42
Fla. L. Weekly S38aTop of Form

Insurance
— Personal injury protection — Limitation of reimbursements to providers to
permissive Medicare fee schedules — Policy endorsement stating that “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,” is legally
sufficient notice of the insurer’s election to use the permissive Medicare fee
schedules to limit reimbursements for medical expenses

ALLSTATE
INSURANCE COMPANY, Petitioner, vs. ORTHOPEDIC SPECIALISTS, etc., Respondents.
Supreme Court of Florida. Case No. SC15-2298. January 26, 2017. Application for
Review of the Decision of the District Court of Appeal — Certified Direct
Conflict of Decisions Fourth District — Case No. 4D14-287 (Palm Beach County).
Counsel: Suzanne Youmans Labrit and Douglas Gerard Brehm of Shutts & Bowen
LLP, Tampa, Florida; Peter J. Valeta of Cozen O’Connor, Chicago, Illinois; and
Richard C. Godfrey of Kirkland & Ellis, LLP, Chicago, Illinois, for
Petitioner. Gary M. Farmer and Gary Michael Farmer, Jr. of Farmer Jaffe
Weissing Edwards Fistos & Lehrman P.L., Fort Lauderdale, Florida; David
Michael Caldevilla of De La Parte & Gilbert, P.A., Tampa, Florida; and
Stephen Douglas Deitsch and Lindsay Capri Porak of Deitsch & Wright, P.A.,
Lake Worth, for Respondents. Edward Herbert Zebersky of Zebersky Payne, LLP,
Fort Lauderdale, Florida; and Lawrence Mark Kopelman of Lawrence M. Kopelman,
P.A., Fort Lauderdale, for Amicus Curiae Florida Medical Association.

(CANADY,
J.) In this case we consider whether a personal injury protection (“PIP”)
insurance policy provides legally sufficient notice of the insurer’s election
to use the permissive Medicare fee schedules identified in section
627.736(5)(a)2., Florida Statutes (2009), to limit reimbursements for medical
expenses. The case is before the Court for review of the decision of the Fourth
District Court of Appeal in Orthopedic Specialists v. Allstate Insurance
Co., 177 So. 3d 19 (Fla. 4th DCA 2015), which held that the policy language
is not legally sufficient to authorize Allstate to apply the Medicare fee
schedules. The Fourth District certified that its decision is in direct
conflict with the decision of the First District Court of Appeal in Allstate
Fire & Casualty Insurance v. Stand-Up MRI of Tallahassee, P.A., 188 So.
3d 1, 3 (Fla. 1st DCA 2015), which held that identical policy language “g[ave]
sufficient notice of [the insurer’s] election to limit reimbursements by use of
the fee schedules.” We have jurisdiction. See art. V, § 3(b)(4), Fla.
Const. For the reasons that follow, we hold that Allstate’s insurance policy
provides legally sufficient notice of Allstate’s election to use the permissive
Medicare fee schedules identified in section 627.736(5)(a)2. to limit
reimbursements. We therefore quash the decision of the Fourth District in Orthopedic
Specialists and approve the decision of the First District in Stand-Up
MRI on the conflict issue.

I.
BACKGROUND

In
the case on review, Orthopedic Specialists and various medical services
providers (“the Providers”) challenged the reimbursements made by Allstate
Insurance Company (“Allstate”) under PIP no-fault insurance policies issued to
Allstate’s insureds. Orthopedic Specialists, 177 So. 3d at 20. The
Providers argued that Allstate’s policy is ambiguous as to whether Allstate has
elected to reimburse the Providers in accordance with the Medicare fee
schedules provided for in section 627.736(5)(a)2. or merely reserved its right
to elect to do so. Id. at 20-21. Specifically, the Providers argued that
the “shall be subject to” provision, contained within an endorsement to the
Allstate policy, is ambiguous. Id. at 21.

The
policy at issue provides that Allstate will make payments as follows:

Allstate will pay to or on
behalf of the injured person the following benefits:

1. Medical Expenses

Eighty percent of all
reasonable expenses for medically necessary medical, surgical, X-ray, dental,
and rehabilitative services, including prosthetic devices, and medically
necessary ambulance, hospital, and nursing services.

