County Civil Court: CIVIL PROCEDURE – Summary Judgment – While trial court correctly found that amounts paid over safe harbor provisions were gratuitous, cause remanded for trial court to address each affirmative defense.  Ocean Harbor Casualty Ins. Co. v. Medical Specialists of Tampa Bay, et al., No. 2011-AP-9-WS (Fla. 6th Cir. App. Ct. January 22, 2013).

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

OCEAN HARBOR CASUALTY

INSURANCE COMPANY,     

                        Appellant,

                                                                                    UCN:  512011AP000009XXXXWS

v.                                                                                 Appeal No:  2011-AP-9-WS

L.T. No:         2010-CC-1145-WS

 

MEDICAL SPECIALISTS OF

TAMPA BAY, LLC d/b/a

GULF COAST INJURY CENTER, et al.,                                               

                        Appellees.                                                   

________________________________/

Appeal from Pasco County Court

County Judge Paul Firmani

 

Steven T. Sock, Esq. and

Scott W. Dutton, Esq.

for Appellant

 

Lawrence H. Liebling, Esq. and

Arthur Liebling, Esq.

for Appellee

 

 

 

ORDER AND OPINION

 

            Appellant seeks the reversal of the trial court’s order granting summary judgment based on two grounds.  Appellant first contends that its policy language did not require it to reimburse for MRI services at the fee schedule rates set forth in Florida Statute 627.736(5)(a)(2)(F).  We find that the trial court correctly found that what Appellant paid over the amounts calculated under the safe harbor provisions were gratuitous.  Appellant also argues that summary final judgment should not have been rendered because Appellee failed to refute each of the remaining affirmative defenses raised by Appellant.  While the trial court’s order is extensive, each affirmative defense is not specifically addressed.  Therefore, this court shall remand this cause as set forth below.

 

 

FACTUAL BACKGROUND

            On October 27, 2009, Alonzo Guzman-Giron was injured in a motor vehicle accident while a passenger in a vehicle.  Mr. Guzman sought treatment from Gulf Coast Injury Center.  An insurance policy issued by Ocean Harbor with personal injury protection coverage to the driver covered Mr. Guzman as an occupant of the vehicle.  Mr. Guzman assigned his rights and benefits under the insurance policy to Gulf Coast.

            Gulf Coast submitted bills totaling $2,139.95 for charges incurred for medical treatment provided to Guzman from November 2, 2009 through November 6, 2009.  Ocean Harbor processed the claim and paid 80% of the charges, which totaled $1,711.96.  Guzman also received services from Rose Radiology Centers on November 6, 2009.  Rose Radiology submitted bills in the amount of $4,400.00 and $5,428.36 for the November 6, 2009 services, which was received by Ocean Harbor on November 24, 2009.  On March 3, 2010, Ocean Harbor paid 80% of each of the Rose Radiology charges, which totaled $3,520.00 and $4,342.69 plus interest.  Subsequently, Gulf Coast submitted a bill for services rendered on November 16, 2009 in the amount of $1,094.00.  Ocean Harbor paid $241.91 in benefits, which was the remaining amount before the $10,000.00 in PIP benefits was exhausted.  Gulf Coast sent a pre-suit demand letter to Ocean Harbor on behalf of Mr. Guzman claiming an outstanding amount of $5,279.36.  Ocean Harbor responded to the demand letter stating that the PIP coverage had been exhausted. 

            On March 19, 2010, Gulf Coast filed a complaint for breach of contract against Ocean Harbor for Mr. Guzman’s unpaid medical benefits.  Ocean Harbor moved to dismiss the complaint on the grounds that the PIP benefits were previously exhausted before bills were submitted and the pre-suit demand letter demanded the exact amount billed without taking into account the 20% statutory reduction.  Gulf Coast filed an amended complaint which alleged a breach of contract claim as to Mr. Guzman and sought a declaratory judgment claiming that Gulf Coast was in doubt that Mr. Guzman’s policy authorized Ocean Harbor to pay 80% of Rose Radiology’s bills, which Ocean Harbor claimed resulted in benefits being exhausted and unavailable for payment of Gulf Coast’s remaining bills.  The amended complaint did not allege that Ocean Harbor acted in bad faith.

            In its answer and affirmative defenses to the amended complaint, Ocean Harbor alleged that benefits were exhausted, pursuant to the statutory and contractual requirements and thus the principles of accord and satisfaction applied.  Ocean Harbor moved for summary judgment on an exhaustion of benefits affirmative defense.  In support of its motion, Ocean Harbor filed an amended affidavit of its adjuster, which stated that all of the medical providers’ claims were paid in accordance with the Florida Motor Vehicle No-Fault Law and with the terms and conditions of its policy.  Ocean Harbor argued that the policy benefits were exhausted prior to receipt of Gulf Coast’s bills and demand letter.  The affidavit indicated that all payments were made in good faith and in accordance with the Florida Motor Vehicle No-Fault Law and attached a no-fault payment register. 

