By now most of the PIP industry is familiar with the Florida Supreme Court’s ruling in Geico v. Virtual Imaging, 2013 WL 333385 (Fla. 2013). Last July, our state’s highest court held among other things, that insurers must unambiguously elect the Medicare fee schedule payment methodology in their policy language if that is how the insurer intends to reimburse providers under PIP. What the Court did not answer was what language is compliant to meet the unambiguous standard? Answer…who knows?
In the past year since Virtual Imaging was decided, a handful of county court decisions have shed some light on non-compliant language. However, the same language was also held to be compliant, which further complicates the landscape. Consider the following case examples:
Case 1 – 1st Open MRI v. Allstate, 21 Fla. L. Weekly Supp. 350b (Miami-Dade Cty Crt. Dec. 27, 2013)
Allstate’s PIP policy was written that “any amounts payable” under PIP “shall be subject to any and limitations authorized by Fla. Stat. § 627.736, or any other provisions of the Florida Motor Vehicle No-Fault law” and “including but not limited to, all fee schedules.” The Court held the policy unambiguously elected the limitations of the Medicare fee schedules. Consequently, the medical provider was without a meritorious argument that the insurer is required to incorporate statutory language or specific fee schedules into the policy to effectuate a proper election. The Court found no ambiguity nor any statutory mandate that requires specific language to effectuate an election to apply fee schedule limitations.
Case 2 – Central Florida Medical & Chiropractic Center, Inc. v. Allstate, 21 Fla. L. Weekly Supp. 336a (Volusia Cty Crt. Nov. 7, 2013).
Allstate’s PIP policy was written that “any amounts payable” under PIP “shall be subject to any and limitations authorized by Fla. Stat. § 627.736, or any other provisions of the Florida Motor Vehicle No-Fault law” and “including but not limited to, all fee schedules.” Here, the Judge held that policy did not clearly and unambiguously elect to limit reimbursement pursuant to the Medicare fee schedules. The Court reasoned if Defendant’s intent was to limit liability to something other than 80% of reasonable medical expenses, it must do so clearly and unambiguously, requiring something more than simply referencing any and all limitations, in order to satisfy the mandate set forth in Geico v. Virtual Imaging.
We have two similar policies with the same language, yet two very different decisions. For PIP attorneys, it allows for creative argument, persuasive writing, and a chance to get a published opinion in your favor. For insureds and medical providers, it allows for confusion and uncertainty.
However, in reviewing enough policies over the past year, I can safely say that the following insurers have language that fits into the confusion category in the two case studies above: Mercury, The Hartford, some Allstate policies, and Assurance America. Most of your main-line insurers like State Farm, Geico, USAA, Progressive, Allstate, Liberty Mutual, and even Direct General, Windhaven (yes they do have a written policy), and Gainsco all have policies that essentially copy and paste the statutory language.
For the uncertain policies, the safest bet is always to go with case-law from your county. If none exists, then look to case-law from other counties within your appellate district. For example, we primarily practice in Pinellas County and as of this writing, no county court decisions are directly on-point, however I would strongly argue a favorable case from our sister courts in Hillsborough or Manatee as they comprise part of the Second Appellate District, before I would argue a favorable opinion out of South Florida.
The appellate division of the 6th Judicial Circuit, which comprises Pinellas and Pasco counties, has ruled that the language in the Allstate policy does constitute a clear and unambiguous election of the permissive fee schedules. Allstate Fire and Cas. Ins. Co., v. Orthopedic Specialists, Case No.: 522013AP000003XXXXCI (6th Jud. Cir. App Div. Dec. 10, 2013).
While the Supreme Court did not specifically state what policy language is compliant with its ruling, the phrase “must unambiguously elect” is a powerful tool. Undoubtedly as policies continue to have questionable language, litigation will continue in the wake of Geico v. Virtual Imaging until an appellate court takes up the issue of what effectuates a proper election of the Medicare fee schedules.
If you are a Medical Clinic, Chiropractic & Wellness Center or an Outpatient Imaging Facility, contact Sibley Dolman Gipe Accident Injury Lawyers, PA for clarification in any PIP billing matter. We actively represent clients across the entire Tampa Bay Area and are able and willing to represent providers in any Florida county. Call us at 727-451-6900 to discuss billing fee schedules and policy language ambiguity.
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800 North Belcher Road
Clearwater, FL 33765