Tag Archives: PIP statute

1st DCA Upholds Allstate Use of Medical Fee Schedules

In an opinion filed March 18, 2015, Florida’s First District Court of Appeal held that language in an Allstate Insurance Co. policy gave sufficient notice to an assignee of its election to use Medicare fee schedules to limit benefit reimbursements under a PIP policy. Stand-Up MRI of Tallahassee, an assignee of 14 named insureds, sued Allstate in county court, contending that Allstate’s alleged failure to give adequate notice was contrary to the Florida Supreme Court’s decision in Geico v. Virtual Imaging. The trial court agreed with Stand-Up MRI and certified a question of great public importance to the Appellate Court.

In Virtual Imaging, as here, an MRI provider had supplied services and then disputed the insurer’s authority to limit reimbursements under Medicare fee schedules. Pursuant to the Florida PIP statute, automobile insurers are required to provide PIP coverage for 80 percent of all “reasonable expenses” for medically necessary services.

The dispute here centers on whether Allstate’s policy language provided adequate notice of its election to limit reimbursements via the Medicare fee schedules or if, as Stand-Up MRI contends, the policy fails because it is ambiguous. Allstate points to the following language in the policy as having satisfied the Virtual Imaging notice requirement:

In accordance with the Florida Motor Vehicle No-Fault Law, [Allstate] will pay to or on behalf of the injured person the following benefits. . . .

Medical Expenses

Eighty percent of reasonable expenses for medically necessary … services. …

Any amounts payable under this coverage shall be subject to any and all limitations, authorized by section 627.736, 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.

The appellate court agreed with Allstate, concluding that the policy gives sufficient notice of its election to limit reimbursements by use of the fee schedules. In making its decision, the court pointed to language in the policy stating that reimbursements “shall” be subject to the limitations of §627.736, including “all fee schedules.”

Section 627.736(5)(a) 2 refers to Medicare fee schedule-based limitations and provides that insurers “may limit reimbursement to 80 percent of the … schedule of maximum charges.” Thus, concluded the court, the notice requirement was satisfied by Allstate’s language limiting “any amounts payable” to the fee schedule-based limitations found in the statute.

Furthermore, the court also distinguished the language in Allstate’s policy from that found deficient in Virtual Imaging. There, the Florida Supreme Court concluded that Geico’s policy failed to “indicate in any way” that it intended to limit its reimbursement amounts using the fee schedules. Here, Allstate’s policy expressly limits reimbursements by “all fee schedules” in the statute, satisfying the Virtual Imaging notice requirement.

Stand-Up MRI also contended that Allstate’s use of the phrase “subject to . . . all fee schedules” fails to provide sufficient notice that reimbursements will always be limited by the fee schedules, arguing that “subject to” means only that Allstate had the option to limit reimbursements per the Medicare fee schedule , not that it would so limit reimbursements. The court, however, found no such ambiguity, stating that the language of the policy makes reimbursements subordinate to the fee schedule in “rather unmistakable terms.”

In sum, the court concluded that Allstate’s policy language gave legally sufficient notice to its insureds of its election to use the Medicare fee schedules as required by Virtual Imaging. The trial court’s decision was reversed and the case remanded for further proceedings.

The cases cited are listed below for reference.

Allstate Fire and Casualty Ins. v. Stand-Up MRI of Tallahassee, Case No. 1D14-1213, et al., 1st DCA Fla. (March 18, 2015).

Geico Gen. Ins. Co. v. Virtual Imaging Servs. Inc., 141 So. 3d 147 (Fla. 2013).

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Filed under Fla. Stat. 627.736 (2012), The Statutory "Fee Schedules"

The 11th Judicial Circuit Court Issues Key Ruling in Health Care Clinic Licensure Case

On March 10, 2015, the Eleventh Judicial Circuit in and for Miami-Dade County issued a ruling in favor of Imperial Fire & Casualty Insurance in a mandatory licensing (House Bill 119) case. The Court found that the charges submitted for Personal Injury Protection (PIP) benefits to Imperial Fire & Casualty, to be unlawful and thus, noncompensable pursuant to Florida’s Motor Vehicle No-Fault Law.

Imperial Fire & Casualty issued a policy of automobile insurance to the Insured under which the Defendant, Magic Hands Solutions Inc. sought payment. Magic Hands Solutions operated as a medical clinic and allegedly rendered medical treatment to the Insured who was injured in an automobile accident. Subsequently, Magic Hands Solutions submitted charges for payment of PIP benefits to Imperial Fire & Casualty. Magic Hands Solutions was advised that the claim submitted for PIP benefits was not payable because the clinic was not properly licensed pursuant to Section 627.736, Florida Statutes (2013).

