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Green v. State Farm Mutual Automobile Insurance Co.

Florida Court of Appeals, Fourth District

May 17, 2017

RENA GREEN, Appellant,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Cheryl Caracuzzo, Judge; L.T. Case No. 50-2015-CA-002899-XXXX-MB.

          Philip M. Burlington and Nichole J. Segal of Burlington & Rockenbach, P.A., West Palm Beach and Jeffrey M. Liggio and Geoff S. Stahl of Liggio Law, West Palm Beach, for appellant.

          Tracy T. Segal of Akerman LLP, West Palm Beach and Marcy Levine Aldrich and Nancy A. Copperthwaite of Akerman LLP, Miami, for appellee.

          Per Curiam.

         Appellant's declaratory judgment complaint challenging State Farm's methodology for calculating PIP policy medical reimbursements was dismissed for failure to state a claim. Because we recently held in Northwest Center for Integrative Medicine and Rehabilitation, Inc. v. State Farm Mutual Automobile Insurance Company, 42 Fla.L.Weekly D446 (Fla. 4th DCA Feb. 22, 2017) that this reimbursement issue has not been conclusively resolved, we reverse for further proceedings.

         Appellant had an automobile policy with PIP benefits from State Farm. She was in an accident and treated by medical providers. State Farm paid a portion of the providers' charges and the providers billed appellant for the remainder.

         As we understand it, appellant sought a declaratory judgment that State Farm relied exclusively on the Medicare fee schedules when determining the reasonable amount to reimburse her medical providers, even though State Farm failed to elect this method of reimbursement in her policy. Appellant requested that State Farm be ordered to reimburse the class members for the amounts they were billed by their providers.

         Pursuant to section 627.736, Florida Statutes (2011), an insurer may elect one of two methods to calculate PIP medical reimbursements: "(a) it can pay a reasonable amount consistent with subsection (5)(a)(1) of the statute; or (b) it can elect to apply the Medicare fee schedules, as set forth in subsection (5)(a)(2) of the statute." Nw. Ctr., 42 Fla. L. Weekly, at *1. However, to exercise the second option, "the insurer must provide notice in the policy of its election to use the fee schedules." Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., 141 So.3d 147, 159 (Fla. 2013).

         If an insurer elects the Medicare fee schedule method, the PIP statute prohibits the medical services provider from billing or attempting to collect from the insured any amount exceeding the payment made from the insurer, also known as "balance billing." § 627.736(5)(a)5.

         It is undisputed that State Farm did not elect the Medicare fee schedule method in appellant's insurance policy. Appellant alleged in her complaint that despite electing to reimburse her medical providers a reasonable amount, State Farm was relying exclusively on the Medicare fee schedules as the basis for reimbursement. Because State Farm failed to provide notice of its election to use the Medicare fee schedules, appellant asserted she was improperly subjected to balance billing by her providers.

         State Farm moved to dismiss the complaint, making the circular argument that because the policy did not elect the Medicare fee schedule method, appellant's allegation that State Farm had elected that method without notice failed to state a claim. Additionally, State farm argued the action was inappropriate for class relief.

         The trial court granted State Farm's motion, finding that after "[a] review of the language of State Farm's policy, " it was "clear that State Farm did not make a policy election to limit reimbursements pursuant to the schedule of maximum charges set forth in Fla. Stat. § 627.736(5)(a)2. (2008-2012) in the policy." Therefore, appellant's theory, which was "based on such an election-fail[ed] to state a cognizable claim for relief." Moreover, because State Farm did not elect to utilize the Medicare fee schedules, the statutory protection against balance billing did not apply.

         "We review an order dismissing a complaint for declaratory judgment for an abuse of discretion, although 'the complaint's allegations and all reasonable inferences from them must be accepted as true.'" Northwest Center, 42 Fla. L. Weekly, at *3 (quoting Acad. Express, LLC v. Broward Cty., 53 So.3d 1188, 1190 (Fla. 4th DCA 2011)). "The test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all." N & D Holding, Inc. v. Town of Davie, 17 So.3d 819, 820-21 (Fla. 4th DCA 2009) ...


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