27 Fla. L. Weekly Supp. 908a
Online Reference: FLWSUPP 2710SERRInsurance — 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 100% of those charges less 20% co-insurance obligation — Deductible — PIP statute requires that deductible be subtracted from total medical charges before applying permissive statutory fee schedule
ROYAL PALM BEACH REHAB CORP., a/a/o Jason Serrano, Plaintiff v. GEICO INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE17010227, Division 56. October 31, 2019. Betsy Benson, Judge. Counsel: Steven Lander, Steven Lander & Associates, P.L., Fort Lauderdale, for Plaintiff. Tara Natasha Castillo, The Law Office of George L. Cimballa, III, Plantation, for Defendant.
AGREED ORDERORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO BILLED AMOUNTORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AS TO BILLED AMOUNTORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO DEDUCTIBLEORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AS TO DEDUCTIBLEORDER DENYING DEFENDANT’S MOTION TO STAYANDENTRY OF FINAL JUDGMENT IN FAVOR OF PLAINTIFF
THIS CAUSE came before the Court for hearing on June 17, 2019 with respect to Plaintiff’s Motion for Summary Judgment as to Billed Amount, Defendant’s Motion for Summary Judgment as to Billed Amount, Plaintiff’s Motion for Summary Judgment as to Deductible, Defendant’s Motion for Summary Judgment as to Deductible, and Defendant’s Motion to Stay. The Court having reviewed the Motions, the entire Court file and the relevant legal authorities; having reviewed the parties’ stipulations as to matters of fact; having heard argument of counsel and being otherwise sufficiently advised in the premises
IT IS HEREBY ORDERED AND ADJUDGED:
The remaining issues in the case at bar are whether GEICO EMPLOYEES INSURANCE COMPANY “Geico” was obligated to pay 80%, or 100%, of the billed charges at issue, and whether Geico properly applied Plaintiff’s bills to the deductible. For the reasons set forth below, this Court holds that Geico was obligated to pay 100% of the billed amount when the billed amount is less than 200% of the allowable amount under the participating physicians fee schedule of Medicare Part B. Additionally, the Court holds that the Defendant failed to properly apply Plaintiff’s bills to the deductible before applying fee schedule.
Accordingly, Plaintiff’s Motions for Summary Judgment are GRANTED. Defendant’s Motions for Summary Judgment are Denied. Defendant’s Motion to Stay is DENIED.Findings of Fact
1. Jason Serrano (the “patient”) was insured by Geico when he was involved in a car accident on March 7, 2016.
2. Plaintiff provided chiropractic services for the patient under an assignment of benefits.
3. The insurance contract states: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.:
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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. . .
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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.
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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.
(emphasis added). The emphasized policy text is the point of contention in this case.Conclusions of Law
Plaintiff interprets this language to mean that for the chiropractic services at issue in this case, Geico must pay 100% of all charges that are less than 200% of the allowable amount under the participating physicians fee schedule of Medicare Part B. Geico disputes that this language results in a waiver of the patient’s 20% co-insurance obligation for charges that are less than 200% of the Medicare Part B fee schedule amounts.
This Court concludes that the Plaintiff’s interpretation is reasonable as it is based on a plain reading of the policy; when a medical provider’s charge is lower than the amount allowed by the schedule of maximum charges, Geico obligated itself to pay the full amount of the amount charged. Even if Geico’s interpretation can also be considered reasonable, then we are left with two (2) reasonable interpretations of the same policy language. Under well settled Florida law, the Court must interpret the policy in favor of the Plaintiff. See, e.g., Washington Nat’l Ins. Corp. v. Ruderman, 117 So.3d 943, 948-50 (Fla. 2013) [38 Fla. L. Weekly S511a], citing, State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So.3d 566, 569-70 (Fla. 2011) [36 Fla. L. Weekly S469a] (“[W]here the provisions of an insurance policy are at issue, any ambiguity which remains after reading each policy as a whole and endeavoring to give every provision its full meaning and operative effect must be liberally construed in favor of coverage and strictly against the insurer”); Berkshire Life Ins. Co. v. Adelberg, 698 So.2d 828, 830 (Fla. 1997) [22 Fla. L. Weekly S513a] (It has long been a tenet of Florida insurance law that an insurer, as the writer of an insurance policy, is bound by the language of the policy, which is to be construed liberally in favor of the insured and strictly against the insurer”).
