9 Fla. L. Weekly Supp. 771a
Insurance — Personal injury protection — Insurer was not entitled to utilize contractual rate agreement with third party to determine reasonable and necessary charges without offering, and insured electing, a PPO policy or endorsement
GREGORY J. HARBERS, D.C., d/b/a DEBARY CHIROPRACTIC CENTER, a/a/o Shirley Brucker, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2001-11131-CODL. September 4, 2002. J.R. Smith, Judge. Counsel: Kimberly P. Simoes, Daytona Beach. Sandra Kotur, Orlando.ORDER
THIS CAUSE having come before the Court for consideration on Plaintiff’s Motion for Partial Summary Judgment and the Court having reviewed the Motion and being otherwise advised in the premises, it is hereby:
ORDERED AND ADJUDGED:
1. The Plaintiff’s Motion for Partial Summary Judgment as to the Count for Declaratory Relief is hereby granted.
2. In the instant case, it is undisputed that Progressive Express Insurance Company reduced Plaintiff’s bills for medical treatment pursuant to a contractual rate agreement between the Plaintiff/health care provider and a third party (Beech Street), but admits it did not enter into a contract directly with the Plaintiff/health care provider, did not offer both a PPO and Non-PPO policy at the time the insured purchased the policy and did not offer the insured the election to have a PPO endorsement in her policy.
3. Progressive contends it is entitled to utilize the contractual rate agreement for the purpose of determining reasonable and necessary charges pursuant to Florida Statute 627.736(1) without offering and the insured electing a PPO endorsement under Fla. Statute 627.736(10).
4. This Court finds that the provisions of Section 627.736(10), Florida Statutes, require Progressive in this type of case to offer an insured an option to use a preferred provider at the time the insured purchases a policy for person injury protection, and the insured must elect the option. The key language that persuades the Court that this requirement be met is found in 627.736(10) which states in part “If the insured elects to use a provider who is a preferred provider, the insurer may pay medical benefits in excess of the benefits required by this section…”. It is clear that by this language, the legislature intended that only when the insured elected the “Preferred Provider” option can the insurance company pay benefits in excess of the benefits required by 627.736(1)(a) i.e. 90% of covered medical expenses. It is only upon the insured’s election that the insurer can benefit from its contract with the licensed health care provider. The requirement of the insurance company to offer the “Preferred Provider” option keeps the insured within the “loop” so to speak so the insured can understand the benefit and services he or she will receive and understand the charge that will be made. This in turn allows the insured to seek out the insurance company that provides the best benefits, promoting free enterprise and keeping intact the insured’s right to choose a health care provider.
5. The insured in this case assigned her personal injury protection benefits to the Plaintiff. The Plaintiff has standing.
6. The Court’s construction of Fla. Statute 627.736(10) does not allow a violation of the U.S. Constitution Article I Section 9cl.1 or Florida Constitution Article I Section 10. The Defendant is free to contract with any licensed health provider it wishes. Before the Defendant can require a licensed health provider, the Plaintiff in this case, to comply with a preferred provider agreement, the insured must be given the option to choose, and the insured must choose a provider. The Court’s interpretation of Fla. Stat. 627.736(10) prevents the insurer or Defendant in this case, from circumventing the insured’s benefits and protection Fla. Statute 627.736 provides and therefore avoiding great prejudice to the public.
7. The Court’s construction of Fla. Statute 627.736(10) leaves the insured with the choice of a policy paying 80% “of all reasonable expenses for medically necessary. . .services” or a policy paying a greater percentage (i.e. 90%) of a negotiated charge for services which may or may not be reasonable and necessary. The insured may rather choose a provider whose charge for services is reasonable and necessary as established by the provider’s profession than a “preferred provider” who has contracted previously with the insurer as to what is reasonable and necessary.
8. This Court reserves jurisdiction for the remaining issue in the Complaint and for the entry of an award of attorney fees and costs relative to the Declaratory Judgment action.
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