27 Fla. L. Weekly Supp. 856a
Online Reference: FLWSUPP 2710AVILInsurance — Personal injury protection — Coverage — Medical expenses — Where PIP policy does not elect statutory fee schedule method of reimbursement, medical provider moving for summary judgment as to reasonableness of charges must show by summary judgment evidence that charges are reasonable — Trial court erred in entering summary judgment on reasonableness issue based on erroneous belief that provider is always entitled, as matter of law, to be reimbursed no less than 80% of 200% of Medicare fee schedule
UNITED AUTOMOBILE INSURANCE CO., Appellant, v. SKYLAKE MEDICAL CENTER, INC. a/a/o Giancarlo Avila, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2018-000221-AP-01. L.T. Case No. 2013-018678-SP-25. November 27, 2019. An Appeal from the County Court in and for Miami-Dade County, Patricia Marino Pedraza, County Court Judge. Counsel: Michael H. Neimand, House Counsel of United Automobile Insurance Company, for Appellant. Todd Landau, Todd Landau, P.A., for Appellee.
(Before TRAWICK, WALSH and REBULL, JJ.)
(REBULL, J.) In this case, we are asked to decide whether the provider of medically necessary electrical muscle stimulation, which was related to the underlying car accident is always entitled, as a matter of law, to be reimbursed no less than eighty percent of 200% of the applicable Medicare fee schedule. We answer this question in the negative. In so doing we make clear that a provider moving for summary judgment as to the reasonableness of a charge for a particular service, is always required to “show”1 by summary judgment evidence that the amount charged is reasonable.
In the provider’s motion for summary judgment that resulted in the order on appeal, the provider argued that because the insurer — pre-suit — mistakenly relied on the workers’ compensation fee schedule in reimbursing for the service, the provider was entitled to a summary judgment that a reasonable charge for its service was eighty percent of 200% of the applicable Medicare fee schedule. Despite the provider not having specifically identified any summary judgment evidence on file in support of the reasonableness of its charge, the trial court granted the motion. The trial court apparently accepted the argument made by the provider on appeal, namely that “an insurer’s payment pursuant to Florida Statute § 627.736(5)(a)(1), can never be less than the amount the provider would have received if the insurer had availed itself of the permissive language contained in Florida Statute § 627.736(5)(a)(2)(f).” Answer Br. at 8-9. We reverse.
A few things are clear from the record, or undisputed, or both. The insurance policy in this case did not provide notice of the insurer’s election to use “the permissive Medicare fee schedule method of calculating reasonable medical expenses . . .”2 Thus, because the insurer’s policy did not elect the “alternative [fee schedule] mechanism for determining reasonableness” provided by sub-subparagraph 627.736(5)(a)2.f., the parties were left with a situation where “a fact-finder must determine whether the amount billed was reasonable,” Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So. 3d 147, 156 (Fla. 2013) [38 Fla. L. Weekly S517a], by consideration of the various factors set forth in subparagraph (5)(a)1.
Nowhere in the language of section 627.736 does it provide that there is a “floor,” or a minimum amount that a provider is entitled to be paid as a matter of law. Indeed, an examination of the pertinent language of the statute reveals that it only addresses the “ceiling” of what a provider may charge, or the reimbursement amount an insurer may “limit.”
Paragraph (1)(a), requires PIP insurance policies to reimburse medical benefits for eighty percent of all “reasonable” expenses for medically necessary services.
627.736 Required personal injury protection benefits; exclusions; priority; claims. —
(1) REQUIRED BENEFITS. — Every insurance policy complying with the security requirements of s. 627.733 shall provide personal injury protection . . . for loss sustained by any such person as a result of bodily injury . . . arising out of the ownership, maintenance, or use of a motor vehicle as follows:
(a) Medical benefits. — Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services . . . .
§ 627.736(1)(a), Fla. Stat. (2009) (emphasis added).
In subsection (5), which expressly addresses “charges for treatment of injured persons,” subparagraph (5)(a)1. states that the provider “may charge the insurer and injured party only a reasonable amount pursuant to this section3 . . . .” Why does the statute use the modifier “only,” with reference to what a provider can charge? Out of a concern that the provider will charge an amount that is too low? Or that there be some minimum level of reimbursement? We think not.
