5 Fla. L. Weekly Supp. 656a
Insurance — Personal injury protection — Insurer acted improperly when it selectively applied medical bills to deductible in a manner which minimized insured’s benefits — Remanded for recalculation of deductible — Amount of reduced bill negotiated by insurer should be used in recalculating deductible, not amount of original bill
DELTHA COSME, Plaintiff/Appellant, vs. FIDELITY NATIONAL INSURANCE COMPANY, a Florida corporation, Defendant/Appellee. 11th Judicial Circuit in and for Miami-Dade County. Appellate Division. Case No. 96-391AP. L.T. Case No. 95-2667 CC 05 (01). Opinion filed May 8, 1998. An Appeal from County Court for Miami-Dade County, Shelley Kravitz, Judge. Counsel: Alfred H. Fuentes, for Appellant. John C. Llarena, for Appellee.
(Before GISELA CARDONNE, WILLIAM JOHNSON and LESTER LANGER, JJ.)
(Lester Langer, J.) This Appeal involves an action to compel payment of personal injury protection (PIP) benefits. Appellant, DELTHA COSME, (hereinafter COSME) is the Plaintiff/Appellant and FIDELITY NATIONAL INSURANCE COMPANY, a Florida Corporation, (hereinafter FIDELITY) is the Defendant/Appellee. The Appellant was the named insured under an automobile insurance policy issued by the Appellee. The policy provided for payment of PIP benefits subject to a $2,000.00 deductible.
On August 6th, 1994, COSME was involved in a motor vehicle accident. As a result of the collision, Appellant was injured and incurred a total of $8,205.00 in hospital and medical expenses. According to the Appellant’s Brief, FIDELITY is responsible for the payment of $4,564.00 in PIP benefits after the $2,000.00 deductible.
FIDELITY first considered the bills of Jackson Memorial Hospital ($624.00), Randle Eastern Ambulance ($176.00) and Miami Radiologist ($185.00). Eighty percent (80%) of each bill was applied to the deductible. After application, the amount of the remaining deductible was $1,212.00.
The parties are in dispute as to which of two bills should have been considered next, Gables MRI or Dr. Pedro Hernandez. The bills were submitted to FIDELITY on January 17, 1995. According to the record Dr. Hernandez’s bill was reviewed first ($4,265.00), however it was the Gables MRI’s bill ($1,325.00) which is applied to the deductible first. The doctor’s bill was considered by the claims adjuster on February 6, 1995. However, the deductible had not been applied at that time. On that same date, FIDELITY reached an agreement with Dr. Hernandez to accept the sum of $2,250.00 in full and final payment of his bill. The PIP payout sheet indicates that both bills (Gables MRI and Dr. Hernandez) were considered on February 9th, 1995. After applying the Gables MRI charges to the deductible, the claims adjuster considered Dr. Hernandez’s bill. The claims adjuster reduced the doctor’s bill from the original amount to $3,002.50. The total medical expenses were thereby reduced from $8,205.00 to $6,942.50.
On February 15th, 1995, Appellant filed her lawsuit to compel payment of PIP benefits. Both sides moved for Summary Judgment. The Court ruled in favor of Appellee and entered a Summary Judgment. On September 9th, a Final Judgment was entered in favor of the Appellee. There was no oral argument in this matter as it was considered on the Briefs of the parties.
Section 627.736, Florida Statutes (1996), provides that “every insurance policy complying with the security requirements of Section 627.733 shall provide personal injury protection to … persons operating the insured motor vehicle … to a limit of $10,000.00 for loss sustained by any such person as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance or use of a motor vehicle …”. The insurer must pay “80% of all reasonable expenses for necessary medical, surgical, x-ray, dental and rehabilitative services” and “60% of any loss of gross income and loss of earning capacity per individual for inability to work proximately caused by injuries sustained by the injured person …”. The plain reading of this Statute requires a construction that subtracts the deductible from the 80% of the medical expenses. International Bankers Insurance Company v. Arnone, 552 So.2d 908, 911 (Fla. 1989).
The Court in Palma v. State Farm Fire & Casualty Co., 489 So.2d 147, 149 (Fla. 4th DCA 1986) ruled that “the policy of the Court of Florida when construing provisions of the Florida No-Fault Act has always been to construe the act liberally in favor of the insured.”
Although the Insured argues that FIDELITY should have applied the amount of the original bill of Dr. Hernandez to the deductible rather than the reduced amount, the ultimate issue before the Court is the order in which the bills were applied to the deductible. Dr. Hernandez’s original bill for $4,265.00 was settled with Dr. Hernandez for $2,250.00. However, the claims adjuster reduced Dr. Hernandez’s bill to $3,002.50 and applied 80% or $2,402.00 to the deductible. Dr. Hernandez’s bill reached FIDELITY first and should therefore have been applied to the deductible instead of the Gables MRI bill. A significant portion of Dr. Hernandez’s bill should have been covered by FIDELITY. Specifically, had the $2,402.00 been applied to the remaining deductible of $1,212.00, Dr. Hernandez should have been paid $1,190.00 and MRI should have been paid in its entirety by FIDELITY.
However, by applying the MRI Gables bill first, COSME became responsible for $1,212 00 of the $1,325.00 of the Gables MRI bill and FIDELITY $113.00. FIDELITY then became responsible for 80% of Dr. Hernandez’s bill or $2,402.00. If Dr. Hernandez’s bill had been applied first, the entire MRI Gables bill would have been paid by FIDELITY, thereby reducing COSME’s out of pocket expenses.
FIDELITY has selectively applied the bills to the deductible in such a manner which minimizes the insured’s benefits. Case law indicates that it is the Statute’s intent to maximize the benefits available to an insured under their insurance policy. In Bennett v. State Farm Mutual Automobile Insurance Company, 580 So.2d 217 (Fla. 2d DCA 1991) the insured brought a cause of action because the insurer refused to reapportion her benefits in a manner which would have afforded her the maximum benefits under her policy. The Court held that as an insured, she had the right to apportion her claim so as to obtain the maximum benefits available under her insurance policy. The Court further concluded that by not allowing her to reapportion her claim, she was not receiving the full value of the contract for which she bargained and paid premiums.
There appears to be no case law addressing the issue of whether the physician’s bill should be reduced. However, the Appellee relies on Botero v. Fidelity National Insurance Co., 4 Fla. Supp. 440 (Fla. 11th Cir. Ct. 1996) for the proposition that the reduced bill should be applied to the deductible. The Plaintiff in Botero brought suit against FIDELITY under her policy for PIP. Under the policy, the insurance pays 80% of the cost of her medical expenses and she makes a 20% co-payment. Botero asserted that she owed Dr. Hoffman 20% of the original bill. Fidelity settled with one of her physicians, Dr. Howard Hoffman for $2,250.00, which was less than 80% of the amount billed. The 11th Circuit Court in Botero concluded that a co-payment is to mean no more than 20% of the reasonable amount, subsequently agreed, and not the first amount billed. Based on Botero, in this instance, FIDELITY correctly applied Dr. Hernandez’s reduced bill rather than the original amount in order to determine the amount owed by both FIDELITY and the Appellant.
Based upon the above, the Order below is reversed and remanded to recalculate the deductible by utilizing Dr. Hernandez’s bill first, at the reduced amount ($3,002.50), rather than the original amount claimed. In all other respects, the Order is AFFIRMED.
Affirmed in part; Reversed in part and Remanded with instructions.
The Appellant’s Motion for Attorney’s Fees is GRANTED and Remanded to the trial court for determination in accordance with this opinion. (GISELA CARDONNE and WILLIAM JOHNSON, JJ., Concur.)
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