Id. An
endorsement to the policy provides:

Limits of Liability

. . . .

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.

Id.
(emphasis and alterations omitted).

On
appeal, the Fourth District examined this Court’s decision in Geico General
Insurance Co. v. Virtual Imaging Services, Inc., 141 So. 3d 147 (Fla.
2013), and concluded that “Virtual Imaging’s central holding is clear:
To elect a payment limitation option, the PIP policy must do so ‘clearly and
unambiguously.’ ” Orthopedic Specialists, 177 So. 3d at 25. The Fourth
District explained that in order to provide legally sufficient notice in
accordance with Virtual Imaging, a policy must “plainly and obviously
limit[ ] reimbursement to the Medicare fee schedules exclusively.” Id.
at 25-26. The Fourth District further concluded that “[t]he policy must make it
inescapably discernable that it will not pay the ‘basic’ statutorily required
coverage [mandate of eighty percent of reasonable expenses for medically
necessary services] and will instead substitute the Medicare fee schedules as
the exclusive form of reimbursement.” Id. at 26.

After
examining the endorsement to the Allstate policy, the Fourth District held that
the policy language is not legally sufficient to authorize Allstate to apply
the Medicare fee schedules because the “shall be subject to” language at issue
is “ambiguous,” “inherently unclear,” and “must therefore be construed in favor
of the Providers.” Id. at 21, 26. The Fourth District reasoned that it
is ambiguous concerning whether Allstate will apply the Medicare fee schedule
limitations to limit reimbursements:

Here, providing that any
amounts payable would be “subject to” “any and all limitations” authorized by
the statute or any amendments thereto, Allstate did nothing more than state the
obvious by indicating that there was a possibility (and the statutory
authorization) for Allstate to apply a specific reimbursement limitation. The
only reasonable way to read the language is as a general recital of Allstate’s
reservation of its right to apply limitations authorized by law, with the
accompanying and corresponding obligation to notify its policy holders of the
election.

Id. at
24. The Fourth District rejected Allstate’s argument that the use of the term
“shall” removes any possible ambiguity regarding whether the Medicare fee
schedule limitations were to be applied:

The word “shall” is
meaningless because it simply emphasizes the obvious. Broken down to its most
simple form, Allstate’s policy says that “any amounts payable under this
coverage shall be subject to any and all limitations” in the PIP
statute. The policy text does not say that the limitations “shall be applied”;
only that they shall be subject to being applied. The word “shall” does
not make it clear whether Allstate will utilize the alternative method or is
simply recognizing its entitlement to do so.

Id. at
25.

II.
ANALYSIS

“Because
the question presented requires this Court to interpret provisions of the
Florida Motor Vehicle No-Fault Law — specifically, the PIP statute — as well
as to interpret the insurance policy, our standard of review is de novo.” Virtual
Imaging, 141 So. 3d at 152.

“Where
the language in an insurance contract is plain and unambiguous, a court must
interpret the policy in accordance with the plain meaning so as to give effect
to the policy as written.” Washington Nat. Ins. Corp. v. Ruderman, 117
So. 3d 943, 948 (Fla. 2013). “Further, in order for an exclusion or limitation
in a policy to be enforceable, the insurer must clearly and unambiguously draft
a policy provision to achieve that result.” Virtual Imaging, 141 So. 3d
at 157. “Policy language is considered to be ambiguous . . . if the language
‘is susceptible to more than one reasonable interpretation, one providing
coverage and the other limiting coverage.’ ” Travelers Indem. Co. v. PCR
Inc., 889 So. 2d 779, 785 (Fla. 2004) (quoting Swire Pac. Holdings v.
Zurich Ins. Co., 845 So. 2d 161, 165 (Fla. 2003)). “[A]mbiguous insurance
policy exclusions are construed against the drafter and in favor of the
insured.” Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla.
2000). “To find in favor of the insured on this basis, however, the policy must
actually be ambiguous.” Penzer v. Transp. Ins. Co., 29 So. 3d 1000, 1005
(Fla. 2010) (emphasis omitted).

