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.