Progressive v. Florida Hospital

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED

PROGRESSIVE SELECT INSURANCE
COMPANY,

Petitioner,

v. Case No. 5D16-2333

FLORIDA HOSPITAL MEDICAL CENTER
A/A/O JONATHAN PARENT,

Respondent.
________________________________/

Opinion filed November 17, 2017

Petition for Certiorari Review of Decision
from the Circuit Court for Orange County
Acting in its Appellate Capacity.

Douglas H. Stein, of Bowman and Brooke,
LLP, Coral Gables, for Petitioner.

Chad A. Barr, of Law Office of Chad A. Barr,
P.A., Altamonte Springs, for Respondent.

Lawrence M. Kopelman, of Lawrence M.
Kopelman, P.A., Fort Lauderdale and Mac
S. Phillips and Chris Tadros, of Phillips
Tadros, P.A., Fort Lauderdale, as Amicus
Curiae Floridians for Fair Insurance, Inc.

SAWAYA, J.

This certiorari proceeding concerns the proper methodology to determine the

application of the deductible authorized under section 627.739(2), Florida Statutes

(2014), when personal injury protection (“PIP”) benefits are sought by an insured. The
decision we review (rendered by the circuit court in its appellate capacity) provides that,

when calculating the amount of PIP benefits due to the insured, section 627.739(2)

requires the deductible to be subtracted from the total medical care charges before

applying the statutory reimbursement limitations provided in section 627.736(5)(a)1.b.,

Florida Statutes (2014). The respondent, Florida Hospital Medical Center, contends that

the court applied the correct law in utilizing this methodology. The petitioner, Progressive

Select Insurance Company, argues that the statutory limitations must be applied first and

the deductible subtracted from that amount. The issue is thus framed, and we must

decide whether the circuit court properly interpreted the pertinent statutory provisions and

applied the correct methodology. This issue has generated numerous conflicting

decisions by the county and circuit courts, 1 so we issue this opinion to provide precedent

and a basis of continuity for future trial court rulings. See Fla. Med. & Injury Ctr., Inc. v.

Progressive Express Ins., 29 So. 3d 329, 331 (Fla. 5th DCA), review denied, 46 So. 3d

567 (Fla. 2010) (footnote omitted).

Factual and Procedural Background

A discussion of the circumstances surrounding the accident that led to the

insured’s claim for PIP benefits is not particularly helpful to resolve the issue before us,

so we will not dwell on that aspect of the underlying case. It is enough to say that after

1 See, e.g., Progressive Select Ins. v. Fla. Hosp. Med. Ctr., 24 Fla. L. Weekly Supp.
318a (Fla. 9th Cir. Ct. June 14, 2016); Progressive Select Ins. v. Fla. Hosp. Med. Ctr., 24
Fla. L. Weekly Supp. 200a (Fla. 9th Cir. Ct. June 14, 2016); cf. Advantacare of Fla., LLC
v. Geico Indem. Co., 23 Fla. L. Weekly Supp. 841a (Fla. 7th Cir. Ct. July 24, 2015);
Progressive Am. Ins. v. Munroe Reg’l Health Sys., Inc., 23 Fla. L. Weekly Supp. 707a
(Fla. 18th Cir. Ct. Apr. 17, 2015); Garrison Prop. & Cas. Ins. v. New Smyrna Imaging,
LLC, 23 Fla. L. Weekly Supp. 708a (Fla. 18th Cir. Ct. Jan. 12, 2015).

2
the insured, Jonathan Parent, was involved in an automobile accident, he incurred bills

for the medical care he received from Florida Hospital. Those bills exceeded the

deductible amount of $1000 provided in the insurance policy issued by Progressive. As

is typical in these cases, Parent assigned his PIP benefits under the policy to Florida

Hospital (hence the designation “a/a/o” in the caption, which means “as assignee of”).

