GEICO INDEMNITY COMPANY v. MURANSKY CHIROPRACTIC P.A. a/a/o CARLOS DIESTE

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

GEICO INDEMNITY COMPANY,
Appellant,

v.

MURANSKY CHIROPRACTIC P.A. a/a/o CARLOS DIESTE,
Appellee.

No. 4D21-457

[June 24, 2021]

Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Betsy Benson, Judge; L.T. Case Nos. CACE19-6279 and
COCE17-6312.

Michael A. Rosenberg, Peter D. Weinstein and Thomas L. Hunker of
Cole, Scott & Kissane, P.A., Plantation, for appellant.

Mac S. Phillips of Phillips | Tadros, P.A., Fort Lauderdale, for appellee.

DAMOORGIAN, J.

Geico Indemnity Company (“Geico”) appeals the county court’s order
denying its motion for summary judgment and entering summary
judgment in favor of Muransky Chiropractic P.A. (“Provider”). Geico
challenges the final judgment on the following grounds: (1) the court
fundamentally erred in entering summary judgment in Provider’s favor
where Provider never moved for summary judgment; (2) the court based
its decision on a now vacated federal district court decision; and (3) the
court misinterpreted the insurance policy by concluding that Geico was
obligated to pay 100% of Provider’s billed amounts. For the reasons stated
below, we affirm.

Background

The underlying case arose when Carlos Dieste (“the insured”) was
injured in a car accident and sought medical treatment from Provider.
In order to receive treatment, the insured assigned his rights to receive PIP
benefits under his policy with Geico to Provider. Provider subsequently
sent its bills to Geico, but Geico only paid 80% of the billed amounts.
 In 2017, Provider filed a complaint for breach of contract and
declaratory relief. In the declaratory relief claim, Provider alleged that it
billed Geico for an amount less than 80% of the schedule of maximum
charges and that Geico must pay the entirety of those charges “without
taking any further reductions or copayment; or alternatively pay 80% of
200% of the Medicare Part B participating fee schedule amount.” In
support thereof, Provider referenced a personal injury protection
amendment (“FLPIP Amendment”) to GEICO’s policy (“the policy”) which,
in relevant part, stated: “[a] charge submitted by a provider, for an amount
less than the amount allowed above, shall be paid in the amount of the
charge submitted.” Geico answered the complaint and raised as an
affirmative defense that it paid the billed amounts in full pursuant to
section 627.736(5)(a)2., Florida Statutes, and “the new/amended policy of
insurance issued.”

Although Provider never moved for summary judgment, Geico filed a
“response to summary judgment” and moved for summary judgment itself.
In its motion, Geico “agree[d] that because [Provider’s] charge was lower
than the fee schedule rate, it was allowed at the charged amount,” but
argued that the 20% coinsurance still applied. In support thereof, Geico
referenced a document titled as follows:

IMPORTANT NOTICE

FEE SCHEDULE ENDORSEMENT
USE OF MEDICAL FEE SCHEDULE FOR PERSONAL INJURY
PROTECTION CLAIMS
THIS NOTICE IS ENCLOSED IN COMPLIANCE WITH FLORIDA
STATUTE 627.736

Effective January 1, 2013

This notice (“the M608 Notice”) was presumably sent to the insured when
the policy was issued. 1 The M608 Notice states that Geico will “limit
reimbursement of medical expenses to 80 percent of a properly billed
reasonable charge, but in no event will [Geico] pay more than 80 percent
of the following schedule of maximum charges.” Notably, the M608 Notice
does not say that it is part of the policy and the declarations page of the
policy does not list it as an amendment or endorsement to the policy.

————————————————————————————————————
1 It is unclear whether the notice was attached to the policy or sent to the
insured separately.

2
 The court ultimately entered final summary judgment in favor of
Provider, reasoning:

The parties stipulated that there are no facts in dispute, and
the sole issue presented to the Court for adjudication is
whether Geico was obligated to pay 80% [o]r 100% of the
charges at issue. For the reason set forth below, Geico was
obligated to pay 100% of the charges that are less than 200%
of the allowable amount under participating physicians fee
schedule of Medicare Part B. Accordingly, [Provider’s] Motion
for Summary Judgment is GRANTED and final judgment is
hereby entered in [Provider’s] favor.

In so holding, the court based its decision in part on A&M Gerber
Chiropractic LLC v. Geico General Insurance Co. (Gerber I), 291 F. Supp. 3d
1318 (S.D. Fla. 2017). In that class action suit, the Southern District held
that the M608 Notice was not an endorsement or amendment to the policy
and that Geico was required to pay the entirety of billed amounts which
are less than 200% of the fee schedule. Id. at 1339–44. Given the identity
of the issues and the parties, and the dispositive nature of the legal issue
that was decided in Gerber I, the county court concluded that the parties
fell within the class definition and that the Gerber I ruling was binding on
its decision. The court then entered summary judgment in Provider’s favor
in the amount of $360 plus interest.

