28 Fla. L. Weekly Supp. 433b
Online Reference: FLWSUPP 2806EVANInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — Policy clearly and unambiguously elected to limit reimbursement payments to the schedule of maximum payments by stating that “we will limit reimbursement to, and pay no more than, 80 percent of … schedule of maximum charges” — No merit to medical provider’s contention that insurer must elect either the reasonable charge method of calculation or the schedule of maximum charges method of calculation and that, because its policy includes both, insurer relied on an unlawful hybrid method of reimbursement calculation — Trial court erred in entering summary judgment in favor of provider
PROGRESSIVE AMERICAN INSURANCE COMPANY, Appellant, v. NEUROLOGY PARTNERS, P.A., d/b/a EMAS SPINE & BRAIN SPECIALISTS, a/a/o Arkeelia Evans, Appellee. Circuit Court, 4th Judicial Circuit (Appellate) in and for Duval County. Case No. 2017-AP-0060. L.T. Case No. 16-2015-SC-5526. April 30, 2019. Counsel: Michael C. Clarke, Kubicki Draper, P.A., Tampa, for Appellant. Adam Saben and Melissa R. Winer, Shuster & Saben, LLC., Jacksonville, for Appellee.
ORDER ON APPEAL
(JAMES H. DANIEL, J.) Progressive American Insurance Company (“Progressive”) appeals the entry of summary judgment in favor of Neurology Partners, P.A., d/b/a Emas Spine & Brain Specialists (“Neurology Partners”) requiring Progressive to pay additional personal injury protection benefits (“PIP”) on behalf of its insured related to a January 2015 automobile accident. Progressive’s insured sought medical treatment from Neurology Partners and Progressive paid all but $126.35 of the total amount of the bill. Progressive based its decision to limit the PIP benefits on the maximum fee schedule outlined in its policy that tracked the language in the PIP statute found at section 627.736(5), Florida Statutes (2015). Neurology Partners took an assignment of benefits from Progressive’s insured and filed suit arguing that the policy language limiting payments to the statutory fee schedule was ambiguous and that Progressive owed the full amount of the bill. The trial court agreed with Neurology Partners, found the policy language ambiguous, and granted summary judgment in its favor. The trial court, however, did not have the benefit of the decision in State Farm Mutual Automobile Insurance Co. v. MRI Associates of Tampa, Inc., 252 So. 3d 773 (Fla. 2d DCA 2018) [43 Fla. L. Weekly D1149a], when it entered its order and, on the authority of this decision, the final judgment granting summary judgment in favor of Neurology Partners must be reversed.
Progressive’s PIP policy required the company to pay medical benefits for its insured arising out of a motor vehicle accident. The policy states “[m]edical benefits means 80 percent of all reasonable medical expenses incurred for medically necessary medical, surgical, x-ray, . . . services. . . .” The policy goes on to limit reimbursement for “medical benefits” in the following manner:
UNREASONABLE OR UNNECESSARY MEDICAL BENEFITS. If an insured person incurs medical benefits that we deem to be unreasonable or unnecessary, we may refuse to pay for those medical benefits and contest them.
We will determine to be unreasonable any charges incurred that exceed the maximum charges set forth in 627.736(5)(a)1(a through f) of the Florida Motor Vehicle No Fault law, as amended. Pursuant to Florida law, we will limit reimbursement to, and pay no more than, 80 percent of the following schedule of maximum charges:
a. For emergency transport and treatment by providers listed under Chapter 401, Florida Statutes, 200 percent of Medicare;
. . .
Progressive relied upon this language to deny paying Neurology Partners the full amount of the bill for its radiological services.
The Progressive policy language in question tracks the method of reimbursement outlined in section 627.736(5)(a), Florida Statutes (2015):
(5) Charges for treatment of injured persons. —
(a) A physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered . . . . In determining whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, reimbursement levels in the community and various federal and state medical fee schedules applicable to motor vehicle and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.
In the very next section of the PIP statute, the legislature provided an alternative method of reimbursement:
(1) The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
a. For emergency transport and treatment by providers licensed under chapter 401, 200 percent of Medicare.
§627.736(5)(a)1, Fla. Stat. (2015).
Neurology Partners maintains that the language in the PIP statute found at section 627.736(5)(a) mandates a choice by PIP insurers such as Progressive to either reimburse their insureds for reasonable medical expenses using the “fact-dependent” method to determine what charges are “usual and customary” in the relevant community or the method that relies solely on the “maximum fee schedule.” In using the term “reasonable medical expenses” to describe Progressive’s obligation under its policy, but capping its obligation to pay “reasonable medical expenses” based on a “schedule of maximum charges,” Neurology Partners argues that the language in Progressive’s PIP policy is ambiguous and at odds with the requirement under section 627.736(5)(a) that insurers elect one of the two alternative methods for reimbursement of PIP benefits. According to Neurology Partners, Progressive can choose one method or the other, but not an “unlawful hybrid method” of payment that allows Progressive to pay the usual and customary medical charges that are below, but not in excess of, the maximum fee schedule.
