25 Fla. L. Weekly Supp. 48a
Online Reference: FLWSUPP 2501JONEInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy that not only complies with notice provision of section 627.736(5)(a)5 but also clearly advises that in no event will insurer pay any amount above fee schedule amount provided sufficient notice of insurer’s intent to limit reimbursement to permissive statutory fee schedule
NEUROLOGY PARTNERS, P.A., d/b/a EMAS SPINE & BRAIN SPECIALISTS, as assignee for Lori E. Jones-Taylor, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2016-SC-000537, Division CC-C. March 8, 2017. Brent D. Shore, Judge. Counsel: Adam Saben, for Plaintiff. James C. Rinaman III, Dutton Law Group, Jacksonville, for Defendant.
ORDER ON DEFENDANT’S AMENDED MOTIONFOR FINAL SUMMARY JUDGMENT AS TOAPPLICATION OF THE MEDICARE FEESCHEDULE AND ORDER ON PLAINTIFF’SMOTION FOR SUMMARY JUDGMENT REGARDINGDEFENDANT’S POLICY LANGUAGE PERMITTINGF.S. 627.736(5)(a)(1)(2013)
In this lawsuit regarding personal injury protection (“PIP”) benefits, the Court is called upon to determine whether the subject insurance contract provided sufficient notice to limit reimbursement under the Medicare fee schedule methodology. The facts are not in dispute and the resolution of this issue is purely a matter of law.
The standard for summary judgement is well known and need not be repeated here. Both parties agree that this issue is dispositive of the case, although Defendant reserves the right to challenge the reasonableness of plaintiff’s charges if it were not to prevail on its Motion for Summary Judgment. Accordingly, the matter is ripe for a determination of whether either party is entitled for summary judgment on the issue of whether Defendant’s policy language was sufficient to legally elect to pay bills utilizing the PIP Statute fee schedules.
Under Florida case law reviewing the 2008 Amendment to Fla. Stat. §627.736, PIP insurers must “clearly and unambiguously elect the permissive [i.e., Medicare Fee Schedule] payment methodology in order to rely on it.” Geico Gen. Ins. Co. v. Virtual Imaging Servs. Inc., 141 So. 3d 147, 158 (Fla. 2013) [38 Fla. L. Weekly S517a]. In the Virtual Imaging ruling, although the Florida Supreme Court recognized that the Legislature amended the PIP statute in 2012, to include a Notice provision, the Court nevertheless specifically limited its holding to apply “only to policies that were in effect from the effective date of the 2008 amendments to the PIP statute that first provided for the Medicare fee schedule methodology, which was January 1, 2008, through the effective date of the 2012 amendment, which was July 1, 2012. Virtual Imaging, 141 So. 3d at 154. In the present case, the parties agree that the 2012 amendment to the PIP Statute applies, and not the 2008 PIP Statute amendment. Accordingly, this Court finds that the holding in Virtual Imaging is not applicable to this matter.
After the 2012 Amendment to the PIP Statute, Section 627.736(5)(a)5., Fla. Stat., provided that such an election to limit payment to Medicare fee schedule is effective only if a notice of limitation is provided by the policy:
An insurer may limit payment [to the Medicare Fee Schedule method] only if the insurance policy includes a notice at the issuance or renewal that the insurer may limit payment pursuant to the schedule of charges specified in this paragraph. . .
Fla. Stat. §627.736(5)(a)5 (emphasis added).
The use of the word “may” in Fla. Stat. §627.736(5)(a)5., leads to the conclusion that the 2012 amendment to the statute presents an alternative, but non-exclusive, use of the permissive fee schedules for covered claims.