“When
interpreting insurance contracts, we may consult references commonly relied
upon to supply the accepted meanings of words.” Garcia v. Fed. Ins. Co.,
969 So. 2d 288, 291-92 (Fla. 2007). Moreover, “when analyzing an insurance
contract, it is necessary to examine the contract in its context and as a
whole, and to avoid simply concentrating on certain limited provisions to the
exclusion of the totality of others.” Swire, 845 So. 2d at 165. This
Court has “consistently held that ‘in construing insurance policies, courts
should read each policy as a whole, endeavoring to give every provision its
full meaning and operative effect.’ ” Id. at 166 (quoting Auto-Owners,
756 So. 2d at 34).

The
PIP Statute

“[T]he
PIP statute sets forth a basic coverage mandate: every PIP insurer is required
to — that is, the insurer ‘shall’ — reimburse eighty percent of reasonable
expenses for medically necessary services.” Virtual Imaging, 141 So. 3d
at 155. This provision — the reasonable medical expenses coverage mandate —
is “the heart of the PIP statute’s coverage requirements.” Id. “[T]here
are two different methodologies for calculating reimbursements to satisfy the
PIP statute’s reasonable medical expenses coverage mandate.” Id. at 156
(emphasis omitted). Compare § 627.736(5)(a)1., Fla. Stat. (2009), with
§ 627.736(5)(a)2., Fla. Stat. (2009). Under the first payment methodology
contained within section 627.736(5)(a)1., “reasonableness is a fact-dependent
inquiry determined by consideration of various factors.” Virtual Imaging,
141 So. 3d at 155-56. Under the alternative, permissive payment methodology
contained within section 627.736(5)(a)2., “insurers ‘may limit
reimbursement’ to eighty percent of a schedule of maximum charges set forth in
the PIP statute.” Id. at 154 (quoting § 627.736(5)(a)2., Fla. Stat.).
Reimbursements made under section 627.736(5)(a)2. satisfy the PIP statute’s
reasonable medical expenses coverage mandate. See id. at 150, 156-57.

In Virtual
Imaging, this Court “h[eld] that under the 2008 amendments to the PIP
statute, a PIP insurer cannot take advantage of the Medicare fee schedules to
limit reimbursements without notifying its insured by electing those fee
schedules in its policy.” Id. at 160. This Court concluded that

notice to the insured,
through an election in the policy, is necessary because the PIP statute,
section 627.736, requires the insurer to pay for “reasonable expenses .
. . for medically necessary . . . services,” § 627.736(1)(a), Fla. Stat., but
merely permits the insurer to use the Medicare fee schedules as a basis
for limiting reimbursements, see § 627.736(5)(a)2., Fla. Stat.

Id. at
150 (alterations in original). Accordingly, this Court reasoned that

[b]ecause the fee schedule
provision of section 627.736(5)(a)2.f. is permissive and not mandatory, and
because the Medicare fee schedules are not the only mechanism for calculating
reimbursements, . . . the insurer cannot take advantage of the Medicare fee
schedules to limit reimbursements without notifying its insured by electing
those fee schedules in its policy.

Id. at
158-59. As this Court explained, “when the plain language of the PIP statute
affords insurers two different mechanisms for calculating reimbursements, the
insurer must clearly and unambiguously elect the permissive payment methodology
in order to rely on it.” Id. at 158 (citing Kingsway Amigo Ins. Co.
v. Ocean Health, Inc., 63 So. 3d 63, 67-68 (Fla. 4th DCA 2011)).