The bill Florida Hospital sent to Progressive for Parent’s treatment calculated the amount

owed as follows:

$2,781.00 Total hospital charge
- $1,000.00 Parent’s PIP deductible
$1,781.00
X 75% Applying section 627.736(5)(a)1.b.
$1,335.75
X 80% Applying section 627.736(5)(a)1.
$1,068.60 Amount Due

Progressive remitted payment, but it used a different payment methodology when

applying section 627.736(5)(a)1.b.’s reimbursement limitation provision:

$2,781.00 Total hospital charge
X 75% Applying section 627.736(5)(a)1.b.
$2,085.75
- $1,000.00 Parent’s PIP deductible
$1,085.75
X 80% Applying section 627.736(5)(a)1.
$ 868.60 Amount Due

Florida Hospital thereafter filed suit against Progressive in the county court seeking

the $200 difference between what it calculated the PIP benefit amount to be and what

Progressive paid. After Progressive filed an answer denying liability and asserting

affirmative defenses, both parties filed motions for summary judgment.

The county court entered a final summary judgment in favor of Florida Hospital in

the amount of $200, plus interest, thus adopting Florida Hospital’s argument that the plain

3
 Specifically, Progressive contends that the reimbursement limitations contained

in section 627.736(5)(a)1.b. should be applied to reduce the expenses and losses and

that the deductible should be subtracted from that reduced amount to arrive at the benefit

amount owed to the insured. We disagree because, using that methodology, the

deductible is not being applied toward 100% of the expenses and losses as required by

section 627.739(2). Section 627.736(5)(a)1. provides the insurer with an option to

determine benefits pursuant to a schedule of reimbursement limitations. This statutory

provision is part of legislative amendments enacted in 2008. It states in pertinent part:

1. The insurer may limit reimbursement to 80 percent of the
following schedule of maximum charges:

....

b. For emergency services and care provided by a hospital
licensed under chapter 395, 75 percent of the hospital’s usual
and customary charges.

§ 627.736(5)(a)1., Fla. Stat. (2014) (emphasis added). “The word ‘may’ when given its

ordinary meaning denotes a permissive term rather than the mandatory connotation of

the word ‘shall.’” Fla. Bar v. Trazenfeld, 833 So. 2d 734, 738 (Fla. 2002).

We believe that application of the optional reimbursement limitations to establish

a reduced amount of expenses and losses from which the deductible amount is

subtracted would render meaningless the requirement in section 627.739(2) that “[t]he

deductible amount must be applied to 100 percent of the expenses and losses.” See

Borden v. E.-Eur. Ins., 921 So. 2d 587, 595 (Fla. 2006) (“It is . . . a basic rule of statutory

construction that ‘the Legislature does not intend to enact useless provisions, and courts

should avoid readings that would render part of a statute meaningless.’”).

7
deductible would be applied to, moving the term “benefits” to the next sentence, which

discusses the insurer’s liability after the deductible is satisfied. Thus, the current version

of the statute provides a clear distinction between “expenses and losses” for purposes of

applying the deductible and “benefits” that are due to the insured after the reimbursement

limitations are applied.

The legislative amendment in 2003 constituted a substantive change in the

sequence of applying the deductible in PIP cases. The Legislature, by requiring that the

deductible be applied to 100% of the expenses and losses, abandoned the previous

methodology of subtracting the deductible from the benefits due under the policy after

applying the reimbursement limitations. Despite this legislative change in 2003,

Progressive and the dissent argue that the methodology advanced in the previous version

of section 627.739 (as interpreted by the Florida Supreme Court in Govani and Arnone)

should continue to be applied by the courts under the current version of the statute. We

do not believe that the Legislature would find it necessary to amend the statute as it did

in 2003 if, as Progressive and the dissent essentially argue, there was to be no change

Fla. S. Comm. on Banking & Ins., CS for SB 32-A (2003) Staff Analysis 16 (May 15, 2003).
We have not relied on this report in our analysis. We note it here because it confirms our
conclusion about how the deductible should be applied under section 627.739(2). See
Townsend v. R.J. Reynolds Tobacco Co., 192 So. 3d 1223, 1229 (Fla. 2016) (noting that,
after examining a staff analysis of the enacting law, “[a]lthough it is not necessary to delve
into the legislative history of section 55.03(3), Florida Statutes (2010), because the
language is clear and unambiguous, the legislative history nevertheless confirms our
reading of the statute”); Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, 368
(Fla. 2013) (“The legislative summary in a staff analysis regarding FDUTPA affords further
support for the principal [sic] . . . .”); Larimore v. State, 2 So. 3d 101, 109 n.4 (Fla. 2008)
(“This interpretation is confirmed by Senate staff analyses on chapter 99-222, Laws of
Florida . . . .”); G.G. v. Fla. Dep’t of Law Enf., 97 So. 3d 268, 273 (Fla. 1st DCA 2012)
(“Our decision does not rely on staff analyses. . . . The staff analyses support the position
advocated here by G.G., not FDLE.”).