This appeal follows.

Analysis

“A trial court’s order entering final summary judgment is reviewed de
novo.” Hale v. State Farm Fla. Ins. Co., 51 So. 3d 1169, 1171 (Fla. 4th
DCA 2010). Likewise, because one of the questions presented on appeal
requires this Court to interpret provisions of the PIP statute as well as
Geico’s insurance policy, our standard of review is de novo. Allstate Ins.
Co. v. Orthopedic Specialists, 212 So. 3d 973, 975 (Fla. 2017). Finally, to
the extent Geico raises an unpreserved fundamental error argument, we
also apply the de novo standard. State v. Smith, 241 So. 3d 53, 55
(Fla. 2018).

a) Whether fundamental error occurred?

Geico first argues that the court fundamentally erred by entering
judgment in Provider’s favor where Provider never moved for summary
judgment. Under normal circumstances, we would agree with Geico.

3
See Levin v. Kleeman, 229 So. 3d 1290, 1291 (Fla. 5th DCA 2017)
(“The trial court erred in granting summary judgment when no motion for
summary judgment was pending.”). In the present case, however, Geico
filed a response to Provider’s non-existent motion for summary judgment
and argued therein, as it did in its own motion for summary judgment,
that it was only required to pay 80% of the billed amounts. Thus, and
although we acknowledge that no motion appears in the record, Geico was
nonetheless on notice and had the opportunity to respond. Cf. Ness
Racquet Club, LLC v. Ocean Four 2108, LLC, 88 So. 3d 200, 202 (Fla. 3d
DCA 2011) (“Where a party has not filed a summary judgment motion or
where no notice or opportunity to be heard has been given to the opposing
side to present opposing affidavits, a trial court may not sua sponte grant
summary judgment in favor of the non-movant.”).

It is worth noting that in its own motion for summary judgment, Geico
alleged no material facts were in dispute and the only legal issue for the
court to resolve was whether Geico was required to pay the billed amounts
in full or 80% of the billed amounts. Cf. id. at 202–03 (sua sponte entry of
summary judgment in favor of non-movant is especially disfavored when
issues of fact remain). This was the same legal issue presented in
Provider’s complaint. In other words, this is not a situation where
summary judgment was entered on a legal basis that was not before the
court. Cf. Hall v. Marion Cnty. Bd. of Cnty. Comm’rs, 236 So. 3d 1147,
1153 (Fla. 5th DCA 2018) (error to sua sponte enter summary judgment
in favor of non-movant on a claim that was not properly before the court).
In sum, because Geico ultimately had a “full and fair opportunity to meet
the proposition that there is no genuine issue of a material fact,”
fundamental error did not occur. Id. at 1153–54 (citation omitted).

b) Whether Gerber I applies?

Geico next argues that Gerber I was vacated after the county court
entered its order and has no application to the instant case. See A&M
Gerber Chiropractic LLC v. Geico Gen. Ins. Co. (Gerber II), 925 F.3d 1205,
1216 (11th Cir. 2019). In Gerber II, the Eleventh Circuit vacated the
Southern District’s decision in Gerber I for lack of standing. Id. (declining
to reach the merits as to whether Geico’s policy requires 100%
reimbursement for billed amounts below the statutory fee schedule).
We agree with Geico that Gerber I has no application to the instant case in
light of Gerber II. Nonetheless, as will be illustrated below, the court’s
conclusion that Geico was required to pay 100% of the billed amounts was
correct. Accordingly, we need not reverse on this basis.

4
 c) Whether coinsurance applies?

Geico lastly argues that the court misinterpreted the PIP statute and
policy by concluding that Geico was required to pay 100% of Provider’s
billed amounts and that coinsurance did not apply. Specifically, Geico
argues that the Florida PIP statute requires it to pay only 80% of billed
amounts unless Geico expressly waives this requirement. Moreover, Geico
argues that when read together, the M608 Notice and the FLPIP
Amendment limit reimbursement to 80% of billed amounts, regardless if
the billed amounts are less than 80% of the fee schedule.

