Abbey Adams Logo

Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Bruce D. Burk
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Steven A. Ochsner
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

March 12, 2015 by admin

Insurance Coverage – PIP – Medical Expenses – Ambiguity in Policy

Online Reference: FLWSUPP 2205INFI

Insurance — Personal injury protection — Coverage — Medical expenses — Policy which provided that insurer would pay 80% of medical expenses and, on separate page, that it would pay 200% of Medicare Part B schedule was ambiguous and must be interpreted in favor of insured — Trial court properly entered final summary judgment in favor of provider, but it is unclear whether amount awarded was properly calculated — Remand for recalculation of damages reflecting endorsement provision providing greater coverage

INFINITY AUTOMOBILE INSURANCE COMPANY, Appellant-Defendant, v. SUNSHINE REHAB & MEDICAL, INC., a/a/o Osvaldo Borras, Appellee-Plaintiff. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 12-179 AP. L.T. Case No. 11-200 SP 21. January 5, 2015. On appeal from a final judgment rendered by the County Court for Miami-Dade County. Honorable Jacqueline Schwartz. Counsel: Suzanne Labrit, Shutts & Bowen, LLP, Tampa; Lewis F. Collins, Jr., Anthony J. Russo, and Ezequiel Lugo, Butler Pappas Weihmuller Katz Craig, LLP, Tampa, for Appellant-Defendant. Ryan Peterson and Richard Patino, Patino Law Firm, Hialeah, for Appellee-Plaintiff.

[Note: Motion for rehearing has been filed.] 

(Before KORVICK, JOSE RODRIGUEZ, and LOBREE, JJ.) 

(PER CURIAM.) Infinity Automobile Insurance Company (“insurance company” or “insurer”) challenges a final summary judgment rendered in Sunshine Rehab Medical, Inc.’s (“provider”) favor. Section 26.012(1), Florida Statutes, authorizes us to review this appeal. We review a final summary judgment resolving a pure legal question de novo. Kingsway Amigo Ins. Co. v. Ocean Health Inc., 63 So. 3d 63, 66 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a].  According to the provider, the policy informs that the insurer will limit payment to the “schedule of maximum charges, rather than 80% of the schedule of maximum charges.” The provider advances that nothing in the policy permits the 20% reduction; thus, the insurer “must pay 100% of the schedule of maximum charges, rather than 80%.”The statutory provision at issue states:

With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to . . . various federal and state medical fee schedules applicable to automobile and other insurance coverages . . . 2. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges: . . . f. For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B.

§ 627.736(5)(a)2.f., Fla. Stat. (2010) (emphasis added).1 We read section 627.736(5)(a)2.f. as authorizing an insurer to limit reimbursement to eighty percent (80%) of two-hundred (200%) percent of the amount allowed pursuant to the Medicare Part B schedule. Regarding incorporating subsection (5)(a)2.f. into the policy, the insurer must specifically elect the payment method in the policy. Geico Indem. Co. v. Virtual Imaging Servs., 79 So. 3d 55, 56 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a]; Kingsway, 63 So. 3d at 64.

