27 Fla. L. Weekly Supp. 324a

Online Reference: FLWSUPP 2703LPHAInsurance — 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 charge

RADIOLOGY CONSULTANTS OF HOLLYWOOD, INC., a/a/o Lisma Saint Phard, Plaintiff, v. GEICO INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COWE-18-001991-Div. 81. April 26, 2019. Phoebee Francois, Judge. Counsel: Michelle Thomann, Johnson | Dalal, PLLC, Plantation, for Plaintiff.

ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT AND DENYING DEFENDANT’SCROSS MOTION FOR SUMMARY JUDGMENT

THIS CAUSE came before the Court for hearing on April 16, 2019 on the parties’ cross motions for Final Summary Judgment, and the Court, having reviewed the motions, the court file and all summary judgment evidence; having heard argument of counsel, and being otherwise sufficiently advised in the premises, finds as follows:

1. Plaintiff, RADIOLOGY CONSULTANTS OF HOLLYWOOD, INC., (“Plaintiff”) provided medically necessary diagnostic services to Defendant, GEICO INDEMNITY COMPANY’S (“GEICO”) insured, Lisma Saint Phard (“Insured”) for injuries she sustained in a motor vehicle accident on July 31, 2017 (“subject accident”).

2. Plaintiff provided the Insured with diagnostic services that were reasonable.

3. Plaintiff provided the Insured with diagnostic services for injuries she sustained as a result of the subject accident.

4. Plaintiff submitted a claim for CPT Code 72148 in an amount that was less than the allowable amount set forth in the schedule of maximum charges (“Lesser Charges”), which in this action was an amount less than 200% of the Medicare Part B Participating Physicians Fee Schedule; and

5. Geico paid PIP benefits for that Lesser Charge at 80% rather than 100% of the full amount charged.

6. Florida’s No-Fault Statute Sec. 627.736(5) sets forth two payment methodologies — the mandatory fact dependent method and the permissive schedule of maximum charges (the “Schedule”).

7. In this case, Geico’s policy provides notice of its intention to limit payment pursuant to the Schedule set forth in Sec. 627.736(5)(a)1.a-f. Florida Statutes (2016).

8. Pursuant to Fla. Stat. Sec. 627.736(5)(a)5.

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

(emph. added).

9. When an insurance carrier provides notice of its intention to limit payment pursuant to the Schedule, it legally obligates itself to pay 80% of the allowable amount pursuant to the Schedule. The Schedule creates a rigid, preset schedule of charges for payment for all submitted charges.

10. There is one exception to paying 80% of the allowable amount set forth in the Schedule. Where the charges submitted are in an amount less than those allowed by the Schedule, the carrier “may pay the amount of the charge submitted.” This means that a carrier may pay either 80% of the Schedule, or 100% of the Lesser Charge (the amount of the charge submitted).

11. In this action, Geico’s Florida Policy Amendment, FL-PIP 01-13 (“Amendment”), clearly elected to pay 100% of the Lesser Charge. Specifically, Geico’s policy Amendment states that the charge “shall be paid in the amount of the charge submitted.”

12. GEICO’s Florida Policy Amendment FLPIP (01-13) provides, in pertinent part:

PAYMENTS WE WILL MAKE

The Company will pay in accordance with the Florida Motor Vehicle No Fault Law (as enacted, amended, or newly enacted), and where applicable in accordance with all fee schedules contained in the Florida Motor Vehicle No Fault Law, to or for the benefit of the injured person:

(A) Eighty percent (80%) of medical benefits which are medically necessary, pursuant to the following schedule of maximum charges contained in the Florida Statutes §627.736(5) (a)1., (a)2. and (a)3.:

* * *

6. For all other medical services, supplies, and care, 200 percent of the allowable amount under:

(I.) The participating physicians fee schedule of Medicare Part B. .

* * *

However, if such services, supplies, or care is not reimbursable under Medicare Part B (as provided in section (A) 6. above), we will limit reimbursement to eighty percent (80%) of the maximum reimbursable allowance under workers’ compensation, as determined under Florida Statutes, §440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation is not required to be reimbursed by us.

* * *

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.

13. Geico did not pay the subject claim in the amount of the charge submitted.

14. Plaintiff contends that the plain language means exactly what it says — GEICO will pay the full amount of any charges that are less than the amounts allowed under the fee schedule payment methodology. GEICO, however, contends that the policy and PIP statute authorize it to pay 80% of the billed amount and that the language has an alternate meaning.

15. It is undisputed that GEICO allowed the full amount charged for CPT Code 72148, but only paid 80% even though the charge is less than the amount allowed of 200% of Medicare. It is also undisputed that the policy omits 80% in the paragraph “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,” which is distinct from the other language and paragraphing in the policy, which is emphasized above.

