42
Fla. L. Weekly S176aTop of Form

Insurance
— Personal injury protection — Medical expenses — Reasonable and necessary
treatment — Discovery — Facts about injured person — Scope of permissible
discovery under section 627.736(6)(c) is limited to the production of documents
described in subsection (6)(b) — Accordingly, discovery is limited to
production of “a written report of the history, condition, treatment, dates,
and costs of such treatment of the injured person and why items identified by
insurer were reasonable in amount and medically necessary, together with a
sworn statement,” as well as production, inspection and copying of “records
regarding such history, condition, treatment, dates, and costs of treatment” —
Subsection (6) provides limited pre-litigation discovery into specified
information about treatment and charges for treatment provided to injured
party, and discovery tools found in rules of civil procedure are not triggered
until litigation over reasonableness of those charges has ensued — Nothing in
subsections (6)(b) or (c) contemplates requiring PIP provider to submit any of
its representatives to deposition — Trial court erred by ordering provider to
make a designated corporate representative available for deposition

STATE
FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, vs. SHANDS JACKSONVILLE
MEDICAL CENTER, INC., Respondent. Supreme Court of Florida. Case No. SC15-1257.
February 16, 2017. Application for Review of the Decision of the District Court
of Appeal — Certified Direct Conflict of Decisions. First District — Case No.
1D14-2001 (Duval County). Counsel: Anthony John Russo and Alan Jeffrey Nisberg
of Butler Weihmuller Katz Craig LLP, Tampa, for Petitioner. John Andrew Tucker,
IV of Foley & Lardner LLP, Jacksonville; and James Andrew McKee and
Benjamin James Grossman of Foley & Lardner LLP, Tallahassee, for
Respondent.

(LABARGA,
C.J.) This case is before the Court for review of the decision of the First
District Court of Appeal in Shands Jacksonville Medical Center, Inc. v.
State Farm Mutual Automobile Insurance Co., 40 Fla. L. Weekly D1447 (Fla.
1st DCA June 22, 2015), certifying conflict with the decision of the Fourth
District Court of Appeal in Kaminester v. State Farm Mutual Automobile
Insurance Co., 775 So. 2d 981 (Fla. 4th DCA 2000). We have jurisdiction. See
art. V, § 3(b)(4), Fla. Const.

The
certified conflict issue in this case concerns the extent of permissible
discovery under section 627.736(6)(c), Florida Statutes (2015), and requires us
to examine additional provisions of section 627.736, the statute that governs
personal injury protection (PIP) benefits. Relevant to this case, section
627.736(5) addresses the reasonableness of charges for treatment, providing:

(5) CHARGES FOR TREATMENT OF
INJURED PERSONS. —

(a) A physician, hospital,
clinic, or other person or institution lawfully rendering treatment to an
injured person for a bodily injury covered by personal injury protection
insurance may charge the insurer and injured party only a reasonable amount
pursuant to this section for the services and supplies rendered . . . In
determining whether a charge for a particular service, treatment, or otherwise
is reasonable, consideration may be given to evidence of usual and customary
charges and payments accepted by the provider involved in the dispute,
reimbursement levels in the community and various federal and state medical fee
schedules applicable to motor vehicle and other insurance coverages, and other
information relevant to the reasonableness of the reimbursement for the
service, treatment, or supply.

§
627.736(5)(a), Fla. Stat. Additionally, section 627.736(6), addresses discovery
of facts about an injured person, providing:

(6) DISCOVERY OF FACTS ABOUT
AN INJURED PERSON; DISPUTES. —

(b) Every physician,
hospital, clinic, or other medical institution providing, before or after
bodily injury upon which a claim for personal injury protection insurance
benefits is based, any products, services, or accommodations in relation to
that or any other injury, or in relation to a condition claimed to be connected
with that or any other injury, shall, if requested by the insurer against whom
the claim has been made, furnish a written report of the history, condition,
treatment, dates, and costs of such treatment of the injured person and why the
items identified by the insurer were reasonable in amount and medically
necessary, together with a sworn statement that the treatment or services
rendered were reasonable and necessary with respect to the bodily injury
sustained and identifying which portion of the expenses for such treatment or
services was incurred as a result of such bodily injury, and produce, and allow
the inspection and copying of, his or her or its records regarding such
history, condition, treatment, dates, and costs of treatment if this does not
limit the introduction of evidence at trial. . . .