The Insurance Policy

 
This insurer amended its policy by replacing the personal injury protection provision with an endorsement (R. 321). An endorsement to a policy limits or amends the policy’s general provisions. 43 Am. Jur. 2d Insurance § 304. Florida courts apply an endorsement’s plain meaning. Harris v. Cotton States Mut. Ins. Co., 821 So. 2d 1211, 1213 (Fla. 1st DCA 2002) [27 Fla. L. Weekly D1681c]. We read each policy as a whole, endeavoring to give every provision its full meaning and operative effect. Riveroll v. Winterthur Intern. Ltd., 787 So. 2d 891, 892 (Fla. 3d DCA 2001) [26 Fla. L. Weekly D1067a]. However, where “a contract is susceptible to two different interpretations, each one of which is reasonably inferred from” the contract terms, “the agreement is ambiguous.” Commercial Capital Res., LLC v. Giovannetti, 955 So. 2d 1151, 1153 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D814a] (emphasis added).  Here, the insurance company separated the terms “80% of medical expenses” and “200 percent” of the Medicare Part B schedule by a page in the endorsement. Because the insurer separated the 80% modifier from the 200% of Medicare Part B modifier on different pages, we reasonably infer that this insurer intends to cover (1) 80% of all medical expenses or (2) 200% of the Medicare Part B fee schedule (R. 324-325). We conclude that this policy constitutes an ambiguous contract. When language in an insurance policy is ambiguous, a court will resolve the ambiguity in the insured’s favor by adopting the reasonable interpretation that provides coverage as opposed to the interpretation limiting coverage. State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So. 3d 566, 570 (Fla. 2011) [36 Fla. L. Weekly S469a]. See Am. Indep. Ins. Co. v. Gables Ins. Recovery, Inc., a/a/o Lima, 19 Fla. L. Weekly Supp. 14b (Fla. 11th Cir. Ct. Oct. 12, 2011). Because this endorsement discusses two (2) different payment methods, we rely upon Menendez as requiring this insurer to pay the higher coverage amount.  Here, the county court did not clarify whether the $1,321.07 constitutes payment pursuant to 80% of medical expenses or 80% of 200% of the Medicare Part B schedule (R. 387). Accordingly, we affirm the final summary judgment but remand for the trial court to amend the final summary judgment to include re-calculated damages reflecting the endorsement provision providing greater coverage. See Menendez, 70 So. 3d at 570; Lima, 19 Fla. L. Weekly Supp. 14b.  Our decision to render appellate judgment against the insurer satisfies section 627.428(1)’s criteria. Accordingly, we grant the provider’s motion for section 627.428(1) appellate attorney’s fees. AFFIRMED, REMANDED WITH DIRECTIONS, and ATTORNEY’S FEES GRANTED. __________________1The insurance declaration indicates coverage effective February 11, 2010 through August 11, 2010 (R. 321). We apply the version of section 627.736(5)(a)2.f. in effect on February 11, 2010, the policy’s effective date. United Auto. Ins. Co v. Tejada, 18 Fla. L. Weekly Supp. 353a (Fla. 11th Cir. Ct. Feb. 8, 2011).

* * *

Filed Under: Articles

Primary Sidebar

Recent Posts

  • Insurance — Homeowners — Attorney’s fees — Trial court erred in awarding attorney’s fees and costs in favor of insureds where filing of lawsuit was not a necessary catalyst to resolve dispute — Where insurer admitted coverage for damage to interior of home, but denied coverage for damage to roof, the dispute over cause of loss to roof was an amount of loss issue for appraisers, not a coverage issue for court — Where insurer demanded appraisal prior to filing of lawsuit by insured, and indicated that it would repair any damage awarded in appraisal, the filing of lawsuit was not a necessary catalyst to resolve dispute over roof damage
  • Insurance — Commercial liability — Exclusions — Assault and battery — Insurer had no duty to defend insured in action alleging injury arising out of assault and battery on insured’s premises where policy contained endorsement excluding coverage for injury arising out of or resulting from assault or battery
  • Insurance — Homeowners — Appraisal — Assignees — No error in finding that appraisal provision of insured’s homeowner’s policy applied to insured’s assignee and granting insurer’s motion to compel appraisal — Policy did not classify appraisal as a duty of the insured — Assignee received an assignment that entitled it to receipt of payment from insurer, and concomitant with that right was its duty to comply with the conditions of the contract that afforded it payment
  • Insurance — Homeowners — Water damage — Post-loss obligations — Sworn proof of loss — Trial court erred in entering summary judgment in favor of insurer after finding that insureds had forfeited their policy coverage for failure to provide a sworn proof of loss — Policy did not eliminate duty of insured to provide sworn proof of loss where insurer opted to repair — However, because insureds complied to some extent with policy requirements, and policy required insurer to prove it was prejudiced by insureds’ failure to provide sworn proof of loss, material issues of fact remain
  • Insurance — Homeowners — Watercraft exclusion — No error in determining that watercraft exclusion in the insureds’ homeowners’ insurance policy precluded coverage for injuries sustained by a third party in a boating accident that occurred when the insured son, who had permission to use the boat from the insured father, allowed another third party to pilot the boat while intoxicated — The only applicable exception to the watercraft exclusion unambiguously states that the watercraft exclusion does not apply if the outboard engine or motor is not owned by an insured, and the boat and engine in this case were owned by the insured father — Severability clause, which provides that the policy “applies separately to each insured,” did not render watercraft exclusion ambiguous — Exceptions to the watercraft exclusion are not dependent on the insured who seeks coverage, but on the nature of the watercraft at issue

Blog Archives

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2021 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982