16. Defendant argued there was no intent to eliminate the co-insurance provision for any parts of the medical expenses for PIP despite the conflicting language in the policy. Defendant also argued that the PIP statute does not authorize the omission of a co-insurance requirement. In opposition, Plaintiff noted that if GEICO intended to limit coverage, then its poorly drafted language served to defeat this end. Also, the PIP statute is required to be construed liberally in favor of coverage, and, even so, that the PIP statute provides a minimum coverage requirement and the insurer is permitted to grant more coverage that the statutory minimums. See Wright v. Auto-Owners Ins. Co., 739 So.2d 180-1 (Fla. 2d DCA 1999) [24 Fla. L. Weekly D2033a].LEGAL ANALYSIS

The issue presented to the Court is to determine if the disputed provision is ambiguous. It is well settled under Florida Law the Court’s shall interpret the policy in favor of the insured. Washington National Ins. Corp. v. Ruderman, 117 So. 3d 943 (Fla. 2013) [38 Fla. L. Weekly S511a] State Farm Mut. Auto Ins. Co. v. Menendez, 70 So 3d 566 (Fla. 2011) [36 Fla. L. Weekly S469a]; Berkshire Life Ins. Co. v. Adelberg, 698 So. 2d 828 (Fla. 1977). With that principle in mind, the Court must review the disputed provision utilizing fundamental contract interpretation. Insurance policy contract interpretation was recently readdressed by the Florida Supreme Court in Allstate Insurance Co. v. Orthopedic Specialists. Although the Court was addressing the issue of election in the policy, the underlying premise of contract interpretation was discussed. The Court stated:

Where the language in an insurance contract is plain 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. Ins. Corp. v. Ruderman, 117 So.3d 943, 948 (Fla.2013) [38 Fla. L. Weekly S511a]. “Further, in order for an exclusion or limitation in a policy to be enforceable. the insurer must clearly and unambiguously draft a policy provision to achieve that result.” Virtual Imaging, 141 So.3d at 157. “Policy language is considered to be ambiguous . . . if the language is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage.’ ” “ Travelers Indem. Co. v. PCR Inc., 889 So.2d 779, 785 (Fla. 2004) [29 Fla. L. Weekly S774a] (quoting Swire Pac. Holdings v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla. 2003) [28 Fla. L. Weekly S307d]). “[A]mbiguous insurance policy exclusions are construed against the drafter and in favor of the insured.” Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla. 2000) [25 Fla. L. Weekly S211a]. “To find in favor of the insured on this basis, however, the policy must actually be ambiguous.” Penzer v. Transp. Ins. Co., 29 So.3d 1000, 1005 (Fla. 2010) [35 Fla. L. Weekly S73a] (emphasis omitted).

Allstate Insurance Co., 212 So.3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a].

The Court went on to say: “when analyzing an insurance contract, it is necessary to examine the contract in its context and as a whole, and to avoid simply concentrating on certain limited provisions to the exclusion of the totality of others.” Allstate Insurance Co., 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a] (quoting Swire Pac. Holdings v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla. 2003) [28 Fla. L. Weekly S307d]).CONCLUSION

In this case, this Court finds that GEICO’s policy itself is ambiguous with regards to the disputed provision. GEICO contends that the policy if read as a whole clearly refers back to the subsection A and as such the use of the indented paragraphs demonstrate that subsection A is a modifier to the pertinent language in dispute. The Plaintiff contends that the disputed policy text means exactly what it says — when a medical provider’s charge is less than 80% of the 200% of the allowable amount under the participating physicians’ fee schedule of Medicare Part B. than GEICO shall pay “the amount of the charge submitted.” The Court finds the Plaintiff’s interpretation reasonable. The policy does not clearly indicate a modifier as to this language. Looking at the entire section as a whole and not just focusing on the disputed provision, there is still a lack of clarity. GEICO used a modifier just above this language relaying back to subsection (A)6 but chose not to use a modifier in the disputed provision. Thus, the question begs does the disputed language refer back to the original subsection (A)? Does it refer back to subsection (A)6? Or does it not refer back to any subsection but rather stand alone? These questions demonstrate that the disputed provision is unclear and ambiguous even looking in the context of the policy.

This Court also agrees with the well-reasoned opinion of Judge Beth Bloom in A&M Gerber Chiropractic LLC a/a/o Connor Carruthers, et al v. GEICO General Insurance Company, Case No. 16-CV-62610- BLOOM/Valle (S.D. Fla. November 20, 2017) [27 Fla. L. Weekly Fed. D133a]. Judge Bloom in interpreting the text of the actual policy language concluded that it is subject to more than one reasonable interpretation, and therefore, ambiguity exists, which should be construed against the insurer, which drafted.

Accordingly, it is hereby,

ORDERED AND ADJUDGED as follows:

1. Plaintiff’s Motion for Summary Judgment is GRANTED;

2. Defendant’s Cross Motion for Summary Judgment is DENIED.

3. Plaintiff is entitled to judgment in its favor in the amount of $181.98 plus statutory interest and shall submit a judgment in conformity with this Order.

4. As the prevailing party, Plaintiff is entitled to reasonable attorneys’ fees and costs and this Court reserves jurisdiction to determine the amount.