In 2012, the Legislature required mandatory licensing for all clinics holding an exempt status, whether by issuance of Certificate of Exemption or self-determined, in order for clinics to receive reimbursement pursuant to the “PIP Statute.” Hence, a clinic must be licensed under Part X, Chapter 400 to receive reimbursement for PIP benefits, unless it qualifies for an exception listed in Section 627.736(5)(h).

The Court found that the Magic Hands Solutions being wholly owned by a license massage therapist does not qualify for any of the exceptions delineated in §627.736(5)(h)(1)-(6) and was required to obtain a Health Care Clinic license as a condition precedent to receiving reimbursement of PIP benefits.

As a result of Magic Hands Solutions’ failure to obtain a Health Care Clinic License, the Court found that the charges submitted were unlawful and thus, noncompensable pursuant to Florida’s Motor Vehicle No-Fault Law and that Imperial Fire & Casualty.

Imperial Fire & Casualty Insurance Company vs. Magic Hands Solution Inc., Case No. 2014-2211 CC 24 (01) (Fla. 11th Circuit March 10, 2015).

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Filed under Fla. Stat. 627.736 (2008)

11th Circuit Appellate Division Rules Insurer’s Adjuster Notes not Discoverable

On January 5, 2015, the Appellate Division of the Eleventh Judicial Circuit in and for Miami-Dade County issued a ruling reversing the lower court’s order compelling production of the insurer’s pre-litigation documents.  The court held that such documents are not discoverable in a first-party coverage lawsuit between the insured and the insurer.

In 2011, respondent Yesenia Romero sued State Farm for PIP benefits, alleging State Farm breached the insurance contract and violated the Florida PIP statute in not paying for claims resulting from a 2009 motor vehicle accident. Romero filed a request for State Farm’s “entire claims file concerning the case,” including all of the adjuster’s notes made prior to the pre-suit demand letter.  State Farm objected to the production, asserting work-product privilege.

A hearing on the issue was held in the trial court.  Following an in camera inspection of the adjuster’s notes, the judge determined that they were not protected under the work-product doctrine because they were not prepared in anticipation of litigation.  The court ordered State Farm to produce all the adjuster’s notes.  State Farm sought to have the appellate division quash the order.

In its analysis, the appellate division noted that all three levels of Florida’s judiciary, including its own court, have said that an insurance company’s claims file documents are not discoverable in a first-party coverage and damages lawsuit between an insurer and the insured. The court cited a Third District case, Castle Key v. Benitez, in concluding that “where the insured is not seeking a bad faith claim, but rather seeks relief for breach of contract,” the insurer’s claims file documents are not discoverable.

In this case, where the plaintiff was alleging breach of contract and not bad faith, the appellate division determined that the trial court erred in ordering State Farm to produce the documents and therefore quashed the trials court’s order.

State Farm v. Yesenia Romero, Case No. 13-48 AP (Fla. 11th Circuit January 5, 2015).

Castle Key Ins. Co. v. Benitez, 124 So. 3d 379 (Fla. 3d DCA 2013).

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Filed under Case Law, Fla. Stat. 627.736 (2012)

Eleventh Circuit Dismisses PIP Case Involving EMC and Massage Therapy

A class action suit filed by plaintiff Accumed Chiropractic against Progressive Select Insurance was dismissed on July 31, 2014 by Circuit Court Judge Antonio Arzola. Judge Arzola concluded that the action was inappropriate for class action treatment.

The suit was brought on behalf of plaintiff itself and two putative classes. The first class was to be anyone who was denied payment by Progressive under PIP or MedPay insurance coverage where Progressive’s denial was based on an assertion that an Emergency Medical Condition for the insured was not established.

The second class was to be defined as anyone whose PIP or MedPay claim was denied because the health care service was for massage therapy or acupuncture. Plaintiff sought both declaratory relief and damages for breach of contract.

Plaintiff stipulated at the hearing that it did not have standing to sue for MedPay benefits. As for the PIP claims, Judge Arzola found that the “necessary and individualized questions associated with the underlying PIP claims of the class will predominate in this Action.” As a matter of law, therefore, plaintiff’s case could not proceed as a class action, and the complaint was dismissed without prejudice.

The case is Accumed Chiropractic & Wellness Center, Inc. v. Progressive Select Insurance Company, Case No. 13-CA-029396 (Fla. 11th Cir. Ct., July 31, 2014). Click on the link to view the court order.

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Filed under Case Law

Defendant’s Motion to Dismiss Granted with Prejudice in PIP Benefits Case Involving Challenge to “Emergency Medical Condition” (EMC) Provision

In a second ruling within one week involving Florida’s amended PIP law, the U.S. District Court for the Southern District of Florida dismissed a case challenging reimbursement under the amended statute’s “emergency medical condition” or “EMC” provision. See our earlier post titled Court Grants Defendant’s Motion to Dismiss in Robbins v. Garrison P & C.