“In interpreting an insurance contract, we are bound by the plain
meaning of the contract’s text.” State Farm Mut. Auto. Ins. Co. v. Menendez,
70 So. 3d 566, 569 (Fla. 2011). If the text is “plain and unambiguous,” we
“must interpret the policy in accordance with the plain meaning of the
language used so as to give effect to the policy as it was written.”
Id. at 569–70 (quoting Travelers Indem. Co. v. PCR, Inc., 889 So. 2d 779,
785 (Fla. 2004)). In doing so, we consider whether the policy was
“amplified, extended, or modified by any application therefor or any rider
or endorsement thereto.” § 627.419(1), Fla. Stat. (2017); see also Geico
Gen. Ins. Co. v. Virtual Imaging Servs., 141 So. 3d 147, 157 (Fla. 2013)
(holding that for an exclusion or limitation “to be enforceable, the insurer
must clearly and unambiguously draft a policy provision to achieve that
result”).

We first address Geico’s argument that section 627.736, Florida
Statutes (2017), mandates coinsurance on all billed amounts unless an
insurance company expressly waives it.

The Florida PIP statute authorizes insurers to limit reimbursement to
80% of an amount set by a fee schedule, see § 627.736(5)(a)1.a.–f., by
electing to do so in its policy, see § 627.736(5)(a)5. Specifically,
subparagraph 1. of section 627.736(5)(a) states:

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

....

f. For all other medical services, supplies, and care, 200
percent of the allowable amount under:

(I) The participating physicians fee schedule of Medicare Part
B....

5
§ 627.736(5)(a)1., Fla. Stat. Subparagraph 5. further provides that:

5. An insurer may limit payment as authorized by this
paragraph only if the insurance policy includes a notice at the
time of issuance or renewal that the insurer may limit
payment pursuant to the schedule of charges specified in this
paragraph. A policy form approved by the office satisfies this
requirement. If a provider submits a charge for an amount
less than the amount allowed under subparagraph 1., the
insurer may pay the amount of the charge submitted.

§ 627.736(5)(a)5., Fla. Stat. (emphasis added).

In other words, under the PIP statute, if the billed amounts are less
than 80% of the fee schedule, the insurer may pay the billed amounts in
full or pay the 80% reimbursement rate of maximum charges. See Geico
Indem. Co. v. Accident & Inj. Clinic, Inc. (Irizarry), 290 So. 3d 980, 984
(Fla. 5th DCA 2019) (analyzing the PIP statute as a whole and concluding
that “the amount allowed under subparagraph 1” language in subsection
5. “necessarily encompasses 80% of the applicable fee schedule option”
and therefore “if the billed amount is less than 80% of the fee schedule
(the required amount an insurer must pay), the insurer may opt to pay the
lower billed amount in full”); Revival Chiropractic LLC v. Allstate Ins. Co.,
No. 6:19-cv-445-PGB-LRH, 2020 WL 2483583, at *4 (M.D. Fla. Mar. 5,
2020), appeal docketed, No. 21-10559 (11th Cir. 2021) (“For instance, if a
provider submits a bill for $100 and the amount allowed under the
Schedule for that service is $150, the insurer could reimburse the provider
$120 (80 percent of the amount allowed under the Schedule) or $100
(the Lesser Charge).”). Therefore, Geico’s argument that the statute
requires coinsurance to apply to all billed amounts is clearly erroneous as
the statute merely provides that an insurer may opt to limit
reimbursement to the typical 80% reimbursement rate. See
§ 627.736(5)(a)5., Fla. Stat. Kingsway Amigo Ins. Co. v. Ocean Health, Inc.,
63 So. 3d 63, 68 (Fla. 4th DCA 2011) (“An insurance company is not
precluded from offering greater coverage than that required by statute.”).

We next address whether Geico is obligated to pay 100% of Provider’s
billed amounts under the FLPIP Amendment. The FLPIP Amendment to
the policy provides in relevant part:

6
 PAYMENTS WE WILL MAKE
The Company will pay in accordance with the Florida Motor
Vehicle No Fault Law (as enacted, amended, or newly
enacted), and where applicable in accordance with all fee
schedules contained in the Florida Motor Vehicle No Fault
Law, to or for the benefit of the injured person:

(A) Eighty percent (80%) of medical benefits which are
medically necessary, pursuant to the following
schedule of maximum charges contained in the Florida
Statutes 627.736(5)(a)1., (a)2., and (a)3.:

....

6. For all other medical services, supplies, and care,
200 percent of the allowable amount under:
(I). The participating physicians’ fee schedules
of Medicare Part B . . .

....

A charge submitted by a provider, for an amount less
than the amount allowed above, shall be paid in the
amount of the charge submitted.

(third emphasis added).

