Douglas H. Stein, Miami, for Appellee.
QUASHED. 44 Fla. L. Weekly D3045b
[Order on remand at FLWSUPP 2803GEIC]
OPINION OF THE COURT
(ROWE, J.) This matter came before this Court in its appellate capacity for review of an “Order Granting Plaintiff’s Motion for Summary Disposition and Final Judgment in Favor of Plaintiff” entered on June 7, 2018, by the County Court. The Court has considered the briefs filed, reviewed the record on appeal, and heard oral argument presented by counsel.
This action began as a claim for Personal Injury Protection (PIP) benefits filed in the lower court. Frank Irizarry was involved in a motor vehicle accident on September 6, 2015. The plaintiff below, Accident & Injury Clinic, Inc. (hereinafter “AIC”), provided medical services to Irizarry as a result of the accident. Irizarry was insured for PIP benefits by the defendant below, Geico Indemnity Company (hereinafter “GEICO”). Irizarry assigned his benefits under the GEICO policy to AIC.
AIC’s charges submitted to GEICO included items which were in an amount allowed by the fee schedule and items which were an amount charged below the fee schedule. (Items charged below the fee schedule amount will be referred to as the “billed amount” or “BA.”) GEICO reimbursed AIC at a rate of 80% for fee schedule amount items and BA items. There is no dispute over the 80% reimbursement rate for fee schedule amount items where Irizarry is responsible for a copay of 20%. AIC claims that GEICO’s policy requires GEICO to reimburse BA items at 100%. GEICO argues that the policy provides that the reimbursement rate of BA items is 80% with Irizarry responsible for a copay of 20%. BA charges submitted by AIC totaled $3,131.00. GEICO paid 80% of BA charges or $2,504.80. The lower court found in favor of AIC for the difference ($626.20) plus interest and entered judgment in the amount of $702.23. GEICO’s appeal of that Final Judgment is now before this Court.
The root of this exhaustively litigated issue (referred to as the BA issue) is the following sentence in GEICO’s policy:
“A charge submitted by a provider, for an amount less than the allowed amount above, shall be paid in the amount of the charge submitted.”
GEICO argues that this sentence does not reflect who is to pay the provider, and it refers to other parts of the policy to show that GEICO is responsible to pay 80% and the insured to copay 20%. AIC accurately points out that the “PAYMENTS WE WILL MAKE” portion of the policy limits GEICO payments to 80% of fee schedule payments and does not specifically refer to BA payments. The policy makes no specific reference as to who pays BA charges. GEICO points to a document entitled “IMPORTANT NOTICE,” which in pertinent part states, “The Company will limit reimbursement of medical expenses to 80 percent of a properly billed reasonable charge. . .” There is a dispute as to whether this “IMPORTANT NOTICE” is a part of the policy.
The lower court found that the language in the policy was clear and unambiguous on its face and required GEICO to pay 100% of BA charges. This Court agrees with the result of the lower court but disagrees with the finding that the policy unambiguously required GEICO to pay 100% of BA charges.
The BA issue was extensively analyzed in the recent federal class action case of A & M Gerber Chiropractic LLC v. GEICO General Insurance Company, 291 F.Supp.3d 1318 (S.D. Fla. 2017) [27 Fla. L. Weekly Fed. D133a]. The court in A & M Gerber accurately stated that the policy provision (“A charge submitted by a provider, for an amount less than the allowed amount above, shall be paid in the amount of the charge submitted.”) “. . .does not identify who will pay. . .” Id. at 1342. That court goes on to contrast the disputed provision with the language from the PIP statute:
“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.” Florida Statutes, Section 627.736(5)(a) 5.
That statute provides that “the insurer may pay,” thereby identifying the insurer as the party who will pay the charge. A & M Gerber, at 1342. Contrary to the statutory language, the policy provision has removed the designation of the insurer as payor: “A charge submitted by a provider. . ., shall be paid in the amount of the charge submitted.” The policy language changes the sentence in the statute from “the insurer may pay” to “a provider. . .shall be paid.” The statute provides who will pay and the policy provides what the provider will be reimbursed.