Sendy Enivert sued her auto insurance company, Progressive Select, alleging breach of contract for failing to pay her PIP benefits to a limit of $10,000. Enivert’s claim involved the newly added provision to Florida’s PIP law which limits PIP benefits depending on whether a claimant has suffered an emergency medical condition.

Plaintiff Enivert interpreted this language to mean that an insured is limited to $2,500 only if a medical provider determines that there is no emergency medical condition. She argued that because, in her case, no medical provider ever made such a determination, she was entitled to the full $10,000. In other words, because no medical provider determined that she did not have an emergency medical condition, she was entitled to full benefits.

Defendant Progressive read the statute to mean the opposite, i.e., that a medical provider must affirmatively determine that an emergency medical condition does exist in order for the insured to be eligible for reimbursement of the full amount.

The court agreed with Progressive, concluding that the PIP statute clearly indicates that a determination that a claimant has suffered an emergency medical condition is required in order to receive benefits in excess of the $2,500 limit. Since a medical provider did not determine that Enivert had an emergency medical condition, she was not entitled to the full $10,000 in benefits.

The court also looked to the legislative intent behind the PIP statute. It concluded that the clear legislative intent was to decrease PIP fraud by placing more stringent requirements in order to receive the maximum amount of benefits.

Based on the above, the court granted Progressive’s motion to dismiss Enivert’s case.

The case is Sendy Enivert v. Progressive Select Insurance Co., Civil Action No. 14-CV-80279-Ryskamp/Hopkins (S.D. Fla. July 23, 2014). Click on the link to read the court ruling.

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Filed under Case Law, Fla. Stat. 627.736 (2012)

Court Grants Defendant’s Motion to Dismiss in Robbins v. Garrison P & C

On July 18, the U.S. District Court for the Southern District of Florida dismissed a case in which the plaintiff challenged reimbursement under the amended statute’s “emergency medical condition” (“EMC”) provision.

Glenaan Robbins sued her auto insurer, Garrison P&C Insurance Co., alleging that Garrison violated the 2013 provision of Florida’s PIP law that limits PIP benefits depending on a determination of whether or not the claimant suffered an emergency medical condition.

Robbins sustained injuries in an April 2013 car accident. She was treated for her injuries and alleged that ultimately “no determination was made that she did not have an emergency medical condition.” When Robbins submitted her claim to her insurer Garrison, Garrison limited her reimbursement to $2,500.

FL PIP law requires that an insurance company must reimburse its injured insured up to $10,000 if certain medical providers determine that the injured person had an emergency medical condition. Reimbursement is limited to $2,500 if a provider determines that the injured person did not have an emergency medical condition.

In this case, no determination was made either way that an emergency medical condition did or did not exist. Plaintiff Robbins argued that where there has been no such determination, insurance companies must reimburse medical expenses up to $10,000. In other words, unless a determination of no emergency medical condition is made, the plaintiff is entitled to the higher amount.

Reviewing the language of the statute and legislative intent, however, the court concluded that Robbins’ argument had no merit. Rather, where there has been no determination of an emergency medical condition made, PIP medical benefits are not to exceed $2,500. Thus, contrary to Robbins’ argument, the conclusion of the court was that unless there is a determination of an emergency condition, the reimbursement is limited to $2,500.

The court therefore held that Robbins had failed to allege a statutory claim and her case was dismissed.

The case is Glenaan Robbins v. Garrison Property & Casualty Insurance Co., Civil Action No. 13-81259-Civ-Scola (S.D. Fla. July 18, 2014). Click on the link to read the court ruling.

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Filed under Case Law, Fla. Stat. 627.736 (2012)

Motion for Rehearing of Florida PIP Injunction is Denied

On November 26, 2013, the First District Court of Appeals dismissed a motion for rehearing on its October ruling to reverse an injunction placed on reforms to Florida’s PIP system. The reforms, contained within HB 119 and signed into law by Gov. Rick Scott in 2012, ban PIP payments to acupuncturists and massage therapists. The reforms also require that claimants seek treatment from a physician or hospital within 14 days of an accident.

A group of acupuncturists, massage therapists, and chiropractors filed for an injunction, which was ultimately granted. The Court of Appeals ruled in October that the injunction should be reversed. It upheld this decision by denying a motion for rehearing on its ruling.

We wrote in September about reservations expressed by a three-judge panel from the 1st District Court of Appeals regarding the challenge made by acupuncturists, massage therapists and chiropractors to key parts of Florida’s 2012 landmark reform of the personal-injury protection (PIP) auto insurance law, in a blog post titled “Judges Question Challenges Brought to Florida’s No Fault Insurance Law.”

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Filed under Case Law, Fla. Stat. 627.736 (2012)