<< Return to Results List

PIP Insurer Permitted to Litigate Reasonableness of Charges

Betsy E. Gallagher and Michael C. Clarke | July 3, 2016

In a certiorari proceeding before Florida's Fifth District Court of Appeal, Betsy Gallagher and Michael Clarke of Kubicki Draper's Tampa office, were successful in obtaining an opinion which will assist no-fault insurers in defending law suits filed seeking payment of personal injury protection benefits. In Progressive Select Ins. Co. v. Emergency Physicians of Cent. Fla., No. 5D16-253 (Fla. 5th DCA Sept. 16, 2016), the Court reviewed facts showing that Progressive had reimbursed the medical provider for its services at "eighty percent of 200 percent of the allowable amount under the Medicare Part B fee schedule" even though it did not specifically elect to use the fee schedule in its insurance policy. The Court reasoned that while Progressive was not entitled to rely on the fee schedule limitation within section 627.736 (5)(a)2.f., Fla. Stat., under the holding of GEICO Gen. Ins. Ins. Co. v. Virtual Imaging Services., 141 So.3d 147 (Fla. 2013), it held that the failure to elect to use the fee schedule limitation in its policy did not preclude Progressive "from having an opportunity to litigate the reasonableness of [the medical provider's] bill under section 627.736(5)(a)1., Florida Statutes (2008)." In short, the Fifth District held that even where an insurer has made an insufficient election under its policy and paid at eighty percent of 200 percent of the allowable amount under the Medicare Part B fees schedule, in accordance with section 627.736 (5)(a)2.f., Fla. Stat., the insurer does not lose its fundamental right to defend that the charge was not reasonable under section 627.736(5)(a)1., Fla. Stat. including the consideration of "various federal and state medical fee schedules applicable to automobile and other insurance coverages."

Note that the opinion is not final until the time for rehearing expires and if such a motion is filed, determined. Upon finality this opinion will be controlling on all Florida circuit and county courts as, at this time, it is the only district court level authority on the issue.



Miami Office

25 West Flagler Street, Penthouse
Miami, FL 33130

T: 305.374.1212 F: 305.374.7846

view location | map location


Key West

Key West Office

402 Applerouth Lane, Suite 2C
Key West, FL 33040

T: 305.509.7300 F: 305.374.7846

view location | map location
Ft. Lauderdale

Ft. Lauderdale Office

One East Broward Boulevard, Suite 1600
Fort Lauderdale, FL 33301

T: 954.768.0011 F: 954.768.0514

view location | map location
West Palm Beach

West Palm Beach Office

515 North Flagler Drive, Suite 1800
West Palm Beach, FL 33401

T: 561.640.0303 F: 561.640.0524

view location | map location

Indian River | Martin | Okeechobee | Palm Beach | Saint Lucie


Tampa Office

400 North Ashley Drive, Suite 1200
Tampa, FL 33602

T: 813.204.9776 F: 813.204.9660

view location | map location
Hernando | Hillsborough | Manatee | Pasco | Pinellas | Polk | Sarasota

Orlando Office

201 South Orange Avenue, Suite 475
Orlando, FL 32801

T: 407.245.3630 F: 407.245.7685

view location | map location
Brevard | Highlands | Orange | Osceola | Seminole

Ocala Office

101 Southwest 3rd Street
Ocala, FL 34471

T: 352.622.4222 F: 352.622.9122

view location | map location
Alachua | Citrus | Dixie | Gilchrist | Lake | Levy | Marion | Putnam | Sumter | Volusia

Jacksonville Office

76 South Laura Street, Suite 1400
Jacksonville, FL 32202

T: 904.396.0062 F: 904.396.0380

view location | map location
Baker | Bradford | Clay | Columbia | Duval | Flagler | Hamilton | Lafayette | Madison | Nassau | Saint Johns

Pensacola Office

125 West Romana Street, Suite 550
Pensacola, FL 32502

T: 850.434.0003 F: 850.434.0223

view location | map location

Escambia | Holmes | Okaloosa | Santa Rosa | Walton


Tallahassee Office

1705 Metropolitan Boulevard, Suite 202
Tallahassee, FL 32308

T: 850.222.5188 F: 850.222.5108

view location | map location

Bay | Calhoun | Franklin | Gadsden | Gulf | Jackson | Jefferson | Leon | Liberty | Wakulla | Washington

Ft. Myers

Ft. Myers Office

13350 Metro Parkway, Suite 401
Fort Myers, FL 33966

T: 239.334.8403 F: 239.939.0700

view location | map location

Charlotte | Collier | DeSoto | Glades | Hardee | Hendry | Lee


Mobile Office

11 North Water Street, Suite 10290
Mobile, Alabama 36602

T: 251.308.3351 F: 251.308.3352

view location | map location

hover over location name to preview, or click it for full details

Our Firm


In 1963, Gene Kubicki founded the firm based on dedication to excellence. The same high standards have been maintained for over five decades -- years which have seen the firm’s ranks swell to over 100 attorneys.


Our team knows return clients are the life blood of any law firm and this is why we ensure client satisfaction by an exacting attention to service and quality.  Client service coupled with a spectacular work ethic, makes our team hard to beat... Literally!

find an attorney


In response to the growing needs of its clients, the firm began expanding in the early 1980's and today is a diverse full-service law firm providing trial, appellate, coverage, commercial and real estate transaction services.

browse our practice areas


Kubicki Draper enjoys a national reputation for expertise in the handling of complex, high stakes litigation matters, as well as, appellate, general commercial and real estate practice.

preview our results


With a dozen offices throughout the State of Florida and other key points in the southern parts of Georgia, Alabama and Mississipi, our firm is familiar to every venue statewide and will never get home-teamed.

find the location near you