27 Fla. L. Weekly Supp. 651a
Online Reference: FLWSUPP 2707SUNCInsurance — Personal injury protection — Coverage — Medical expenses — Where PIP policy provided that charge submitted for amount less than amount allowed by schedule of maximum charges will be paid in amount of charge submitted, insurer was required to pay 100% of charge that was less than 200% of Medicare fee schedule, not 80% of that charge
SUNCOAST HEALING ARTS CENTER, INC., a/a/o Helen Otero, Plaintiff, v. GEICO INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE17012289, Division 51. August 21, 2019. Kathleen Mccarthy, Judge. Counsel: Robert B. Goldman, Florida Advocates, Dania Beach, for Plaintiff.
FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on August 21, 2019 on the Plaintiff’s Motion for Final Summary Judgment, and the Court having reviewed the motion, having reviewed the parties’ Joint Pre-Trial Stipulation, having heard argument of counsel for the Plaintiff, (Defendant failed to appear) and being otherwise fully advised, it is
ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Summary Judgment is GRANTED, for the reasons set forth below:
According to the summary judgment evidence, Geico Indemnity Company (“Geico”) issued an automobile insurance policy (the “Geico Policy”) that provides coverage for the motor vehicle accident in which Helen Otero was involved (the “Motor Vehicle Accident”). The Geico Policy provides, in pertinent part, that Geico will pay in accordance with the Florida Motor Vehicle No Fault Law, 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:
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 . . .
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.
Helen Otero was injured as a result of the Motor Vehicle Accident, as a result of which Suncoast Healing Art Center, Inc. (“Suncoast”) provided medical services that were related to the Motor Vehicle Accident and medically necessary. Suncoast provided medical services to Helen Otero, including CPT Code 99203, the charge for which was less than 200 percent of the allowable amount under the participating physician fee schedule of Medicare Part B. Geico paid less than 100% of the Plaintiff’s charges for CPT Code 99203. The only issue presented is whether Geico made proper payment pursuant to the Geico Policy.
ANALYSIS
Where the determination of the issues of a lawsuit depends upon the construction of a written instrument and the legal effect to be drawn therefrom, the question at issue is essentially one of law only and determinable by entry of a summary judgment. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]. Disputes concerning contract interpretation present questions of law, which are properly resolved by summary judgment. Almand Constr. Co., Inc. v. Evans, 547 So.2d 626, 628 (Fla. 1989). The terms of an insurance policy should be taken and understood in their ordinary sense and the policy should receive a reasonable, practical and sensible interpretation consistent with the intent of the parties — not a strained, forced or unrealistic construction. Gen. Acc. Fire & Life Assur. Corp. v. Liberty Mut. Ins. Co., 260 So.2d 249, 253 (Fla. 4th DCA 1972).
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. Wash. Nat’l Ins. Corp. v. Ruderman, 117 So.3d 943, 948 (Fla. 2013) [38 Fla. L. Weekly S511a]. In that case, the Florida Supreme Court held that “where the provisions of an insurance policy are at issue, any ambiguity which remains after reading each policy as a whole and endeavouring to give every provision its full meaning and operative effect must be liberally construed in favor of coverage and strictly against the insurer.” Id., at 949-950.
“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.” Ruderman, supra, citing Berkshire Life Ins. Co. v. Adelberg, 698 So.2d 828, 830 (Fla. 1997) [22 Fla. L. Weekly S513a].
GEICO HAS VIOLATED THE TERMS OF ITS POLICY,HAVING FAILED TO PAY THE AMOUNT OF THE CHARGESSUBMITTED FOR CPT PROCEDURE CODE 99203
The language of the Geico Policy makes it clear that where a medical provider submits a charge in an amount that is less than the amount allowed by Geico pursuant to the schedule of maximum charges (i.e., in the case of the services provided in this case, less than 200 percent of the allowable amount under Medicare Part B), the medical provider “shall be paid in the amount of the charge submitted”.