The question under consideration in this case is purely legal and this court will apply de novo review to the lower court’s decision. See Allstate Ins. Co. v. Orthopedic Specialists, 212 So. 3d 973, 975 (Fla. 2017) [42 Fla. L. Weekly S38a] (“Because the question presented requires this Court to interpret provisions of the Florida Motor Vehicle No-Fault Law — specifically, the PIP statute — as well as to interpret the insurance policy, our standard of review is de novo.”) The court in State Farm Mutual Automobile Insurance Co. v. MRI Associates of Tampa, Inc., supra, addressed almost identical arguments by the provider of medical services in its attempt to obtain full reimbursement of the provider’s charges above the statutory maximum fee schedule contained in a State Farm PIP policy. Similar to the language in the Progressive policy at issue in this case, State Farm’s PIP policy limited what was “reasonable” to no more than the maximum fee schedule provided in section 627.736(5)(a)1. MRI Associates of Tampa, Inc., 252 So. 3d at 775-76. In rejecting the provider’s arguments, the court held that a 2012 amendment to section 627.736(5)(a) should be interpreted to mean that “there are no longer two mutually exclusive methodologies for calculating the reimbursement payment owed by the insurer.” Id. at 778. The court further observed:
The 2013 PIP statute includes the fact-dependent calculation of reasonable charges as a part of the definition of “[c]harges for treatment of injured persons” under section 627.736(5)(a). And an insurer may not disclaim the fact-dependent calculation; however, it may elect to limit its payment in accordance with the schedule of maximum charges under subsection (5)(a)(1)(a)-(f).
Id. at 778. In other words, PIP insurers are obligated to pay “reasonable medical expenses,” but they can limit what is reasonable to no more than what is specified in the maximum fee schedule contained in section 627.736(5)(a)1.
Both sides have spent considerable time arguing the applicability, or lack thereof, of the decisions in Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So. 3d 147, 150 (Fla. 2013) [38 Fla. L. Weekly S517a] (Holding that the PIP statute at section 627.736 requires the insurer to make an election between paying benefits under the fact-dependent method of what is “reasonable” or the maximum fee schedules, but not both); Allstate Ins. Co. v. Orthopedic Specialists, 212 So. 3d at 975 (Holding PIP policy language stating that “[a]ny amounts payable for medical expense reimbursements shall be subject to any and all limitations, authorized by section 627.736, . . . including . . . all fee schedules” was unambiguous, consistent with the holding in Virtual Services, Inc., and adequately placed the insured and service providers on notice of the insurer’s election of the schedule of maximum charges limitation). Neither of these cases is applicable to the PIP policy in the instant case because they each interpreted a version of the PIP statute that predated the 2012 amendment to section 627.736(5)(a). MRI Associates of Tampa, Inc., 252 So. 3d at 777-778. The court in MRI Associates of Tampa, Inc. was very clear. The 2012 amendment changes the way the statute should be interpreted and PIP insurers are no longer required to choose one method of reimbursement to the exclusion of the other.
Curiously, neither Appellee nor Appellant pointed out during oral argument the longstanding requirement that “a circuit court (even in its appellate capacity) is bound to apply existing precedent from another district if its district has not yet spoken on the issue. In this regard, a party is unable to argue that the circuit court should rule differently on the same issue of law.” Nader v. Florida Dept. of Highway Safety and Motor Vehicles, 87 So.3d 712, 724 (Fla. 2012) [37 Fla. L. Weekly S130a]; See also Pardo v. State, 596 So. 2d 665, 667 (Fla. 1992). When the initial and answer briefs were filed in this case, MRI Associates of Tampa, Inc., had not yet been decided. By the time Appellant filed its reply brief, that was not the situation, and it was certainly not the situation when the parties scheduled and conducted oral argument. It is understandable that the parties would want to preserve all arguments for a possible petition for writ of certiorari to the district court, but this court has no choice except to reverse the county court’s decision to grant summary judgment in favor of Neurology Partners, and has had no choice since MRI Associates of Tampa, Inc. became final upon issuance of the mandate in that case.
As a result, the final summary judgment in this case is reversed and the case is remanded to the county court with directions to enter final summary judgment in favor of Progressive.