The
Instant Case

Allstate’s
PIP policy provides legally sufficient notice of Allstate’s election to use the
permissive Medicare fee schedules identified in section 627.736(5)(a)2. to
limit reimbursements. The endorsement to Allstate’s policy clearly and
unambiguously states that “[a]ny amounts payable” for medical expense
reimbursements “shall be subject to any and all limitations, authorized by
section 627.736, . . . including . . . all fee schedules.” When read in its
context and as a whole with Allstate’s policy, the plain and obvious meaning of
the endorsement is that reimbursements will be made in accordance with all of
the fee schedule limitations contained within section 627.736(5)(a)2. See,
e.g., Stand-Up MRI, 188 So. 3d at 3 (“Virtual Imaging requires no
other magic words from Allstate’s policy and its simple notice requirement is
satisfied by Allstate’s [unambiguous] language limiting ‘[a]ny amounts payable’
to the fee schedule-based limitations found in the statute.” (second alteration
in original)); Fla. Wellness & Rehab. v. Allstate Fire & Cas. Ins.
Co., 201 So. 3d 169, 173 (Fla. 3d DCA 2016) (“The use of the phrase
‘subject to’ in the policy places the insured on notice of the limitations
elected by Allstate; indeed, we cannot discern any other alternative meaning to
this language.”); Allstate Indem. Co. v. Markley Chiropractic & Acupuncture,
LLC, 41 Fla. L. Weekly D793, 2016 WL 1238533, at *4 (Fla. 2d DCA Mar. 30,
2016) (explaining that “Virtual Imaging did not dictate a form of
notice” or require insurers to specifically state the word “Medicare”).
Allstate’s policy thus places both providers and insured on notice of
Allstate’s election to use the permissive Medicare fee schedules identified in
section 627.736(5)(a)2. to limit reimbursements.

Respondents
argue that Allstate’s policy is ambiguous under Virtual Imaging because
it fails to state that Allstate: (1) will not actually pay eighty percent of
reasonable charges and (2) will instead calculate benefits only under the
permissive Medicare fee schedules contained within section 627.736(5)(a)2. But
Respondents’ argument misconstrues Virtual Imaging. A PIP policy cannot
contain a statement that the insurer will not pay eighty percent of reasonable
charges because no insurer can disclaim the PIP statute’s reasonable medical
expenses coverage mandate. See Virtual Imaging, 141 So. 3d at 155.
Furthermore, a PIP policy cannot state that the insurer will calculate benefits
solely under the Medicare fee schedules contained within section
627.736(5)(a)2. because the Medicare fee schedules are not the only applicable
mechanism for calculating reimbursements under the permissive payment
methodology. See id. at 159 (explaining that “the Medicare fee schedules
are not the only mechanism for calculating reimbursements”). Compare §
627.736(5)(a)2.a., d.-f., Fla. Stat. (referring to the Medicare fee schedules),
with § 627.736(5)(a)2.b.-c., Fla. Stat. (referring to the non-Medicare
fee schedules).

Respondents
argue that Allstate’s policy is ambiguous because the term “shall” can
reasonably be construed as “must” or “may.” This argument unreasonably suggests
that we ignore the context in which “shall” appears. Respondents correctly note
that the term “shall” can be construed as “must” or “may.” See, e.g.,
Black’s Law Dictionary (10th ed. 2014) (defining “shall” in relevant part
as “will” or “may”). But it is frequently unambiguously the case that “[t]he
word ‘shall’ is mandatory in nature.” Sanders v. City of Orlando, 997
So. 2d 1089, 1095 (Fla. 2008); see Virtual Imaging, 141 So. 3d at 155
(interpreting the word “shall” contained within section 627.736(1) as mandatory).
This Court has recognized that “[a]lthough there is no fixed construction of
the word ‘shall,’ it is normally meant to be mandatory in nature” and “[i]ts
interpretation depends upon the context in which it is found.” S. R. v.
State, 346 So. 2d 1018, 1019 (Fla. 1977) (citation omitted). Nothing within
Allstate’s policy indicates that this Court should construe the word “shall”
contrary to its normal usage. Given the context of the policy provision, the
only reasonable interpretation of the term “shall” is as “must” or “will.”

Respondents
argue that even if the term “shall” is interpreted as mandatory, Allstate’s
policy is ambiguous because the phrase “subject to” can reasonably be construed
as a mandatory command or a permissive instruction. Again, this argument
suggests that we should ignore the context. Respondents correctly note that the
phrase “subject to” can be construed as a permissive instruction. See, e.g.,
Oxford American Dictionary & Thesaurus 1301-02 (2nd ed. 2009) (defining
“subject to” in relevant part as “dependent or conditional on” or “under
someone’s or something’s control or authority”); St. Augustine Pools, Inc.
v. James M. Barker, Inc., 687 So. 2d 957, 958 (Fla. 5th DCA 1997) (“The
term ‘subject to’ means ‘liable, subordinate, subservient, inferior, obedient
to; governed or affected by; provided that; provided; answerable.’ ” (quoting Black’s
Law Dictionary 1425 (6th ed. 1990))). Because insurance contracts must be
read as a whole and not in isolated parts, the appropriate inquiry in this case
is whether the phrase “shall be subject to” is ambiguous within the full
context of Allstate’s PIP policy.