As explained by the Florida Supreme Court, this Court should interpret the Geico Policy in accordance with the plain meaning of the words used, so as to give effect to the policy as written. Ruderman, supra, 117 So.3d 943, 948 (Fla. 2013). The plain meaning of the words “shall be paid in the amount of the charge submitted” leaves no room for debate or interpretation — Geico promised to pay 100% of the submitted charge, where the charge is less than 200% of Medicare Part B.
In Yehuda Fishfield, M.D. P.A. (a/a/o Paula Lugo) v. Geico Gen. Ins. Co., 26 Fla. L. Weekly Supp. 432a (Broward County, June 29, 2018), this Court considered the identical policy language, finding Geico’s interpretation (that the 20% coinsurance applies to all charges because the insured’s co-payment responsibility is mandated by the PIP statute and the policy) to be “unreasonable because it defies a plain reading of the plain language.” Accord, County Line Chiropractic Center (a/a/o Campbell, Stephanie) v. Geico Gen. Ins. Co., 26 Fla. L. Weekly Supp. 407a (Miami-Dade County, July 20, 2018) (Geico’s interpretation of the subject policy language found to be “unreasonable because it defies a plain reading of the plain language”).
The identical Geico policy language was also considered by Judge Fry in Doctor’s Pain Management Group (a/a/o Roberto Borrego) v. Geico Gen. Ins. Co., 26 Fla. L. Weekly Supp. 429a (Broward County, Judge John D. Fry, June 12, 2018). In that case, Judge Fry reasoned that Geico had “promised it would pay the whole charge when less than 200% of the Medicare Part B fee schedule amount, thus relieving its insured of the co-payment obligation in this circumstance and compelling Geico to pay the full amount charged to the Plaintiff.” With respect to Geico’s argument as to the PIP statute mandating the insured’s obligation to pay the 20% coinsurance, Judge Fry observed that “the PIP statute only provides for the minimal benefits required under Florida’s financial responsibility law and should not be read to limit the benefits the policy provides to the minimum required by statute”. Sturgis v. Fortune Ins. Co., 475 So.2d 1272-73 (Fla. 1985); Wright v. Auto-Owners Ins. Co., 739 So.2d 180-1 (Fla. 2d DCA 1999) [24 Fla. L. Weekly D2033a]. Judge Fry concluded, “[I]n other words, an insurance policy can always afford more benefits than the PIP statute, but it can never afford less.”
Plaintiff has submitted a charge for CPT Procedure Code 99203 that is less than 200 percent of the allowable amount under the participating physician fee schedule of Medicare Part B — i.e., less than the amount allowed by Geico pursuant to the schedule of maximum charges. As a result of Plaintiff’s having submitted charges for amounts less than the amounts allowed under the schedule of maximum charges, Geico was contractually obligated to pay in the amount of the charge submitted, which means 100% of the charge submitted and not 80% of the charge submitted.
TO THE EXTENT THAT THE GEICO POLICY ISAMBIGUOUS, THE AMBIGUITY MUST BE CONSTRUEDAGAINST GEICO AND IN FAVOR OF SUNCOAST
In Yehuda Fishfield, M.D. P.A. (a/a/o Paula Lugo), supra, this Court recognized that even if Geico’s interpretation were found to be reasonable, “then we are left with policy language that is susceptible to two reasonable interpretations,” in which case “the Plaintiff’s interpretation must prevail.” Citing Ruderman, 117 So.3d at 948. See also Valentine Chiropractic (Paola Laskar) v. GEICO Gen. Ins. Co., 26 Fla. L. Weekly Supp. 430a (Broward County, Judge Florence Taylor Barner, March 22, 2018), where Judge Barner quotes the following language from A & M Gerber Chiropractic, LLC v. Geico Gen. Ins. Co., 2017 WL 5571353, * 19-19 (S.D. Fla. 2017), where the court determined the identical Geico Policy at issue in this case to be 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 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 related 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.
In conclusion, Geico breached the insurance contract because it failed to pay the full amount of the charges submitted, even though the charges were less than 200% of the allowable amount under the participating fee schedule of Medicare Part B. It is therefore,
ORDERED AND ADJUDGED THAT Plaintiff’s Motion for Final Summary Judgment is GRANTED.