Based upon the language of the policy and the specific disputed policy provision, it cannot be said that the provision unambiguously provides that GEICO will pay 100% of BA charges. As previously stated, the disputed “IMPORTANT NOTICE” in pertinent part reads as follows: “The Company will limit reimbursement of medical expenses to 80 percent of a properly billed reasonable charge. . .” If this notice is a part of the policy, then the policy would unambiguously provide that GEICO would be responsible to pay for only 80% of the BA charges. However, if the “IMPORTANT NOTICE” is not considered a part of the policy, then the policy is silent as to who pays the BA charges.
The court in A & M Gerber found, and this Court agrees, that the “IMPORTANT NOTICE” is not part of the policy. Id. at 1338-1340. That court ultimately determined that the disputed policy provision was ambiguous, construed the provision against GEICO, and found that the provision required GEICO to pay 100% of the BA charges. Id. at 1344. The A & M Gerber court did note that the PIP statute specified that the insurer would pay BA charges, but it declined to use the statutory language to interpret the policy. Id. at 1342.
The reason this Court declines to interpret the policy as providing for GEICO to pay 100% of BA charges is simply that there is no support in the policy that justifies reading an agreement to pay 100% of BA charges into the policy. This Court does not wish to read a term into the policy which is not there. If anything, the evidence would indicate that GEICO’s intent in drafting the policy was to apply the 80% rate not just to BA charges but across the board. This is evidenced by GEICO distinguishing the language of the statute from the “insurer may pay” to the “provider. . .shall be paid.” GEICO also provided the “IMPORTANT NOTICE” which stated reimbursement would be limited to 80% by GEICO effectively across the board. There are no other provisions or language in the policy where GEICO reimburses a provider 100%. In addition, GEICO’s intent was evidenced by the fact that it has consistently reimbursed BA charges at 80%.
Nevertheless, this Court agrees that the policy must be construed to provide that GEICO pays 100% of the BA charges, but only by applying the PIP statutory language to the policy. Both AIC and GEICO agree that the policy must conform to PIP statutory limitations and requirements. As previously stated, the controlling PIP provision specifically provides that if elected the insurer would pay BA charges:
“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.” Florida Statutes, Section 627.736(5)(a) 5.
There is nothing in this statutory language which allows an insurer to limit the BA payment to 80%. GEICO argues if the statute is read to require an insurer to pay 100% of BA charges, it would net an absurd result. The alleged absurd result occurs when GEICO is required to pay a higher amount at 100% of the BA than at 80% of the maximum rate permitted. Indeed it would cost GEICO more money, but it is not an absurd result if the legislature intended that the benefit of the lower BA payment was meant to be enjoyed by the insured as opposed to the insurer.
The statutory language identifying the insurer as the party designated to pay the BA charges must be applied to the policy language. Further, as the PIP statute does not provide for insurers to limit payment of BA charges to 80%, if the insurer elects BA payments, then the insurer pays 100% of the BA charge. The Court notes that this result still would be reached if the “IMPORTANT NOTICE” was or becomes part of the policy. Policy language limiting GEICO’s payments to 80% of BA charges would conflict with the PIP statute that designates that the insurer may elect to pay the BA amount rather than the maximum payment permitted under the fee schedule amount.
In this case GEICO elected the “amount of the charge submitted” (or BA) by AIC. GEICO paid 80% of the BA instead of 100% as required. Therefore, the lower court’s ruling should be upheld.
For the foregoing reasons, the lower court’s Final Judgment is hereby
AFFIRMED. (DENNIS CRAIG, Circuit Judge, concurs.)
__________________ORDER DENYING APPELLANT’S MOTION FORREHEARING, REHEARING EN BANC, AND CERTIFICATIONOF A QUESTION OF GREAT PUBLIC IMPORTANCE
(ROWE, J.) This matter came before the Court for review of the “Appellant’s Motion for Rehearing, Rehearing En Banc, and Certification of a Question of Great Public Importance.” The Court having carefully considered the motion along with the Appellee’s response thereto, it is hereby
ORDERED AND ADJUDGED:
That the motion is denied.