10
Fla. SB 1036 (2016) (words stricken are deletions; words underlined are additions); see

also Fla. HB 659 (2016) (same). This amendment incorporates the same methodology

Progressive and the dissent argue should apply under the current version of section

627.739(2). The Legislature did not adopt this amendment.

The dissent labels this failed amendment a clarification of the current statute. If

the failed amendment is a clarification, the refusal of the Legislature to adopt it is a

declaration that it does not accurately express the meaning of the current version of

section 627.739(2) and indicates a rejection of the argument made by Progressive and

the dissent. But it is not a clarification. The thirteen-year span between enactment of the

current statute and introduction of the failed amendment establishes that it would have

been a substantive revision. See Parole Comm’n v. Cooper, 701 So. 2d 543, 544-45

(Fla. 1997) (“[I]t is inappropriate to use an amendment enacted ten years after the original

enactment to clarify original legislative intent.”); State Farm Mut. Auto. Ins. v. Laforet, 658

So. 2d 55, 62 (Fla. 1995) (“It would be absurd . . . to consider legislation enacted more

than ten years after the original act as a clarification of original intent . . . .”); Macchione,

123 So. 3d at 117. Moreover, the title to the bill incorporating the failed amendment

states:

An act relating to automobile insurance; . . . amending s.
627.739, F.S.,; revising applicability; providing a limitation to
an amount of expenses and losses applicable to a deductible
related to personal injury protection benefits under a certain
condition . . . .

Fla. SB 1036 (2016). The title of a proposed law may reveal whether the Legislature

intended to substantively change a statute or to clarify its provisions. See Hassen v. State

Farm Mut. Auto. Ins., 674 So. 2d 106, 109-10 (Fla. 1996); see also Earth Trades, Inc. v.

12
 Specifically, Progressive contends that the reimbursement limitations contained

in section 627.736(5)(a)1.b. should be applied to reduce the expenses and losses and

that the deductible should be subtracted from that reduced amount to arrive at the benefit

amount owed to the insured. We disagree because, using that methodology, the

deductible is not being applied toward 100% of the expenses and losses as required by

section 627.739(2). Section 627.736(5)(a)1. provides the insurer with an option to

determine benefits pursuant to a schedule of reimbursement limitations. This statutory

provision is part of legislative amendments enacted in 2008. It states in pertinent part:

1. The insurer may limit reimbursement to 80 percent of the
following schedule of maximum charges:

....

b. For emergency services and care provided by a hospital
licensed under chapter 395, 75 percent of the hospital’s usual
and customary charges.

§ 627.736(5)(a)1., Fla. Stat. (2014) (emphasis added). “The word ‘may’ when given its

ordinary meaning denotes a permissive term rather than the mandatory connotation of

the word ‘shall.’” Fla. Bar v. Trazenfeld, 833 So. 2d 734, 738 (Fla. 2002).

We believe that application of the optional reimbursement limitations to establish

a reduced amount of expenses and losses from which the deductible amount is

subtracted would render meaningless the requirement in section 627.739(2) that “[t]he

deductible amount must be applied to 100 percent of the expenses and losses.” See

Borden v. E.-Eur. Ins., 921 So. 2d 587, 595 (Fla. 2006) (“It is . . . a basic rule of statutory

construction that ‘the Legislature does not intend to enact useless provisions, and courts

should avoid readings that would render part of a statute meaningless.’”).

7
 Historical Development of Section 627.739(2)

The Legislature knows how to write statutory provisions that would require the

deductible amount to be subtracted from the benefits due under the policy, which are

determined after the reimbursement limitations are applied. Indeed, the prior version of

section 627.739(2) stated:

Insurers shall offer to each applicant and to each policyholder,
upon the renewal of an existing policy, deductibles, in
amounts of $250, $500, $1,000, and $2,000, such amount to
be deducted from the benefits otherwise due each person
subject to the deduction. However, this subsection shall not
be applied to reduce the amount of any benefits received in
accordance with s. 627.736(1)(c).