The Florida Supreme Court stated in Koile v. State, 934 So. 2d 1226, 1230 (Fla. 2006) [31 Fla. L. Weekly S501a] that:
[b]efore resorting to the rules of statutory interpretation, courts must first look to the actual language of the statute itself. Joshua v. City of Gainesville, 768 So. 2d 432, 435 (Fla. 2000) [25 Fla. L. Weekly S641a]; accord BellSouth Telecomms., Inc. v. Meeks, 863 So. 2d 287, 289 (Fla. 2003) [28 Fla. L. Weekly S775b]. As this Court has often repeated:
When the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent. See Lee County Elec. Coop., Inc. v. Jacobs, 820 So. 2d 297, 303 (Fla. 2002) [27 Fla. L. Weekly S379a]. In such instance, the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent. See State v. Burris, 875 So. 2d 408, 410 (Fla. 2004) [29 Fla. L. Weekly S149a]. When the statutory language is clear, “courts have no occasion to resort to rules of construction — they must read the statute as written, for to do otherwise would constitute an abrogation of legislative power.” Nicoll v. Baker, 668 So. 2d 989, 990-91 (Fla. 1996) [21 Fla. L. Weekly S96a]. However, if the statutory intent is unclear from the plain language of the statute, then “we apply rules of statutory construction and explore legislative history to determine legislative intent.” BellSouth Telecomms., Inc., 863 So. 2d at 289
In reviewing the applicable 2012 Fla. Stat. §627.736(5)(a)(5), the Court finds the language of the Statute to be clear and unambiguous. Accordingly, the 2012 amendment to the statute represents a clear departure from the judicially created notice requirement announced in Virtual Imaging. It therefore becomes apparent, with the 2012 amendment to the PIP statute, the Legislature did not intend to mandate the use of the Medicare Part B fee schedule in all PIP policies. Instead, it permits an insurer the option to utilize 200% of Medicare Part B fee schedule as a limitation on its payments, but it also clearly allows the insurer to pay a “reasonable” amount on any particular bill, if the insurer challenges a particular charge. However, where the insurer gives notice that satisfies the requirements of Fla. Stat. §627.736(5)(a)(5), that it may utilize the fee schedule, and the insurer calculates its payment at that amount, no suit may be brought to challenge the amount paid. In the instant case, the parties have stipulated that all bills were paid using the fee schedule methodology.
Progressive’s endorsement A085 FL not only complies with the Notice Provision of § 627.736(5)(a)5., but also goes beyond advising the insured that it will limit reimbursement to the schedule of maximum charges.
Additionally, analyzing Progressive’s subject policy language under the previous, more stringent, notice requirement laid out in Virtual Imaging, yields the same result. Progressive’s policy clearly defines, in the language of its endorsement, that it will determine an “unreasonable or unnecessary benefit” to be anything in excess of the maximum charges set forth in Section 627.736(5)(a)1 (a through f) of the No-Fault Law. Further, in the event the Progressive determines an “unreasonable or unnecessary benefit,” it will limit reimbursement to no more than 80% of the listed maximum charges. Progressive’s endorsement language clearly and affirmatively notifies the insured what will constitute an “unreasonable or unnecessary benefit” and what reimbursement amount Progressive will provide when this event occurs.
Plaintiff argues that, while Defendant’s policy clearly establishes that it will not pay any amount above the fee scheduled amount, the policy language does not prevent the Defendant from paying amounts less than fee schedule. However, a PIP policy cannot contain a statement that the insurer will not pay 80% of reasonable charges, because no insurer can disclaim the PIP statute’s reasonable medical expenses coverage mandate. See, Virtual Imaging, 141 So. 3d at 155.
THEREFORE, it is herby
ORDERED and ADJUDGED:
(1) That Defendant’s Amended Motion For Final Summary Judgment Regarding Defendant’s Policy Language Permitting Use Of F.S. 627.736 (5)(a)(1) (2013) is hereby GRANTED.
(2) The Plaintiff’s Motion for Summary Judgement is denied, and Plaintiff shall take nothing by this action and Defendant shall go hence without day. The Court reserves jurisdiction to determine reasonable attorney fees upon appropriate and timely Motion by Defendant.