Although
there is no fixed construction of the phrase “shall be subject to,” it is
normally meant to be mandatory in nature and its interpretation depends upon
the context in which it is found. See, e.g., Certain Interested Underwriters
at Lloyd’s London v. Pitu, Inc., 95 So. 3d 290, 293 (Fla. 3d DCA 2012)
(holding that an endorsement to a homeowner’s insurance policy stating
“loss(es) paid arising out of, or caused by, water damage shall be subject
to a maximum amount of $25,000 during the policy term” clearly and
unambiguously limited reimbursement of losses for water damage to $25,000
(alteration in original) (emphasis added)); cf. S. R. v. State, 346 So.
2d at 1019 (reasoning that the word “shall” is normally meant to be mandatory
in nature and its interpretation depends upon the context in which it is
found). This Court has interpreted the phrase “shall be subject to” as a
mandatory command and a permissive instruction in different contexts. Compare
Robertson v. State, 143 So. 3d 907, 908-09 (Fla. 2014) (explaining that
because the Legislature has mandated in section 921.141(4), Florida Statutes
(2013), that “[t]he judgment of conviction and sentence of death shall be
subject to automatic review by the Supreme Court of Florida,” Florida law
“requires that this Court shall automatically review every judgment
of conviction and sentence of death” (alteration in original) (emphasis
added)), and St. Mary’s Hosp., Inc. v. Phillipe, 769 So. 2d 961, 972
(Fla. 2000) (“Arbitration is not voluntary according to section 766.207(7)(k)
because ‘a claimant who rejects a defendant’s offer to arbitrate shall be
subject to the provisions of section 766.209(4),’ which limits the
noneconomic damages to be awardable at trial to $350,000.” (emphasis added)), with
Fallis v. City of N. Miami, 127 So. 2d 883, 884 (Fla. 1961) (holding that
the phrase “shall be subject to referendum” contained within the charter of the
City of North Miami was “not mandatory” because it was “obviously intended to permit
a referendum on a bond ordinance when such is demanded in accordance with other
provisions of the municipal charter”).

Here,
in the context of Allstate’s PIP policy, the only reasonable interpretation of
the phrase “shall be subject to” is as a mandatory command. By stating that
“[a]ny amounts payable” for medical expense reimbursements “shall be subject to
any and all limitations, authorized by section 627.736, . . . including . . .
all fee schedules,” Allstate’s policy endorsement states in mandatory language
that benefit payments must or will be made in accordance with
such limitations. The use of the word “shall” — which is mandatory in nature
— supports this conclusion, and nothing within Allstate’s policy indicates
that this Court should construe the phrase “shall be subject to” as a
permissive instruction. To interpret the provision as argued by the Respondents
would effectively make the provision meaningless. Under that interpretation,
the provision amounts to nothing more than a nugatory recitation of the
statutory authorization.

Respondents
argue that Allstate’s policy is ambiguous because the phrase “all fee
schedules” includes both the non-Medicare fee schedules listed in section
627.736(5)(a)1. and the Medicare fee schedules listed in section
627.736(5)(a)2. Not so. In the context of Allstate’s policy, the endorsement
unambiguously references “any and all limitations, authorized by section
627.736, . . . including . . . all fee schedules.” (Emphasis added.) A
review of section 627.736 reveals that the only fee schedule limitations
applicable to insurer payments contained within that statute are located in
section 627.736(5)(a)2. See § 627.736(5)(a)2., Fla. Stat. (“The insurer
may limit reimbursement to 80 percent of the following schedule
of maximum charges . . . .” (emphasis added)); § 627.736(5)(a)3.-5., Fla. Stat.
(referencing the fee schedule limitations contained within section
627.736(5)(a)2.). The “fee schedules” referred to in subsection (a)1. are not
within the category of “limitations” referred to in the policy endorsement. In
explaining the factors that are relevant to determining what constitutes a
reasonable charge, subsection (a)1. simply provides that “consideration may be
given” to various relevant factors, including “various federal and state
medical fee schedules applicable to automobile and other insurance coverages.”
These fee schedules may be considered in determining the amount of reasonable
charges, but they — unlike the fee schedules referred to in subsection (a)2.
— do not operate as “limitations” on charges.