(c) In the event of a dispute
regarding an insurer’s right to discovery of facts under this section, the
insurer may petition a court of competent jurisdiction to enter an order
permitting such discovery. The order may be made only on motion for good cause
shown . . . . In order to protect against annoyance, embarrassment, or
oppression, as justice requires, the court may enter an order refusing
discovery or specifying conditions of discovery . . . .

§
627.736(6)(b)-(c), Fla. Stat.

In
the decision under review, the First District held that discovery of facts
under section 627.736(6)(c) is limited to the production of the documents
described in section 627.736(6)(b). After reaching this conclusion, the First
District certified conflict with the Fourth District’s holding in Kaminester
that “the ‘discovery of facts’ referred to in section 627.736(6)(c), Florida
Statutes, means that the discovery methods provided for in the Florida Rules of
Civil Procedure are available to insurers that institute proceedings pursuant
to that statute.” Shands, 40 Fla. L. Weekly at D1449. We recognize that
while the parties before this Court disagree about the scope of information
available to insurers under section 627.736(6)(c), both the First and the
Fourth District Courts of Appeal agree that the reference to discovery under
section 627.736(6)(c) applies “only to the types of information a healthcare
provider is required to provide as delineated in section 627.736(6).” Shands,
40 Fla. L. Weekly at D1448; see also State Farm Mut. Auto. Ins. Co. v. Delray
Med. Ctr., Inc., 178 So. 3d 511, 515-17 (Fla. 4th DCA 2015) (distinguishing
Kaminester, and holding that State Farm’s discovery requests exceeded
the permissible scope of discovery under the applicable statute). Accordingly,
the conflict issue we address is limited to the methods by which an insurer may
obtain discovery.

For
the reasons discussed below, we approve the First District’s interpretation in Shands
of the scope of discovery under section 627.736(6)(c), and disapprove the
interpretation of the Fourth District in Kaminester.

FACTS
AND PROCEDURAL HISTORY

Shands
Jacksonville Medical Center (Shands) provided medical services to twenty-nine
State Farm Mutual Automobile Insurance Company (State Farm) insureds who were
injured in motor vehicle accidents. After paying Shands, State Farm requested
certain documentation relating to the reasonableness of the charges pursuant to
section 627.736(6)(b), which requires a healthcare provider to furnish a PIP
insurer, upon request, with specified documents and information related to the
treatment of an injured person and associated costs. In response, Shands
provided State Farm with medical records, documents related to the treatments
and charges for services rendered, its most recent Medicare Cost Report, its
cost information, and comparative cost information obtained from the Agency for
Health Care Administration (AHCA) demonstrating what other hospitals charge for
the same procedures. However, Shands refused to furnish copies of third-party
contracts, which contain negotiated discount rates between Shands and other
insurers and payers, contending that such information was not covered by
subsection (6)(b). State Farm then filed a petition pursuant to section
627.736(6)(c), asking the trial court to compel discovery of the information
withheld and order Shands to make a corporate representative available for
deposition.

The
trial court found that the language of section 627.736(6)(c) allows for
discovery under the entirety of section 627.736, including evidence of the
reasonableness of charges addressed in subsections (5)(a) and (6)(b).
Furthermore, the trial court adopted the reasoning of the Fourth District in Kaminester,
finding that the phrase “discovery of facts” in section 627.736(6)(c) was not
limited to document production, but included “deposition testimony and other
means of obtaining information authorized by the Florida Rules of Civil
Procedure.” Ultimately, the trial court ordered Shands to produce the requested
discovery and granted State Farm’s request to depose a corporate representative
about documents and information.