This Court agrees with the analysis and conclusion set for in the case of A & M Gerber Chiropractic, LLC v. Geico Gen. Ins. Co., 2017 WL 5571353, *18-19 (S.D. Fla. 2017) [27 Fla. L. Weekly Fed. D133a], issued on November 20, 2017. There, the Court was tasked with interpreting the identical language at issue in this case and determined that it was ambiguous:
The critical question is whether the phrase “an amount less than the amount allowed above” in the disputed provision refers to “200 percent of the allowable amount under the participating physicians fee schedule of Medicare Part B” or to the 80 percent reimbursement rate in section (A). ECF No. [67-1] at 31. Far from a model of clarity, the Court concludes that the disputed provision is ambiguous. The use of the indented paragraphs, as GEICO argues, can lead to a reasonable interpretation that the disputed provision: is modified by the language of section (A) and is therefore only reimbursed at a rate of 80 percent. At the same time, the use of the word “above” in the paragraph that begins with “However” directly refers to subsection (A)6. A consistent application of the word “above” in the disputed paragraph can reasonably lead to an interpretation that it also refers to subsection (A)6 and not section (A). In addition, GEICO chose to explicitly limit reimbursement in the paragraph beginning with “However” to “80% of the maximum reimbursable allowance under workers’ compensation” for charges not reimbursable under Medicare Part B while it also chose not to include such limiting language in the disputed provision. This can also lead to a reasonable interpretation that the disputed provision is not limited to an 80 percent reimbursement rate otherwise, GEICO would have explicitly stated so. This argument is even more compelling when one considers the Scope-of-Subparts Canon and the fact that both paragraphs are indented. If all indented paragraphs relate to section (A) and its 80 percent reimbursement rate, it begs the question as to why GEICO specified an 80 percent reimbursement rate in the first indented paragraph and not in the disputed paragraph.
If there is more than one reasonable interpretation of an insurance policy, an ambiguity exists and it “should be construed against the insurer.” Pac. Emp’rs Ins., 2007 WL 2900452, at *4. Here, the Court finds the disputed provision is ambiguous and it must, therefore, construe the provision against GEICO and in favor of Plaintiff. As such, the Court holds that, under the disputed provision, when a health care provider bills for covered services in an amount less than 200% of the fee schedule, GEICO is required to pay the charge as billed without any reduction
The Court next turns to the Defendant’s reductions of Plaintiff’s bills to fee schedule before application of the $1,000.00 deductible. This issue has been squarely addressed. See Progressive Select Ins. Co., v. Florida Medical Center, Inc., No. SC18-278 [260 So. 3d 219] (December 28, 2018) [44 Fla. L. Weekly S59a].
In construing the plain meaning of the statutory language adopted by the Legislature the Florida Supreme Court reasoned that:
A plain reading of the statutory provisions makes clear that the deductible must be subtracted from the provider’s charges before the reimbursement limitation is applied. In the context of section 627.736(1), “expenses and losses” refers to something different from “benefits.” “Benefits” are the amount paid by the insurer — determined by the 60% and 80% methodologies, and governed by the fee schedule, when applicable. “Expenses and losses,” on the other hand, refers to the total charges submitted to the insured — not only those which may be recovered as benefits. And section 627.739(2) provides that the deductible must be applied to 100% of such “expenses and losses.” Subtracting the deductible from the reduced fee schedule amount would violate this requirement. The reference in section 627.739(2) to “100 percent of the expenses and losses described in [section] 627.736” thus is to the amount charged before the application of the reimbursement limitation authorized by section 627.736(5)(a)1. To conclude otherwise would deprive the statute’s reference to “100 percent” of its manifest meaning.
Thus, the Florida Supreme Court’s opinion in Progressive holds that Fla. Sta. §627.739(2):
. . .requires the deductible to be subtracted from “100 percent” of expenses and losses, not 75% of a provider’s customary charges. We therefore hold that, when calculating the PIP benefits due an insured, the deductible must be subtracted from the total medical charges before applying the reimbursement limitation in section 627.736(5)(a)1.b. . . .
Accordingly,
Plaintiff’s Motion for Summary Judgment as to Billed Amount is GRANTED,
Defendant’s Motion for Summary Judgment as to Billed Amount is DENIED,
Plaintiff’s Motion for Summary Judgment as to Deductible is GRANTED.
Defendant’s Motion for Summary Judgment as to deductible is DENIED.
Defendant’s Motion to Stay Proceedings is DENIED as Moot.
ORDERED AND ADJUDGED that the Plaintiff, ROYAL PALM BEACH REHAB, CORP., do have, receive and recover liquidated damages from the Defendant, GEICO INDEMNITY COMPANY the sum of $100.00, on principal. In addition, the Plaintiff shall recover prejudgment interest of $13.50, for which said amounts let execution issue. Plaintiff is entitled to post-judgment interest at the rate of 6.89 % per annum.
The Court reserves jurisdiction as to the taxing of attorney’s fees and costs pursuant to Florida Statutes 627.428 and 627.736