§ 627.739(2), Fla. Stat. (1999) (emphasis added). The Florida Supreme Court reviewed

the emphasized provision and held that the clear meaning of the statute required that the

benefits due under the policy be calculated utilizing the reimbursement limitation (which

at that time was 80% of the medical expenses) and that the deductible amount was to be

subtracted from that calculation. Govan v. Int’l Bankers Ins., 521 So. 2d 1086, 1088 (Fla.

1988) (“The plain reading of this statute requires a construction that subtracts the

deductible from the eighty percent of the medical expenses.”); see also Int’l Bankers Ins.

v. Arnone, 552 So. 2d 908, 911 (Fla. 1989) (“Under the statutory scheme, the deductible

amounts are to be deducted from ‘benefits otherwise due.’ . . . Section 627.736(1) defines

the parameters of the benefits otherwise due under a PIP policy as including eighty

percent of certain medical expenses and sixty percent of lost wages . . . .”). Therefore,

under this prior version of the statute, the deductible was required to be satisfied from the

amount that was actually payable out of the policy benefits.

8
 In Govan, the Florida Supreme Court lamented the methodology required by the

prior version of section 627.739(2) and invited the Legislature to address the issue:

While we may disagree with the legislative policy underlying
the statute, we have no authority to change the clear intent
and purpose of a statute that is not vague and ambiguous.
Complaints about this policy should be addressed to the
legislature.*

* We note the legislature, during the 1987 session, failed to
enact a bill which would have amended the statute to make it
consistent with the statutory interpretation presented here by
the petitioner. House Bill 1015.

521 So. 2d at 1088. In response to Govan and Arnone, the Florida Legislature in 2003

amended section 627.739(2) to require:

(2) . . . The deductible amount must be applied to 100 percent
of the expenses and losses described in s. 627.736. After the
deductible is met, each insured is eligible to receive up to
$10,000 in total benefits described in s. 627.736(1).

§ 627.739(2), Fla. Stat. (2003). 4 The obvious intent of the Legislature was to replace the

term “benefits otherwise due” with “expenses and losses” in determining what the

4 In its motion for summary judgment filed in the county court, Florida Hospital
relied on the 2003 Senate Staff Analysis and Economic Impact Statement to argue that
the intent of the 2003 amendments was to apply the deductible before reducing the
medical expenses pursuant to the statutory reimbursement limitations. Specifically, the
pertinent part of the staff analysis provides:

[The bill] [a]mends s. 627.739, F.S., relating to PIP deductibles, to change
the calculation of the PIP deductible to require that it must be applied to 100
percent of medical expenses, rather than to the current 80 percent of
expenses that PIP pays. This provision has the effect of requiring PIP to
pay more in benefits than it does now if a deductible is elected. For
example, under current law: $5,000 medical bill, PIP pays 80 percent, or
$4,000, minus $2,000 deductible = $2,000. Under this provision: $5,000
medical bill, minus $2,000 deductible, is $3,000. PIP pays 80 percent X
$3,000 = $2,400.

9
deductible would be applied to, moving the term “benefits” to the next sentence, which

discusses the insurer’s liability after the deductible is satisfied. Thus, the current version

of the statute provides a clear distinction between “expenses and losses” for purposes of

applying the deductible and “benefits” that are due to the insured after the reimbursement

limitations are applied.

The legislative amendment in 2003 constituted a substantive change in the

sequence of applying the deductible in PIP cases. The Legislature, by requiring that the

deductible be applied to 100% of the expenses and losses, abandoned the previous

methodology of subtracting the deductible from the benefits due under the policy after

applying the reimbursement limitations. Despite this legislative change in 2003,

Progressive and the dissent argue that the methodology advanced in the previous version

of section 627.739 (as interpreted by the Florida Supreme Court in Govani and Arnone)

should continue to be applied by the courts under the current version of the statute. We

do not believe that the Legislature would find it necessary to amend the statute as it did

in 2003 if, as Progressive and the dissent essentially argue, there was to be no change