On
appeal, the First District reversed the trial court’s order in its entirety on
the basis that it exceeded the scope of discovery permissible under sections
627.736(6)(b) and (c), declaring:

[W]e disagree with the trial
court’s conclusion that the “discovery of facts” referred to in section
627.736(6)(c), Florida Statutes[,] allows discovery under the entirety of
section 627.736, including the types of evidence that may be considered when
determining the reasonable reimbursement rate for medical bills presented for
treatment referred to in section 627.736(5)(a).

Shands, 40
Fla. L. Weekly at D1448. The district court concluded that the discovery to
which State Farm was entitled was limited to the types of documents
specifically delineated by subsection (6)(b). Id. Moreover, the district
court disagreed with the trial court’s adoption of the reasoning in Kaminester,
and determined that “the phrase ‘discovery of facts’ in subsection (6)(c) is
limited to the production of the documents described in subsection (6).” Id.
at D1449.

In Kaminester,
the Fourth District examined the nature and extent of discovery permitted under
section 627.736(6)(b) after a healthcare provider refused to produce the
invoice for an MRI upon the insurer’s request, claiming that no invoice existed
because the equipment used was leased. The district court affirmed the trial court’s
order for the healthcare provider to furnish the invoice, determining that the
lease was “well within the meaning of the statutory discovery provision ‘the
costs of such treatment.’ ” Kaminester, 775 So. 2d at 985.

Relevant
to the conflict issue here, the Fourth District affirmed the trial court’s
order requiring the healthcare provider’s corporate president to submit to a
deposition duces tecum pursuant to subsection (6)(c). Id. at 984. The
district court reasoned that when the Legislature used the legal term of art
“discovery of facts” in subsection (6)(c), it borrowed the term “discovery”
from the Florida Rules of Civil Procedure, which provide, “Parties may obtain
discovery by one or more of the following methods: depositions upon oral
examination or written questions; written interrogatories; production of
documents or things or permission to enter upon land or other property for
inspection and other purposes; physical and mental examinations; and requests
for admission.” Id. at 985 (quoting Fla. R. Civ. P. 1.280(a)). The court
interpreted “discovery” consistent with its legal meaning and emphasized that
section 627.736(6) authorizes discovery of “facts,” not merely discovery of
documents. Id. Consequently, the district court concluded that the healthcare
provider’s refusal to supply any of the requested information established good
cause for the trial court’s order compelling the corporate president to submit
to a deposition in order to verify the amount due under the PIP policy. Id.
at 986.

ANALYSIS

This
case concerns the certified conflict between the First District’s holding in Shands
and the Fourth District’s holding in Kaminester regarding the extent of
permissible discovery pursuant to section 627.736(6)(c). “Because the conflict
issue requires this Court to interpret provisions of the Florida Motor Vehicle
No-Fault Law (No-Fault Law), the standard of review is de novo.” Allstate
Ins. Co. v. Holy Cross Hosp., Inc., 961 So. 2d 328, 331 (Fla. 2007)
(footnote omitted).

“As
always, legislative intent is the polestar that guides a court’s inquiry under
the No-Fault Law,” including the PIP statute. Id. at 334. “Such intent
is derived primarily from the language of the statute.” Id. “Where the
wording of the Law is clear and amenable to a logical and reasonable
interpretation, a court is without power to diverge from the intent of the
Legislature as expressed in the plain language of the Law.” Geico Gen. Ins.
Co. v. Virtual Imaging Servs., Inc., 141 So. 3d 147, 154 (Fla. 2013)
(quoting United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82, 85 (Fla.
2001)).