As demonstrated in the FLPIP Amendment’s plain language, the policy
does not mandate the insured to pay coinsurance when the provider has
billed “for an amount less than the amount allowed above.” (emphasis
added); see Menendez, 70 So. 3d at 569–70. Rather, the policy indicates
Geico’s promise to pay certain charges “in the amount of the charge
submitted,” i.e., 100% of billed amounts less than the 80% reimbursement
rate. Additionally, if 20% coinsurance were applicable under this clause,
it “would render § 627.736(5)(a)[5.] unnecessary and meaningless because
common sense dictates that no insurer would ever pay the full amount of
[billed amounts] as provided under § 627.736(5)(a)[5.], if it could, as
[the insurer] argues, pay only 80 percent of [billed amounts].” Revival
Chiropractic LLC, 2020 WL 2483583, at *5.

We next address Geico’s argument that the M608 Notice limits
reimbursement to 80% of billed amounts. As an initial matter, the M608
Notice was likely not incorporated into the policy. As noted in the facts,
the record is unclear whether the M608 Notice was attached to the policy

7
or separately sent to the insured. See 2 Couch on Insurance § 18:19
(3d ed. 2005) (an endorsement is “a writing added or attached to a policy
or certificate of insurance which expands or restricts its benefits or
excludes certain conditions from coverage”). Moreover, the M608 Notice
does not contain language that it was intended to be an endorsement to
the policy. For example, unlike the FLPIP Amendment which states that
it is replacing another section of the policy, the M608 Notice refers to the
policy as a separate document where it states “Personal Injury Protection
Coverage is subject to the terms, conditions and exclusions in your policy.
Please read your policy carefully.” Thus, no language indicates Geico’s
intent for the M608 Notice to modify the policy. Cf. Gotham Ins. Co. v. W.
Coast Fire. Prot. Corp., 752 F. Appx. 793, 797 (11th Cir. 2018) (“Because
the parties plainly expressed in the endorsement that it modifies the
policy, we must treat it as part of the policy. To interpret the policy not to
include the . . . [e]ndorsement would render the endorsement entirely
meaningless and run afoul of the Florida Supreme Court’s instruction that
we must ‘endeavor[] to give every provision its full meaning and operative
effect.’” (alteration in original) (quoting Auto-Owners Ins. v. Anderson, 756
So. 2d 29, 34 (Fla. 2000))). Moreover, the policy’s declarations page does
not contain any reference to the M608 Notice but specifically mentions the
FLPIP Amendment. See 2 Couch on Insurance § 18:19 n.6 (“Endorsement
preclud[ed] coverage . . . where physically attached to the policy when
delivered to the insured and the endorsement stated that it formed a part
of the policy, and the declarations on the policy face referred to the
endorsement.” (citing Anderson v. Aetna Cas. & Sur. Co., 432 S.W.2d 151
(Tex. Civ. App. 1968))). Based on the above distinctions, Geico failed to
incorporate the M608 Notice into the policy as nothing indicates that the
M608 Notice was intended to modify the policy.

At any rate, even if we were to consider the M608 Notice, it would not
support Geico’s argument. Primarily, the M608 Notice does not state that
Geico will pay 80% of billed amounts less than the 80% reimbursement
rate. See Menendez, 70 So. 3d at 569–70. If any such interpretation were
possible, it would conflict with section 627.736(5)(a)5.’s purpose.
See Hernandez v. Crespo, 211 So. 3d 19, 25 (Fla. 2016) (“Contractual
provisions which contravene a statute or legislative intent are injurious to
the public good, violate public policy, and are therefore unenforceable.”);
Irizarry, 290 So. 3d at 983 (“[I]f the billed amount is less than 80% of the
fee schedule (the required amount an insurer must pay), the insurer may
opt to pay the lower billed amount in full.” (emphasis in original) (citing
section 627.736(5)(a)5., Fla. Stat.)). All the M608 Notice does is reaffirm
what is provided for in the policy and PIP statute.

8
 In sum, Geico is unable to point to policy language indicating that 20%
coinsurance applies to billed amounts below the 80% reimbursement rate.
See Virtual Imaging Servs., 141 So. 3d at 157. Accordingly, we affirm
because the policy’s plain language indicates that Geico is obligated to pay
100% of Provider’s billed amounts. 2 See Menendez, 70 So. 3d at 569–70.

Affirmed.

WARNER and KUNTZ, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

————————————————————————————————————
2 We do not comment on whether the result would have been the same had
Geico contested Provider’s billed amounts. Namely, Geico moved for summary
judgment traveling under Provider’s theory that it billed under the 80%
reimbursement rate. The trial court’s judgment more broadly held that Geico
was 100% responsible for billed amounts below 200% of the statutory fee
schedule. This conclusion was technically correct as an amount below 200%
necessarily incorporates an amount below 80%. Additionally, while Geico did not
agree with the trial court’s ultimate holding, it “agreed on the language in the
proposed Final Judgment.” In other words, we make no determination as to what
the result would have been had Geico contested billed amounts under the 200%
of the statutory fee schedule but above the 80% reimbursement rate.

9