Beyond the “reasonableness” limitation, subparagraph (5)(a)1. sets a further “ceiling” or limit on what a provider may charge: “In no event, however, may such a charge be in excess of the amount the person or institution customarily charges for like services or supplies.” A fair reading of this language is that it is yet another way the statute is guarding against unreasonably high charges to “the insurer and injured party.”
Next, we come to subparagraph 2., and specifically, sub-subparagraph 2.f., which is the one at issue in this case. Subparagraph 2. declares that an “insurer may limit reimbursement to 80 percent of the following schedule of maximum charges: . . .” § 627.736(5)(a)2., Fla. Stat. (2009) (emphasis added). We reject the provider’s argument that this language can be somehow read to mean that the insurer’s reimbursement “can never be less” than the amounts set forth in the applicable schedules. To the contrary, this language give the insurer the option (if properly elected in the policy), to pay no more for the charge at issue than what is set forth in the applicable fee schedule. In no way does this language provide a “floor” or a minimum amount which an insurer must pay. Indeed, as set forth above, the insurer is always obligated to pay “only a reasonable amount,” and that amount may be lower than the applicable fee schedule, in any particular factual scenario.
In a provider’s suit such as this one seeking PIP benefits, reasonableness is always an element of the plaintiff’s prima facie case, on which it bears the burden of proof. Derius v. Allstate Indem. Co., 723 So. 2d 271, 272 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a]. Here, in moving for summary judgment on the reasonableness of the amount it charged for electrical muscle stimulation, the provider had the burden to identify summary judgment evidence on file which showed no genuine issue of fact as to the reasonableness of the amount. It indisputably failed to do so. As a result, the trial court erred in granting the motion for summary judgment.
Finally, we reject the provider’s “tipsy coachman” argument for affirming the summary judgment, as the argument it makes for affirmance is not contained in the motion for summary judgment which the trial court granted. “[I]t is well-settled that [t]he [t]ipsy [c]oachman doctrine does not apply to grounds not raised in a motion for summary judgment . . . .” Sousa v. Zuni Transp., Inc., 44 Fla. L. Weekly D2461a (Fla. 3d DCA Oct. 2, 2019) (internal quotations and citations omitted).
Reversed and remanded. (WALSH, J., CONCURS.)
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1The rule provides that the summary “judgment sought must be rendered immediately if the pleadings and summary judgment evidence on file showthat there is no genuine issue as to any material fact . . . .” Fla. R. Civ. P. 1.510(c) (emphasis added). This assumes, of course, that the issue of reasonableness is in dispute, and has not been admitted by the pleadings or stipulated to by the parties.
2 Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So. 3d 147, 158 (Fla. 2013) [38 Fla. L. Weekly S517a]. And thus, United Auto “was not permitted to limit reimbursements in accordance with the Medicare fee schedules.” See id. (emphasis added)
3According to the numbering system set forth in the preface to the Florida Statutes, this “section” refers to all of 627.736. In other words, the statutory mandate that a provider charge only a reasonable amount, applies regardless of the method that is used to arrive or calculate a reimbursement or payment.
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(TRAWICK, J. concurring) I write separately to address the conclusion of the majority that when a trial court considers a motion for summary judgment on the issue of reasonableness, a provider must point to record evidence to show that the amount charged was reasonable. I do not disagree with this conclusion. However, a trial court should exercise great caution in granting summary judgment in such a circumstance as reasonableness “is generally a factual issue ripe for determination by a jury.” State Farm Mut. Auto. Ins. Co. v. Florida Wellness & Rehab. Ctr., Inc., 25 Fla. L. Weekly Supp. 5a (Fla. 11th Cir. Ct. 2017), quoting State Farm Mut. Auto. Ins. Co. v. Sunset Chiropractic & Wellness, 24 Fla. L. Weekly Supp. 787a (Fla. 11th Cir. Ct. 2017).