However,
as we examine the plain language of section 627.736(6), we observe that the
First District in Shands and the Fourth District in Kaminester reached
irreconcilable interpretations of the “discovery of facts” language in
subsection (6)(c). The First District held that the phrase “discovery of facts”
is limited to the production of the documents described in section
627.736(6)(b), in direct contrast to the Fourth District’s construction that
“discovery of facts” includes all methods of discovery available under the
Florida Rules of Civil Procedure. Thus, because the phrase “discovery of
facts,” in section 627.736(6)(c), is susceptible to more than one
interpretation, it is necessary to utilize principles of statutory construction
to ascertain legislative intent. See Rollins v. Pizzarelli, 761 So. 2d
294, 297-98 (Fla. 2000) (quoting Forsythe v. Longboat Key Beach Erosion
Control Dist., 604 So. 2d 452, 455 (Fla. 1992) (“Ambiguity suggests that
reasonable persons can find different meanings in the same language.”)).
Consequently, we “must consider the statute as a whole, including the evil to
be corrected, the language, the title, and history of its enactment, and the
state of law already in existence on the statute.” Fla. Dep’t of Envtl.
Prot. v. ContractPoint Fla. Parks, LLC, 986 So. 2d 1260, 1266 (Fla. 2008)
(quoting Bautista v. State, 863 So. 2d 1180, 1185 (Fla. 2003)).

We
have recognized that “the purpose of the no-fault statutory scheme is to
‘provide swift and virtually automatic payment. . . .’ ” Nunez v. Geico Gen.
Ins. Co., 117 So. 3d 388, 393 (Fla. 2013) (quoting Ivey v. Allstate Ins.
Co., 774 So. 2d 679, 683-84 (Fla. 2000)). Consistent with this purpose,
subsection (6) of the PIP statute allows an insurer to verify the legitimacy of
a claim by seeking discovery of facts regarding an injured insured before it
pays PIP benefits. Subsection (6)(b) delineates the mandatory disclosures to
which an insurer is entitled upon request, and subsection (6)(c) provides an
enforcement mechanism by which an insurer may obtain the discovery to which it
is entitled in the event of a dispute.

We
agree with the First District that “[t]he process encompassed by subsections
(6)(b) and (c) is meant to be a limited pre-litigation procedure for a PIP
insurer to obtain specified information about the treatment provided to its
insured and the charges for that treatment.” Shands, 40 Fla. L. Weekly
at D1449. Additionally, we agree with both the First District in Shands
and the Fourth District in Delray that the disclosures enumerated in
subsection (6)(b) are limited to what is discoverable in the context of a
pre-litigation inquiry into the treatment provided by the healthcare provider
and the charges for that treatment, and that “discovery of facts” under
subsection (6)(c) is limited to the specific facts of treatment and to the
related billing of the injured person.

In
considering how the language and title of subsection (6) further reveal the
intent of the Legislature, we turn to the Fourth District’s recent decision in Delray,
which involved facts that are strikingly similar to the present case. In Delray,
the district court considered “whether section 627.736 permits State Farm to
request discovery about the reasonableness of charges by [the healthcare
provider], including discovery regarding the amount others paid . . . for the
same services and treatments.” 178 So. 3d at 512. The Fourth District affirmed
the trial court’s denial of State Farm’s petition for discovery as “overbroad”
and “extremely far-reaching,” holding that “discovery is limited under section
627.736(6)(b) to the facts of the treatment and to the related billing of the
injured person,” and that “section 627.736(5) is inapplicable to discovery
sought under section 627.736(6)(b).” Id. at 512-13.

