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Ross Abramowitz headshot photoInsurance ­­ Personal injury protection ­­ Coverage ­­ Medical expenses ­­ By using confusing language providing for payment of 80% of reasonable expenses while also referencing “other payment guidelines in No Fault Law,” “any schedule and limitations under federal or state law for medical expenses,” and “various sources of information” to determine if medical expense is “reasonable,” insurer failed to satisfy requirement that election to use permissive statutory fee schedule be made in manner so that insured and medical providers would be aware of it

STAND­UP MRI OF MIAMI a/a/o Olga Quinones, Plaintiff, v. MERCURY INDEMNITY CO. OF FLORIDA, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12­ 23011COCE (55). July 23, 2013. Sharon L. Zeller, Judge. Counsel: Ross Abramowitz, Shuster and Saben, LCC., Fort Lauderdale, for Plaintiff. Louis Shulman, Dutton Law Group, P.A., Tampa, for Defendant.


THIS CAUSE having come before the court on Defendant's Motion for Final Summary Disposition or Summary Judgment and Plaintiff's Motion for Summary Judgment, and the Court having considered the Motions, reviewed the court file, relevant legal authorities, being apprised of the joint stipulation between the parties that permits a final judgment in favor of Plaintiff upon the granting of Summary Judgment in Plaintiff's favor and being otherwise fully advised in the premises, the court finds as follows:

This case involves competing interpretations of a PIP insurance policy. Plaintiff's interpretation would result in Defendant having to pay more on the medical bill submitted, and Defendant's interpretation would result in a finding that the lesser amount it paid complied with the policy.

 Defendant's U­10 FL MIDA Ed. 07/2010 policy form, as it pertains to personal injury protection (PIP) coverage, provides as follows:

“If you buy Personal Injury Protection from us, we will pay: 1. Medical Benefits . . . up to our limit of liability, to or for an insured person who sustains bodily injury caused by an accident arising out of the ownership, maintenance or use of a motor vehicle.” The policy defines the term “medical benefits” as follows: 80% of all reasonable expenses allowed by the No­Fault Law, subject to the applicable fee schedules and payment limitations, for medically necessary . . . ”(emphasis added).

The policy further provides: “5. We will only pay for medical benefits:

a. For services and care that are lawfully provided, supervised, ordered, or prescribed by a health care provider or entity who or which is properly licensed and acting within the scope of that license as authorized by the No­Fault Law, and any related regulations pertaining to physicians and medical providers; and

b. For medically necessary services, supplies, treatment and care that do not exceed the maximum reimbursement allowance as set forth in the applicable fee schedules and paymentlimitations, and other payment guidelines, in the No­Fault Law, and any schedules and limitations under federal or state law for medical expenses . . .

8. As authorized by the No Fault Law, we may use various sources of information to decide if any medical expense is reasonable and necessary and caused by an accident.

These sources include but are not limited to:

a. Exams by doctors we select, at our expense, as often as we reasonably request;

b. Review of medical records and test results by persons and services selected by us;

c. Computer programs and databases for the analysis of medical treatment and expenses; and

d. Published sources of medical expense information.”

(Emphasis added)

Defendant argues that the only “fee schedule” and “payment limitations” applicable under the No­Fault law is the 200% of Medicare Fee schedule, and it therefore unambiguously and clearly chose the 200% of Medicare Fee Schedule cap as its payment methodology.

Plaintiff argues that Defendant failed to clearly and unambiguously include this methodology in its policy, as required by Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a], because it also included language relating to additional methods and sources of information on how it would determine “reasonable” expenses. Thus, Plaintiff argues that an insured or a provider has no way of clearly determining which of the expressed competing methodologies Defendant is choosing. The parties agreed that if Plaintiff is correct, then Defendant would owe Plaintiff the additional amount that would equal 80% of the amount of Plaintiff's charge.

Kingsway requires that the choice of methodology be done “in a manner so that the insured patient and health care providers would be aware of it.” Id. The Court finds that Defendant's choice of confusing language referencing “other payment guidelines in the No­Fault Law” and “any schedules and limitations under federal or state law for medical expenses,” along with its later reference to “various sources of information” to determine if a medical expense is “reasonable,” results in a finding that Defendant did not make its election “in a manner so that the insured patient and health care providers would be aware of it.”