Fla. S. Comm. on Banking & Ins., CS for SB 32-A (2003) Staff Analysis 16 (May 15, 2003).
We have not relied on this report in our analysis. We note it here because it confirms our
conclusion about how the deductible should be applied under section 627.739(2). See
Townsend v. R.J. Reynolds Tobacco Co., 192 So. 3d 1223, 1229 (Fla. 2016) (noting that,
after examining a staff analysis of the enacting law, “[a]lthough it is not necessary to delve
into the legislative history of section 55.03(3), Florida Statutes (2010), because the
language is clear and unambiguous, the legislative history nevertheless confirms our
reading of the statute”); Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, 368
(Fla. 2013) (“The legislative summary in a staff analysis regarding FDUTPA affords further
support for the principal [sic] . . . .”); Larimore v. State, 2 So. 3d 101, 109 n.4 (Fla. 2008)
(“This interpretation is confirmed by Senate staff analyses on chapter 99-222, Laws of
Florida . . . .”); G.G. v. Fla. Dep’t of Law Enf., 97 So. 3d 268, 273 (Fla. 1st DCA 2012)
(“Our decision does not rely on staff analyses. . . . The staff analyses support the position
advocated here by G.G., not FDLE.”).

10
in the methodology. As we have previously indicated, the Legislature does not intend to

enact useless legislation. See Dennis v. State, 51 So. 3d 456, 463 (Fla. 2010); Borden,

921 So. 2d at 595; State v. Goode, 830 So. 2d 817, 824 (Fla. 2002); Macchione v. State,

123 So. 3d 114, 119 (Fla. 5th DCA 2013).

The court in Govan noted that during the 1987 legislative session, the Legislature

failed to enact a bill that would change the methodology described in the prior version of

section 627.739(2). Similarly, it should be noted here that during the 2016 legislative

session, the Florida Legislature failed to enact a proposed bill that would amend section

627.739(2) to incorporate the methodology of subtracting the deductible amount after the

reimbursement limitations are used to determine the benefits due under the policy.

Specifically, the proposed amendment stated:

Section 5. Subsection (2) of section 627.739, Florida Statutes,
is amended to read:

627.739 Personal injury protection; optional limitations;
deductibles.—

(2) Insurers shall offer to each applicant and to each
policyholder, upon the renewal of an existing policy,
deductibles, in amounts of $250, $500, and $1,000. The
deductible amount must be applied to 100 percent of the
expenses and losses covered under personal injury protection
benefits coverage issued pursuant to described in s. 627.736.
If an insurer has elected to apply the schedule of maximum
charges authorized under this chapter, the amount of
expenses and losses applicable to the deductible will be
limited to 100 percent of such authorized reimbursement
limitations or fee schedules. After the deductible is met, each
insured is eligible to receive up to $10,000 in total benefits
described in s. 627.736(1). However, this subsection shall not
be applied to reduce the amount of any benefits received in
accordance with s. 627.736(1)(c).

11
Fla. SB 1036 (2016) (words stricken are deletions; words underlined are additions); see

also Fla. HB 659 (2016) (same). This amendment incorporates the same methodology

Progressive and the dissent argue should apply under the current version of section

627.739(2). The Legislature did not adopt this amendment.

The dissent labels this failed amendment a clarification of the current statute. If

the failed amendment is a clarification, the refusal of the Legislature to adopt it is a

declaration that it does not accurately express the meaning of the current version of

section 627.739(2) and indicates a rejection of the argument made by Progressive and

the dissent. But it is not a clarification. The thirteen-year span between enactment of the

current statute and introduction of the failed amendment establishes that it would have

been a substantive revision. See Parole Comm’n v. Cooper, 701 So. 2d 543, 544-45

(Fla. 1997) (“[I]t is inappropriate to use an amendment enacted ten years after the original

enactment to clarify original legislative intent.”); State Farm Mut. Auto. Ins. v. Laforet, 658

So. 2d 55, 62 (Fla. 1995) (“It would be absurd . . . to consider legislation enacted more

than ten years after the original act as a clarification of original intent . . . .”); Macchione,

123 So. 3d at 117. Moreover, the title to the bill incorporating the failed amendment

states:

An act relating to automobile insurance; . . . amending s.
627.739, F.S.,; revising applicability; providing a limitation to
an amount of expenses and losses applicable to a deductible
related to personal injury protection benefits under a certain
condition . . . .

Fla. SB 1036 (2016). The title of a proposed law may reveal whether the Legislature

intended to substantively change a statute or to clarify its provisions. See Hassen v. State

Farm Mut. Auto. Ins., 674 So. 2d 106, 109-10 (Fla. 1996); see also Earth Trades, Inc. v.

