final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Cheryl Caracuzzo, Judge; L.T. Case No.
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.
T. Segal of Akerman LLP, West Palm Beach and Marcy Levine
Aldrich and Nancy A. Copperthwaite of Akerman LLP, Miami, for
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
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.
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.
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).
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.
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.
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.
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.
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)