            Gulf Coast filed a cross motion for summary judgment for declaratory relief and damages based upon its claim of improper exhaustion of benefits by overpayments to Rose Radiology.  Gulf Coast’s motion alleged that Ocean Harbor timely received bills from Gulf Coast in the total sum of $5,279.36 for medical services rendered to Guzman from November 2, 2009 through November 30, 2009.  The motion alleged Ocean Harbor was required to pay 80% ($4,223.48) of Gulf Coast’s bills; however, Ocean Harbor paid only $2,587.16 to Gulf Coast, leaving a balance due of $1,636.32.

            Gulf Coast filed affidavits in support of its motion that the treatment was reasonable, related to the accident, and medically necessary.  The motion stated that:

Ocean Harbor did not pay the remainder due GCIC because Guzman’s PIP benefits of $10,000 were purportedly exhausted.  According to Ocean Harbor’s PIP log, benefits exhausted on or about December 30, 2009, leaving no benefits available for payment of the remainder of GCIC’s bills in the sum of $1,636.32.  Guzman’s PIP log reveals, however, that Ocean Harbor overpaid the following two billings from Rose Radiology Centers, Inc. (“Rose Radiology”), received on November 24, 2009:

A.            Date of service: 11/06/09, amount billed: $4,400.00; amount paid $3,520.00 (80%) and

B.            Date of service:  11/06/09, amount billed: $5,428.36; amount paid $4,342.69 (80%).

 

The motion further contended that Ocean Harbor overpaid, or gratuitously paid, Guzman’s benefits to Rose Radiology in violation of the insurance policy limitations on charges for MRI services, thereby “exhausting” Guzman’s benefits that should have been paid to Gulf Coast.

            The pertinent provisions of the policy provided by Ocean Harbor to Mr. Guzman were:

COVERAGE: PERSONAL INJURY PROTECTION

“We” will pay, in accordance with the Florida Motor Vehicle No-Fault Law, to or for the benefit of the injured person:

A.            80% of the “medical expenses,” and

B.            60% of the “work loss,” and

C.           “Replacement services expenses,” and

D.           Death benefits of $5,000.00 per individual;

 

In the same policy, under the heading “Limit of Liability” the following language appears:

Any amounts payable under this coverage with respect to the following medical expenses shall not exceed the applicable limitations for such expenses as prescribed by the Florida Motor Vehicle No-Fault Law:

 

1.            Cephalic thermograms;

2.            Extremity ultrasounds;

3.            Magnetic resonance imaging-services;

4.            Nerve conduction testing;

5.            Peripheral thermograms;

6.            Spinal ultrasounds;

7.            Surface electromyography; and

8.            Video fluoroscopy.

 

The crux of Gulf Coast’s argument was that the policy provided that any amounts payable for MRI services “shall not exceed the applicable limitations for such expenses as prescribed by the Florida Motor Vehicle No-Fault Law.”  Gulf Coast contended the term “applicable limitations” is reasonably construed to refer to Florida Statute 627.736(5)(a)(2)(F), which authorizes an insurer to limit reimbursement to 80% of 200% of the allowable amount under the participating physicians schedule of Medicare Part B, or if not reimbursable under Medicare Part B, to 80% of the maximum reimbursable allowance under the Workers’ Compensation Reimbursement Manual. 

            During the hearing on Gulf Coast’s Motion for Summary Judgment, Ocean Harbor contended that the language in the policy was not specific enough to inform the insured that it would pay for MRI services at 80% of the 200% of the Medicare Fee Schedule pursuant to Florida Statute 627.736(5)(a)(2)(F) and Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So. 3d 63 (Fla. 4th DCA 2011).  Ocean Harbor furthered that according to Kingsway Amigo, if the insurer wanted to take advantage of the permissive fee schedule, it should have clearly and unambiguously selected that payment methodology in a manner so that the insured patient and health care providers would be aware of it.  At the end of the hearing, Judge Firmani reserved ruling. 

            The trial court ultimately entered an order granting Gulf Coast’s motion for summary judgment finding that the policy language in this case was in opposition to that in Kingsway Amigo and therefore limits the payments to medical providers providing MRI services to 80% of 200% of the Medicare Part B fee schedule.  The trial court also found that the policy precluded Ocean Harbor from paying 80% of the amount billed by Rose Radiology for MRI services and that Ocean Harbor overpaid or gratuitously paid the sum of $3,201.69 from Guzman’s PIP benefits to Rose Radiology thereby exhausting the account without paying the $1,636.32 balance due to Gulf Coast.  As such, the amount of $3,201.69 in benefits should remain in Guzman’s PIP account.  The final judgment in favor of Gulf Coast awarded $1,636.32 in PIP benefits above the contractual amount of $10,000.00.  Ocean Harbor’s motion for rehearing was denied.  Appellant filed a timely notice of appeal.