Orthopedic
Specialists erroneously concluded that Allstate’s policy language is
not legally sufficient to authorize Allstate to apply the Medicare fee
schedules. Stand-Up MRI correctly concluded that Allstate’s PIP policy
provides legally sufficient notice of Allstate’s election to use the permissive
Medicare fee schedules identified in section 627.736(5)(a)2. to limit
reimbursements.

III.
CONCLUSION

We
approve Stand-Up MRI on the conflict issue and quash Orthopedic
Specialists.

It
is so ordered. (LABARGA, C.J., and QUINCE, and POLSTON, JJ., concur. PARIENTE,
J., dissents with an opinion, in which LEWIS, J., and PERRY, Senior Justice,
concur.)

__________________

(PARIENTE,
J., dissenting) I dissent and would adopt the Fourth District’s well-reasoned
decision in Orthopedic Specialists v. Allstate Insurance Co., holding
that the policy language in the Allstate personal injury protection (PIP)
policy is “inherently unclear” and did not properly provide legally
sufficient notice to the insured or medical providers of the insurer’s election
to use the permissive Medicare fee schedule. 177 So. 3d 19, 20-21 (Fla. 4th DCA
2015). If an insurer elects to use the Medicare fee schedule as the standard
for reimbursement, “the insurer must clearly and unambiguously draft a policy
provision to achieve that result.” Geico Gen. Ins. Co. v. Virtual Imaging
Servs., Inc., 141 So. 3d 147, 157 (Fla. 2013). Likewise, I agree with the
Fourth District’s analysis that “[a] policy is not sufficient unless it plainly
and obviously limits reimbursement to the Medicare fee schedules exclusively.” Orthopedic
Specialists, 177 So. 3d at 25-26.

As
the majority stated, the policy language at issue in this case states:

Allstate will pay to or on
behalf of the injured person the following benefits:

1. Medical Expenses

Eighty percent of all
reasonable expenses for medically necessary medical, surgical, X-ray, dental,
and rehabilitative services, including prosthetic devices, and medically
necessary ambulance, hospital, and nursing services.

. . . .

Limits of Liability

. . . .

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.

Majority
op. at 3.

I
agree with the Fourth District’s explanation that the policy language including
“all fee schedules” authorized by Florida’s PIP statute does not clearly and
unambiguously put providers on notice that Allstate elects the Medicare fee
schedule. As the Fourth District also explained regarding the “subject to”
language:

The policy cannot leave
Allstate’s choice of reimbursement method in limbo under the guise of the
words, “subject to” without incorporating specific words to that effect. The
policy must make it inescapably discernable that it will not pay the “basic”
statutorily required coverage and will instead substitute the Medicare fee
schedules as the exclusive form of reimbursement.

Dozens of courts have weighed
in on the meaning of the language at issue in this appeal, and there is a sharp
divide as to whether the language is legally sufficient to invoke utilization
of the Medicare fee schedules and thereby meet its statutory duty to provide
clarity and specificity. And to be sure, Allstate owns the burden to avoid
latent ambiguity. See [Wash. Nat’l Ins. Co. v.] Ruderman,
117 So. 3d [943,] 950 [(Fla. 2013)] (recognizing, with regard to ambiguous
language, that “ ‘[i]t has long been a tenet of Florida insurance law that an
insurer, as the writer of an insurance policy, is bound by the language of the
policy, which is to be construed liberally in favor of the insured and strictly
against the insurer’ ” (quoting Berkshire Life Ins. Co. v. Adelberg, 698
So. 2d 828, 830 (Fla. 1997))). While we recognize that a lack of consensus
among the courts does not raise a presumption of ambiguity, it would be
disingenuous for us to say that this widespread debate does not make us
question Allstate’s suggestion that its policy is, as it argues, “crystal
clear.” As Judge Klein said in State Farm Fire & Casualty Insurance Co.
v. Deni Associates of Florida, Inc., 678 So. 2d 397, 408 (Fla. 4th DCA
1996): “If Judges learned in the law can reach so diametrically conflicting
conclusions as to what the language of the policy means, it is hard to see how
it can be held as a matter of law that the language was so unambiguous that a
layman would be bound by it.”