12
T & G Corp., 108 So. 3d 580, 585 (Fla. 2013); Kasischke v. State, 991 So. 2d 803, 809

(Fla. 2008); State v. Webb, 398 So. 2d 820, 825 (Fla. 1981) (“The title is more than an

index to what the section is about or has reference to; it is a direct statement by the

legislature of its intent.” (citation omitted)); Macchione, 123 So. 3d at 118. There is

nothing in this language indicating that the amendment was intended to be a clarification.

The “Unreasonable Bill” Argument Advanced by Progressive and the Dissent

Progressive and the dissent argue that the methodology they advance will ensure

that the medical provider does not render a bill for services that is unreasonable. The

reasonableness of the medical bills for services rendered to Parent in the instant case

was not contested in the trial court and is not an issue raised by any party. In any event,

we reject this argument for several reasons.

First, it overlooks the distinctions between a deductible and a statutory

reimbursement limitation, and it disregards the reason the Legislature approved the

applicable provisions. The deductible provisions of section 627.739(2) were enacted to

allow for reductions in the amount of the premiums charged by the insurer and to

determine the amount of risk through self-insurance the insured has agreed to assume.

See Mercury Ins. of Fla. v. Emergency Physicians of Cent., 182 So. 3d 661, 667 (Fla. 5th

DCA 2015). Coverage under the policy is not triggered until the deductible amount is

met. Id. On the other hand, once coverage is triggered under the policy, the statutory

reimbursement limitations provide a methodology for determining the amount of benefits

due to the insured. See Virtual Imaging, 141 So. 3d at 153 (explaining that the

reimbursement limitations enacted in 2008 “provided, in part, more specific guidelines

regarding a PIP insurer’s ability to limit reimbursements” (emphasis added)). As this court

13
explained in Mercury Insurance, “[t]he meeting of the contracted-for deductible unlocks

the insured’s right to access his/her $10,000 in PIP benefits.” 182 So. 3d at 667. This

court further explained:

This interpretation is consistent with the recognized purpose
of a deductible. As was noted in General Star Indemnity
Company v. West Florida Village Inn, Inc., 874 So. 2d 26, 33-
34 (Fla. 2d DCA 2004):

A “deductible” is “a clause in an insurance policy that
relieves the insurer of responsibility for an initial
specified loss of the kind insured against.” Merriam-
Webster’s Collegiate Dictionary 471 (deluxe ed. 1998).

....

“Generally, the functional purpose of a deductible,
which is frequently referred to as self-insurance, is to
alter the point at which an insurance company’s
obligation to pay will ripen.” Int’l Bankers Ins. Co. v.
Arnone, 552 So. 2d 908, 911 (Fla. 1989).

Thus, an insured enters into a contract with an insurance
company and agrees to be subject to a deductible in
exchange for a reduced monthly premium. In effect, the
insured agrees to “self-insure” for the deductible amount.
Where an accident occurs, the insured (not the insurer)
becomes responsible for payment of claims that are otherwise
impacted by the deductible amount in the insurance policy.

Id. We do not believe that the Legislature intended the statutory reimbursement

limitations to be applied to expenses and losses that fall within the insured’s deductible,

which the insured alone is obligated to pay and which are not recoverable as benefits

under the policy.

Second, the insured certainly has the right to contest any bill that the insured is

required to pay to meet the deductible. The Legislature has provided that an “insured is

not required to pay a claim or charges . . . [t]o any person who knowingly submits a false

14
or misleading statement relating to the claim or charges.” § 627.736(5)(b)1., Fla. Stat.

(2014). Moreover, medical care providers are prohibited from rendering any bill for

services that is false or fraudulent, and those that do may suffer severe criminal and civil

penalties. See § 817.234(1)(a), Fla. Stat. (2014). Section 817.234 also prohibits a

medical care provider from rendering a bill it does not intend to collect from the insured

in order to meet the deductible amount and trigger coverage under the policy. §

817.234(7)(a), Fla. Stat. (2014) (“It shall constitute a material omission and insurance

fraud . . . for any service provider, other than a hospital, to engage in a general business

practice of billing amounts as its usual and customary charge, if such provider has

agreed with the insured or intends to waive deductibles or copayments, or does not for

any other reason intend to collect the total amount of such charge.”).

