Orthopedic Specialists, as Assignee of Kelli Serridge v. Allstate Insurance Company

177 So. 3d 19, 2015 Fla. App. LEXIS 12467
CourtDistrict Court of Appeal of Florida
DecidedAugust 19, 2015
Docket4D14-287, 4D14-288, 4D14-289, 4D14-290, 4D14-291, 4D14-292, 4D14-293, 4D14-294, 4D14-295, 4D14-296, 4D14-297, 4D14-298, 4D14-299, 4D14-300, 4D14-301, 4D14-302, 4D14-303, 4D14-304, 4D14-305, 4D14-306, 4D14-307, 4D14-308, 4D14-309, 4D14-310, 4D14-311, 4D14-312, 4D14-313, 4D14-314, 4D14-315, 4D14-316, 4D14-317 and 4D14-318
StatusPublished
Cited by14 cases

This text of 177 So. 3d 19 (Orthopedic Specialists, as Assignee of Kelli Serridge v. Allstate Insurance Company) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Orthopedic Specialists, as Assignee of Kelli Serridge v. Allstate Insurance Company, 177 So. 3d 19, 2015 Fla. App. LEXIS 12467 (Fla. Ct. App. 2015).

Opinions

CIKLIN, C.J.

This appeal comprises thirty-two consolidated cases in which PIP claims were brought by medical services providers (“the Providers”) against the appellee, Allstate Insurance Company (“Allstate”), under no-fault insurance policies issued to their insureds. At issue is whether, as asserted by the Providers, the language in the Allstate policy is ambiguous as to Allstate’s election to reimburse the Providers pursuant to certain Medicare fee schedules provided for in section 627.736(5)(a)2., Florida Statutes (2009). The trial court agreed with Allstate and found that the policy language was, in fact, not ambiguous and certified the following question to this court:

Whether the Defendant’s PIP insurance policy language is legally sufficient to authorize [Allstate] to apply the [Medicare fee schedule] reimbursement limita[21]*21tions set forth in section 627.736(5)(a)2., Florida Statutes.

We answer that question in the negative, finding the policy language to be inherently unclear and reverse the summary judgment entered in favor of Allstate.

The only dispute between the parties concerns the meaning of a particular endorsement to the policy. The policy provision language chosen by Allstate resulted in the trial court’s decision to enter the underlying summary judgment for Allstate.

The policy provides the following in pertinent part with respect to PIP benefits:

Allstate will pay to or' on behalf of the injured person the following benefits:
1. Medical Expenses
Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services.

An endorsement to the policy provides the following:

Limits of Liability
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Any amounts payable under this coverage shall be subject to any and all limitations, authorized by section 627.736, [which would apply a Medicare fee schedule limitation] or any other provisions of the Florida Motor Vehicle No-Fault Law, as enacted, amended or otherwise continued in the law, including, but not limited to, all fee schedules.
(Emphasis added).

The Providers argue that the “shall be subject to” provision in the endorsement is ambiguous, as it is unclear whether Allstate has actually and in fact elected to limit its reimbursements to the Providers under the Medicare fee schedules as provided for in section 627.736(5)(a)2.-5., Florida Statutes (2009), or is simply announcing that it is reserving its right to elect to do so. They analogize the policy at issue here to the ones found lacking in Geico General Insurance Co. v. Virtual Imaging Services, Inc., 141 So.3d 147 (Fla.2013) (“Virtual Imaging ”), and Kingsway Amigo Insurance Co. v. Ocean Health, Inc., 63 So.3d 63 (Fla. 4th DCA 2011) (“Kings-way ”). In those cases, the courts found that the bare reference to the PIP statute was insufficient to put the insured and providers on notice that the insurer was, in fact, electing to employ the Medicare fee schedules. The Providers argue the language in the instant policy is similarly vague and only permissive in nature and merely incorporates the PIP statute. Our decision hinges on interpretation of contract of insurance language; thus our review is de novo. See Virtual Imaging, 141 So.3d at 152 (citations omitted).

Historical Context

Provisions of the PIP statute, section 627.736, Florida Statutes, are at the center of the instant controversy. The statute lays out the benefits that a personal injury protection policy must provide and the methods of calculating reimbursements thereunder. - Subsection 627.736(1)(a), Florida Statutes (2012), provides that “[e]very insurance policy ... shall provide personal injury protection” to specified individuals as follows: “Medical benefits— Eighty [80] percent of all reasonable expenses for medically necessary medical ... services.” As recognized by the Florida Supreme Court in Virtual Imaging, this provision requiring reimbursement of eighty percent of reasonable expenses for medically necessary services is “a basic coverage mandate” which is “the heart of the PIP statute’s coverage requirements.” 141 So.3d at 155. Section 627.736(5)(a)1„ [22]*22Florida Statutes (2009), recites factors to consider in determining reasonableness.

As explained in Virtual Imaging, the statute was amended in 2008 to provide an additional method of calculating reasonableness. Virtual Imaging, 141 So.3d at 156. Section 627.736(5)(a)2., Florida Statutes (2008), provides an alternative way in which “[t]he insurer may limit reimbursement to 80 percent” of a recited schedule of maximum charges, many of which are tied to Medicare fee schedules. For example, subsection 627.736(5)(a)2.f., Florida Statutes (2008), provides that insurers may limit reimbursement to “200 percent of the allowable amount under the participating physicians schedule of Medicare Part B.”1

In Virtual Imaging, the Florida Supreme Court explained that an insurer’s Medicare fee schedule election under section 627.736(5)(a)2. does not conflict with the basic “reasonable expenses” coverage mandate of section 627.736(1). Id. at 157. By electing to utilize the Medicare fee schedules, an insurer meets the mandate of providing “reasonable expenses” coverage. Id. The court further explained the effect of the 2008 amendments:

[T]he 2008 amendments provided an alternative, permissive way for an insurer to calculate reimbursements to satisfy the PIP statute’s reasonable medical expenses coverage mandate, but did not set forth the only methodology for doing so.
The 2008 fee schedule amendments used the word “may” to describe an insurer’s ability to limit reimbursements based on the Medicare fee schedules. See § 627.736(5)(a)2., Fla. Stat.... [I]f an insurer is not required to use the Medicare fee schedules as a method of calculating reimbursements, the insurer must have “recourse to some alternative means for determining a reimbursement amount” if it chooses not to use the Medicare fee schedules....
This alternative calculation mechanism is the same mechanism that was in place before the Legislature amended the PIP statute to incorporate the Medicare fee schedules: in the event of a dispute, a fact-finder must determine whether the amount billed was reasonable. The permissive language of the 2008 amendments, therefore, plainly demonstrates that there are two different methodologies for calculating reimbursements to satisfy the PIP statute’s reasonable medical expenses coverage mandate.
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Accordingly, we conclude that the 2008 amendments were clearly permissive and offered insurers a choice in dealing with their insureds as to whether to limit reimbursements based on the Medicare fee schedules or whether to continue to determine the reasonableness of provider charges for necessary medical services rendered to a PIP insured based on the factors enumerated in section 627.736(5)(a)l. In other words, we do not conclude that payment under section 627.736(5)(a)2.

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Cite This Page — Counsel Stack

Bluebook (online)
177 So. 3d 19, 2015 Fla. App. LEXIS 12467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orthopedic-specialists-as-assignee-of-kelli-serridge-v-allstate-insurance-fladistctapp-2015.