Orthopedic
Specialists, 177 So. 3d at 26.

The
Amicus Brief of the Florida Medical Association, in support of the medical
provider, explains in detail both the history of Florida’s PIP statute and its
many amendments and the dilemma posed by this ambiguous policy provision, which
allows Allstate to select any method of reimbursement rather than exclusively
electing the Medicare fee schedule. As the Amicus states in explaining the
importance of clarity in the PIP carrier’s election of a fee schedule:

The election as to which
payment methodology is utilized by Allstate is critical to the medical
profession and carries with it ramifications that directly affect physician
reimbursements and the doctor patient relationship. For example, if an insurer
elects the fact dependent method of subsection (5)(a)1 to calculate benefits,
the physician is still permitted to charge and is in a position to collect what
the physician considers a reasonable amount for their services. On the other
hand, if an [sic] PIP insurer properly elects the fee schedule method of
subsections (5)(a)2 the physician is limited to a payment that may be below the
cost of rendering the care or in a worst case scenario to no compensation if
the treatment is “not reimbursable under Medicare or workers’ compensation.” See
§ 627.736(5)(a)2.f. The physician further is prohibited from balance billing
their patients. See § 627.736(5)(a)5. In short, the fee schedule amount
is a “take it-or leave it” proposition.

Unfortunately, the practice
of medicine requires physicians to make some difficult choices. One of those is
whether it can continue to treat patients based on certain reimbursement rates.
Under traditional health insurance a provider may enter into a managed care
network agreement with a health insurance company and agrees to reduce its
rates, it does so in exchange for different forms of consideration. There is an
opportunity for additional business and the provider has none of the procedural
obstacles that face providers who agree to treat automobile accident insureds.

Until the enactment of the
permissive fee schedule, medical providers knew that No-Fault insurance was one
of the last bastions of first party coverage where reimbursement was based
solely on reasonable charges. If a provider felt that its charge was
reasonable, it knew that the insurer will have to pay based on that amount or
the provider had the right to challenge the insurer’s determination in court.
It was this trade-off that made the “red-tape” inherent in complying with the
PIP statute — or to engage in first and third party litigation — somewhat
economical to the provider. If, however, the reimbursement will be limited,
each provider will have to decide whether the meager amounts payable under the
fee schedules are sufficient to justify the “red tape”, limitations and
requirements inherent in providing services to an injured accident victim.[n.9]

[N.9] Several appellate court
decisions have recognized, the disparity between payment under the “fee
schedule method” that pays much lower benefits (commensurate with meager
Medicare rates) than would be payable under the “fact based payment method.” See
Geico Indem. Co. v. Physicians Grp. LLC, 47 So. 3d 354, 356 (Fla. 2d DCA
2010) (PIP insurer unlawfully relied on Medicare fee schedules to pay merely
$1,122.86 for a $10,800 surgery); Nationwide Mutual Ins. Co. v. AFO Imaging,
Inc., 71 So. 3d 134, 137 (Fla. 2d DCA 2011) (fee schedule method is
“utilized in computing the minimum amount” payable by PIP); [Allstate Fire
& Cas. Ins. Co. v.] Stand-Up MRI, [188 So. 3d 1, 3 (Fla. 1st DCA 2015)]
(fact dependent reasonable amount method “apparently results in higher
reimbursements” than permissive fee schedule method).

Br.
of Amicus Curiae Fla. Medical Ass’n (Mar. 11, 2016), at 14-16.

Due
to the ramifications a PIP carrier’s fee schedule selection has on physicians,
as the Amicus explained, and the resulting importance that policies be “clear
and unambiguous,” as our precedent requires, I agree with the Fourth District
that “the language at issue is ambiguous and . . . must therefore be construed
in favor of the Providers.” Orthopedic Specialists, 177 So. 3d at 26.
(LEWIS, J., and PERRY, Senior Justice, concur.)

* *
*Bottom of Form