 

                    

LAW AND ANALYSIS

Ocean Harbor argues that the order granting summary judgment should be reversed.  Specifically, Ocean Harbor contends that the policy language did not require the insurer to reimburse for MRI services at the fee schedule rates set forth in Florida Statute 627.736(5)(a)(2)(F).  And even if Ocean Harbor mistakenly used an incorrect payment methodology, payment of the MRI services at 80% of the charges was not a gratuitous overpayment, which in turn did not entitle Gulf Coast to payment of medical benefits after the $10,000 in medical benefits were exhausted.  The question this court must address is whether Ocean Harbor voluntarily paid Rose Radiology more than it was required to pay under the insurance policy.  If so, Ocean Harbor will, in effect, be held to only have paid what it properly should have paid under the terms of the contract and will get no credit for what it paid over and above the contractual amount.  The improper payments would be considered gratuitous or voluntary.  If payment of the amount that it should have paid under the contract leaves an unpaid balance of PIP benefits, then Ocean Harbor would be required to pay that amount to other medical providers, even if the total amount paid exceeded the $10,000 PIP limit.    

The trial court ruled that Ocean Harbor’s PIP policy required it to pay 80% of the insured’s medical bills generally, but contained an additional enforceable provision specifically limiting MRI bills to 200% of Medicare.  The trial court based its final summary on the legal conclusion that the language in Ocean Harbor’s policy was inapposite to that in Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So. 3d 63 (Fla. 4th DCA 2011) and therefore limits the payments for MRI services at the statutory fee schedule rate of 80% of 200% of Medicare Part B found in Florida Statute 627.736(5)(a)(2)(F).  As such, the trial court reasoned that Ocean Harbor overpaid or gratuitously overpaid sums to Rose Radiology thereby exhausting the PIP benefits without paying the balance due to Gulf Coast.  In this case, we find that Ocean Harbor clearly elected in its policy to limit payment for MRI’s under the safe harbor provision of Florida Statute 627.736(5)(a)(2).  Ocean Harbor’s policy states that it will pay 80% of Mr. Guzman’s reasonable medical expenses, but MRI expenses “shall not exceed the applicable limitations for such expenses as prescribed in by the Florida Motor Vehicle Law.”  This differs from the facts of Kingsway Amigo, upon which Ocean Harbor relies.  In Kingsway Amigo, the policy promised to pay 80% of medical expenses; however, it contained no additional language limiting specific bills.  Unlike Ocean Harbor’s policy, there was no policy provision that specifically elected to adopt the safe harbor provision and automatically comply with the statutory requirements.  Since Kingsway Amigo did not adopt the permissive safe harbor provision, it had to pay under the provision stated in its policy, which is not the case here.  This is made even clearer in Geico Indem. Co. v. Virtual Imaging Services, Inc., 79 So. 3d 55 (Fla. 3d DCA 2011).  The holding in Geico is very clear that an insurer’s policy must specifically elect to limit its PIP payouts under the safe harbor provisions of Florida Statute 627.736(5)(a)(2) or it will be bound by the more general provision requiring payment of 80% of the reasonable and necessary bills.  In this case, anything Ocean Harbor paid over the amounts calculated under the safe harbor provisions was voluntary or gratuitous and, to the extent that they exceeded the safe harbor provisions, Ocean Harbor should not be given credit for them. 

Ocean Harbor also argues that summary final judgment should not have been rendered where Gulf Coast failed to refute each of the remaining affirmative defenses raised by Ocean Harbor, as required by Hospital Correspondence Corp. v. McRae, 682 So. 2d 1177 (Fla. 5th DCA 1996) and Fasano v. Hicks, 667 So. 2d 1033 (Fla. 2d DCA 1996).  In this case, five affirmative defenses were raised.  Despite the trial court’s exhaustive and erudite order, the trial court did not make specific rulings on each affirmative defense in the judgment.  As such, this court shall remand this cause to the trial court so that each affirmative defense may be addressed individually. 

It is therefore,

 

            ORDERED that the trial court’s order is hereby AFFIRMED in part and REMANDED in accordance with this opinion.

 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 22nd day of January 2013.

 

Original order entered on January 22, 2013 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.

 

 

Copies to:

Steven T. Sock, Esq. and Scott W. Dutton, Esq.

Lawrence H. Liebling, Esq. and Arthur Liebling, Esq.