While
addressing the extent of permissible discovery, the Fourth District in Delray
did not have occasion to address the discovery of depositions, which is at
issue here. Judge Levine, writing for the majority, aptly observed the
distinction between Delray and Kaminester as follows: “the
documentation sought in Kaminester was directly related to treatments
and services provided to the injured party, unlike here where State Farm sought
information regarding amounts paid by others.” 178 So. 3d at 515. Nonetheless,
the Fourth District’s reasoning in Delray regarding the intent of the
Legislature is insightful. The district court declared, “[b]ased on the plain
language of this subsection, as well as the title of the subsection, it is
clear that the focus of this provision is the discovery of documents regarding
the treatment and related billing of the individual injured person.” Id.
The court adopted the First District’s interpretation of section 627.736(6) in Shands,
which provided:

It seems clear to us, [ ]
that the “section” referred to in subsection (6)(c) is in fact a reference to
subsection (6), not the entirety of section 627.736. Subsection (6), unlike
subsection (5)(a), specifically provides that a PIP insurer is entitled to
“Discovery of Facts About an Injured Person,” and subsection (6)(b) delineates
the specific types of information (facts) and documentation to which a PIP
insurer is entitled to receive from medical providers in analyzing the payment
of claims. Furthermore, the title to subsection (6) also indicates that it
addresses “Disputes.” Accordingly, subsection (6)(c) begins with the phrase:
“In the event of a dispute regarding an insurer’s right to discovery of facts
under this section . . . ,” which clearly applies to disputes related to an
insurer’s attempt to obtain the information and documentation relating to the
treatment and associated costs of treatment to an injured insured specified in
subsection (6).

Thus, subsection (6)(b)
concerns the types of facts and documents to which a PIP insurer is entitled to
assist it in ascertaining the reasonableness of the treatment provided to its
insured and the amount the medical provider charged for that care. Subsection
(5)(a), on the other hand, addresses the factors, or “types of evidence,”
relevant to the reasonableness of a medical provider’s charges. These factors,
however, are implicated when there is a dispute as to the reasonableness of
charges for treatment, not when there is a dispute concerning an
insurer’s attempt to obtain the information it is entitled to so that it can
assess the reasonableness of those charges.

Shands, 40
Fla. L. Weekly at D1448.

We
agree with the First District’s reasoning and its interpretation that the
“discovery of facts” in subsection (6)(c) applies to disputes regarding an
insurer’s attempt to obtain information and documentation specified in
subsection (6)(b). The title to subsection (6), “Discovery of Facts About an
Injured Person; Disputes,” reflects that the Legislature intended the
provisions of subsection (6) to allow insurers to discover facts about an
injured insured before paying claims. Moreover, subsection (6)(c) employs the
same “discovery of facts” language as the title, creating a direct link to the
discovery provisions set forth within section 627.736(6). Thus, we conclude
that discovery is limited to the production of “a written report of the
history, condition, treatment, dates, and costs of such treatment of the
injured person and why the items identified by the insurer were reasonable in
amount and medically necessary, together with a sworn statement . . .” as well
as the production, inspection and copying of “records regarding such history,
condition, treatment, dates, and costs of treatment . . . .” § 627.736(6)(b),
Fla. Stat.

Furthermore,
we agree that subsection (6) provides limited pre-litigation discovery into
specified information about the treatment and charges for treatment provided to
an injured party, and that “[t]he discovery tools found in the rules of civil
procedure, . . . are not triggered until litigation over the reasonableness of
those charges has ensued (i.e., commenced pursuant to subsection (5)(a)).” Shands,
40 Fla. L. Weekly at D1449. Therefore, we approve the First District’s holding
that “nothing in subsections (6)(b) or (c) contemplates requiring a PIP medical
provider to submit any of its representatives to deposition, and the trial
court erred by ordering Shands to make a designated corporate representative
available for deposition.” Id.

CONCLUSION

For
these reasons, we hold that the scope of permissible discovery under section
627.736(6)(c) is limited to the production of documents described in subsection
(6)(b). Accordingly, we approve the reasoning of the First District in Shands
and disapprove of Kaminester to the extent that it permits discovery
under the Florida Rules of Civil Procedure.

It
is so ordered. (PARIENTE, LEWIS, and QUINCE, JJ., concur. CANADY and POLSTON,
JJ., concur in result. LAWSON, J., did not participate.)