Third, it bears repeating that the provisions of the No-Fault Law must be construed

in favor of the insured. Interpreting the pertinent statutory provisions in a manner that

supports the methodology urged by Progressive and the dissent would not further the

principle of providing broad PIP coverage to the insured. Rather, as established by the

calculation made by Progressive in its benefits payment (which is discussed at the

beginning of this opinion), that interpretation would allow the insurer to pay less in

benefits than would otherwise be due.

Finally, the dissent bases its argument on a quote from the decision in Garrison,

23 Fla. L. Weekly Supp. at 708a. The quote states that several sections in 627.736,

which are specifically cited by the Garrison court, refer to expenses “covered by the

policy.” We believe this decision is flawed because not one of the provisions of section

627.736 cited by the court in Garrison contains the language “covered by the policy.” In

15
any event, there are an equal number of circuit court opinions that reach the opposite

result, and we believe they are the better reasoned decisions.

Conclusion

We conclude that application of the methodology advanced by Progressive and

the dissent would require that we revert to the provisions of section 627.739(2) that were

in effect before the 2003 amendment. It is not for this court to pick and choose which

version of the statute to apply; we must apply the law as it currently exists. Section

627.739(2) currently requires that the deductible be applied to 100% of the expenses and

losses, and that is the version the circuit court properly applied. We see no divergence

from the correct law in the circuit court’s decision, and we see no violation of a clearly

established principle of law that results in a miscarriage of justice. Accordingly, we deny

the petition for writ of certiorari.

DENIED.

EDWARDS, J., concurs.
PALMER, J., dissents, with opinion.

16
PALMER, J., dissenting. 5D16-2333

I respectfully dissent.

As the circuit court for the Eighteenth Judicial Circuit observed in Garrison Property

and Casualty Insurance Co. v. New Smyrna Imaging, LLC:

As an initial step under s. 627.739(2), the insurer must first
determine what are the “expenses and losses described in s.
627.736,” in order to apply the deductible to 100% of those
expenses and losses. Section 627.736 contains several
references to expenses, almost all of which are described as
or used in the context of reasonable expenses or expenses
“covered by the policy.” Section 627.736(1)(a), (1)(b), & (6)(b),
Fla. Stat. (footnote omitted). Thus, when read together,
section 627.739 and section 727.736 require that a PIP
deductible be applied to 100% of the reasonable and
necessary medical expenses, or those expenses covered by
the policy.

23 Fla. L. Weekly Supp. 708a (Fla. 18th Cir. Ct. Jan. 12, 2015). Section 627.739(2)’s

references to section 627.736 necessarily include references to the reimbursement

limitation of section 627.736(5)(a)1.b. and, therefore, “100 percent of the expenses . . .

described in s. 627.736” includes the reimbursement limitation set forth in the current

section 627.736(5)(a)1.b.

The majority concludes that “medical expenses” are not the same as “medical

benefits” under the PIP statute. I disagree. Medical expenses covered under PIP are

limited to those services and expenses which are reasonable and necessary. See Geico

Gen. Ins. Co. v. Virtual Imaging Serv. Inc., 141 So. 3d 147 (Fla. 2013). Under the

majority’s interpretation of section 627.739(2), the deductible could be applied to a charge

that is unreasonably high and thus not covered by PIP. “The notion that a deductible could

be applied to loss that is not covered by the policy is fundamentally unreasonable.” Gen.

Star Indem. Co. v. W. Fla. Vill. Inn, Inc., 874 So. 2d 26, 33 (Fla. 2nd DCA 2004).

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 The majority relies on the fact that the Legislature failed to enact a proposed law

in 2016 that explicitly recognized the calculation method propounded by Progressive as

evidence that that calculation method is not supported by the current law. However, the

Bill Analysis and Fiscal Impact Statement for that bill explained that the proposed

amendment sought to “clarify that the PIP deductible applies to expenses and losses

covered under PIP benefits and coverage.” Fla. S. Bill Analysis & Fiscal Impact

Statement of Jan. 25, 2016, § 5 for Bill SB 1036, p. 5. The use of the word “clarify”

indicates that the proposed language was consistent with the current state of the law.

I would grant the petition for certiorari and quash the circuit court’s order.

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