This Court agrees that by including the language of both methods for reimbursement under §§627.736(5)(a)1, Fla. Stat. (2008) and 627.736(5)(a)2, Fla. Stat. (2008) in its policy, the insurer has created an ambiguity, which must be resolved in favor of the insured. American Independent Ins. Co. vs. Gables Ins. Recovery, Inc., 19 Fla. L. Weekly Supp. 14b (11th Cir. Ct. 2011) (Appellate capacity). An insurance policy, or language therein, is ambiguous if it is susceptible to more than one meaning, and Mercury's policy is susceptible to more than one meaning. The fact that Mercury's policy is susceptible to more than one meaning is evident by the fact that various county court judges have interpreted the policy as ambiguous. Gables MRI (a/a/o Maria Quiroz) v. Mercury Ins. Co. of Fla., Case 12­15925 SP (1) (Miami­Dade County Court, May 30, 2013), Gonzalez­Meyer, J.; Gables Ins. Recovery, Inc. (a/a/o Mayelin Imas) v. Mercury Ins. Co. of Fla., Case No. 12­5758 SP 25 (01) (Miami­Dade County Court, May 15, 2013), Gonzalez­Meyer, J.; Tri­County Accident Clinic, LLC (a/a/o Jonathan Zaretsky) v. Mercury Ins. Co. of Fla., Case No. 12­8745 COCE (53) (Broward County Court, May 9, 2013), Lee, J.; Pro Imaging, Inc. (a/a/o Samuel James) v. Mercury Ins. Co. of Fla., Case No. 12­09035 COCE 51(Broward County Court, May 7, 2013, Dishowitz, J.

The Kingsway court recognized that, after the 2008 amendment to the PIP statute, an insurer has a right to choose between the two coverage methodologies: either paying the 80% of reasonable medical services or paying 80% of 200% of the Medicare Part B Schedule, i.e., the reimbursement limitations allowed by §627.736(5)(a)2.f. See Kingsway, 63 So. 3d at 67:

We agree with the trial court that these statutes are unambiguous and that their plain language allows an insurer to choose between the two dif erent payment calculation methodology options. Significantly, subsection 627.736(5)(a)2 provides that the insurer “may limit reimbursement” ­­ language that indicates this option choice is not mandatory; subsection 627.736(5)(a)5 states, “[i]f an insurer limits payment as authorized by subparagraph 2” ­­ language that anticipates an insurer will make a choice. Id. (emphasis added).

If an insurer chooses 80% of reasonable expenses methodology in Fla. Stat. 627.736(5)(a)1, and the 80% of 200% of Medicare Part B methodology, as Defendant has done in its policy, it creates confusion and ambiguity. The two payment methodologies are separate and distinct, and an insurer must choose one or the other. If an insurer opts to use the Medicare payment methodology, then that is what it is obligated to pay. If, instead, the insurer wants to argue that the reasonableness of a charge is something less than 200% of the Medicare Part B fee schedule, then it cannot simultaneously limit its exposure while leaving its insured unprotected from the full balance of the provider's bill.

Furthermore, by use of the phrase “subject to,” the Court notes that Defendant has not incorporated the optional provisions of the Medicare fee cap into the policy. See St. Augustine Pools, Inc. v. James M. Barker, Inc., 687 So.2d 957, 958 (Fla.5th DCA 1997) [22 Fla. L. Weekly D432a] (the words “subject to” in a contract are distinct from “incorporating” provisions of another document). Mercury has said nothing more than what is already true ­­ all PIP policies are “subject to” these provisions. However, Defendant must clearly and unambiguously take the next step to incorporate these optional provisions into the policy if it desires to use the alternative reimbursement limitations allowed by §627.736(5)(a)2.f. See also Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.2d 63, 68 (FLA.4th DCA 2011) [36 Fla. L. Weekly D1062a].

Therefore, it is hereby

ORDERED AND ADJUDGED that Defendant's Motion for Final Summary Judgment is DENIED and Plaintiff's Counter Motion for Summary Judgment is GRANTED. It is further ORDERED AND ADJUDGED that Plaintiff, STAND­UP MRI OF MIAMI is the prevailing party and shall recover from Defendant, MERCURY INDEMITY COMPANY OF FLORIDA, the sum of $37.88, representing statutory interest due on the overdue payment of personal injury protection benefits, for a total judgment of $638.17.

This judgment shall bear interest at the rate of 4.75% per annum from June 12, 2013 through the date of tender for which sum let execution issue.

The court hereby reserves jurisdiction to enter a judgment taxing reasonable attorney's fees and costs.

20 Fla. L. Weekly Supp. 1000c
Online Reference: FLWSUPP 2010QUIN


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