OMNIBUS ORDER ON MOTIONS FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court on Defendant’s Motion for Summary Judgment [DE 44], filed herein on December 12, 2015, and Plaintiff South Florida Wellness, Inc.’s Motion for Partial Summary Judgment and Memorandum of Law in Support [DE 48], filed herein on December 12, 2015 (collectively, the “Motions”). The Court has carefully rеviewed the Motions [DE 44, 48], the parties’ briefs, and the record. The Court is otherwise fully advised in the premises.
I. BACKGROUND
Plaintiff South Florida Wellness, Inc. a/a/o Florencio Sanchez (“SFW”) brings this action on behalf of itself and all others similarly situated under Rule 1.220 of the Florida Rules of Civil Proсedure and Florida Statutes Chapter 86 against Defendant Allstate Insurance Company (“Allstate”).
i. Florida No-Fault Statute
Florida has adopted a “no-fault” statutory system for automobile insurance. The
On January 1, 2008, a new version of the statute took effect, encomрassing changes to § 627.736, concerning calculation and reimbursement of PIP claims. [DE 49 ¶ 6]. Subsection (5)(a)(l) of the statute provides that medical providers may not charge more than “a reasonable amount ... for the services and supplies rendered” аnd that “in no event, however, may such a charge be in excess of the amount the person or institution customarily charges for like services or supplies. With respect to a determination of whether a charge ... is reasonable, consideration may be given to evidence of the usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages,’ and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.” § 627.736, Fla. Stat. (2008) (“Subsection 5(a)(1)”). The 2008 statute added a provision which рrovided that PIP insurers “may limit reimbursement” to 80% of a schedule of maximum charges set forth in the statute. § 627.736(5)(a)(2), Fla. Stat. (2008) (“Subsection 5(a)(2)”). The Florida Supreme Court has ruled that, with respect to PIP policies issued after January 1, 2008, insurance companies must provide notiсe in their policies of an election to use the fee schedules should the insurers choose to use the fee schedules as a basis for calculating reimbursements as provided by Subsection 5(a)(2). Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc.,
ii. The Allstate Insurance Policy
In 2008, Allstate amended its policy forms to state 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.
[DE 47 ¶ 1],
SFW seeks declaratory judgmеnt that, in part, the Policy fails to clearly and unambiguously limit reimbursement with the provisions of Subsection 5(a)(2) and incorporate the provisions of Subsection 5(a)(2). [DE 1-3 at 15],
The parties have filed cross-motions for summary judgment [DE 44, 48], which are fully briefed and ripe for judicial review. The Court conducted a hearing on the Motions on February 3, 2015. See [DE 58], SFW seeks partial summary judgment as to Count I for Declaratory Relief, reserving the issue of damages. Allstate seeks summary judgment in its favor and dismissal of the action with prejudice. The overarching question posed by the Motions is: did Allstate provide the requisite notice that it would use the fee schedule payment limitations authorized by Subsection 5(a)(2)?
Under Rule 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any materiаl fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears “the stringent burden of establishing the absence of a genuine issue of material fact.” Sauve v. Lamberti,
“A fact is material for the purposes of summary judgment only if it might affect the outcomе of the suit under the governing law.” Kerr v. McDonald’s Corp.,
III. DISCUSSION
While the issue before the Court has not yet been squarely addressed by the Florida Supreme Court, it has been fiercely litigated in Florida lower courts and some federal courts interpreting Florida law. Both parties have buttressed their positions with an array of other courts’ decisions on this precise question, which the Court has carefully considered.
i. Virtual merely requires notice.
Both parties root their arguments in Virtual, the most relevant Florida Supreme Court case. Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc.,
In Virtual, the Defendant insurance company, Geico General Insurance Company (“Geico”), limited reimbursements in accordance with the fee schedule implicated in Subsection 5(a)(2), though “the pоlicy did not reference the permissive fee sched
While the Virtual court made clear that notice is required, the court did not provide specific instructions as to how that notice should read in order to be sufficient. Allstate argues that in changing the certified question in Virtual, the Florida Supreme Court indicated that only simple notice, rather than detailed and specific language electing the fee schedules is necessary. This Court notes that the Virtual opinion says nothing that would impоse upon insurers anything more than mere election to use fee schedules. Virtual simply requires that PIP insurance policies that fall under the 2008 statutory scheme provide notice if they wish to use the fee schedules. Allstate’s policy, in stating that “[a]ny amounts pаyable 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,” does just that.
ii. The Allstate Policy language at issue is not ambiguous.
Plaintiffs move through each word or phrase in the relevant policy language arguing that each provides a basis for the Court to find that the provision is ambiguous. First, SFW asserts that the “subject to” language indicates that “something might be the case, not that something is necessarily the case.” [DE 48 at 9]. However, the Court is not persuaded by Plaintiffs’ effort, and instead finds that the provision makes clear that the Subsection 5(a)(2) method of limiting reimbursements will be used. In stating that the amounts payable “shall be subject to any and all limitations ... including ... all fee schedules,”- Allstate leaves no wiggle room as to whether fee limitations may be utilized— both providers and insured are on notice that “all fee schedules” “shall” be applied, (emphasis added). SFW further argues that the “any and all limitations” language is ambiguous, suggesting that the Subsection 5(a)(1) fact-dependent method for calculating reasonable expenses is tantamount to a “limitation.” Subsection 5(a)(1) directs providers, not insurers, to charge reasonable rates. Therefore it is not an applicable “limitation” such that Místate, under its policy, would be permitted to choose between the fact-dependent and fee schedule methods for determining coverage. Finally, SFW reasons that the “including, but not limited to” language creates ambiguity because it suggests that the fee schedules referenced in Subsection 5(a)(2) represent just one of multiple possible applicable limitations. However, when read in conjunction with the actual applicable statute, it is clear that the only relevant limitation with resрect to determining reasonable PIP coverage for medical expenses are the fee schedules at issue.
iii. The Virtual opinion suggests, in dicta, that similar language would be sufficient notice.
Allstate asserts that the Virtual court, in dicta, did provide some indirect guidance as to what would constitute sufficient notice. In explaining the limitations of its holding, the Virtual court noted that the Geico policy “ha[d] since been amended to include an election of the Medicare fee schedules as the method of calculating reimbursements.” Virtual,
iv. Varying court interpretations of the Allstate Policy do not render it ambiguous.
SFW opines that, by virtue of the fact that multiple courts hаve ruled both ways on this issue, there are multiple interpretations of the policy language, rendering it ambiguous. That argument is unavailing. This Court, after thorough review, finds that the policy language provides clear and unambiguous notice. Because the Court dоes not find that the language is ambiguous, it need not address the parties’ arguments as to the proper way for the Court to construe ambiguity in an insurance contract such as the Allstate policy.
CONCLUSION
For the foregoing reasons, the Court finds that Allstate’s poliсy forms provide the requisite notice such that Allstate could limit its reimbursements according Subsection 5(a)(2).
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Plaintiff South Florida Wellness, Inc.’s Motion for Partial Summary Judgment and Memorandum of Law in Support [DE 48] is hereby DENIED;
2. Defendant’s Motion for Summary Judgment [DE 44] is hereby GRANTED; and
3. This action is hereby DISMISSED with prejudice; and
4. The Clerk is directed to CLOSE this case and DENY any pending motions as moot.