Fort Lauderdale West Partner Receives Several Appellate Victories

Orlando Partner Michael Rosenberg has had a string of recent appellate victories. 

In the first case, he obtained a written opinion from the Fifth District Court of Appeal affirming the trial court’s final judgment determining that a PIP insurer properly paid a medical provider for services rendered after an automobile accident. The medical provider argued that the PIP insurer underpaid two charges by one cent each, claiming the PIP insurer should have paid 80% of each individual item rather than 80% of the entire bill. The Fifth District soundly rejected each of the medical provider’s arguments raised on appeal, holding that “the plain language of the statute simply requires reimbursement at 80% of the maximum charge….”

In the second case, he received a per curiam affirmance with citations in favor of a Florida PIP insurer against a medical provider. The trial court granted summary judgment in favor of the PIP insurer on the basis that the insured had made a material misrepresentation during the insurance application process. During the course of the investigation of the PIP claim, the PIP insurer determined that its applicant had not disclosed prior accidents and that the PIP insurer would not have provided insurance had it known about those prior incidents.

On appeal, the medical provider argued the trial court applied the incorrect law. The Third District rejected the medical provider’s appellate argument, noting that both statute and case law impose a duty on an insured to learn the contents of an application for signing it.

In the third case, he obtained a per curiam affirmance in favor of a Florida PIP insurer against a medical provider. The trial court granted summary judgment in favor of the PIP insurer, determining that the PIP insurer properly reimbursed the medical provider. On appeal, the medical provider argued that it was owed 23 cents—that it had been underpaid, by a fraction of a penny, twenty-three times.

Mr. Rosenberg argued not only that any alleged underpayment was de minimus, but also that the Florida PIP insurer had properly followed Florida’s PIP statute to properly reimburse 80% of the total reimbursable amount rather than 80% of each individual charge. In sum, the Fifth District Court of Appeal rejected the medical provider’s rounding argument and affirmed the judgment in favor of CSK’s client.

Finally, he recently obtained an opinion from the Fifth District Court of Appeal reversing a trial court’s final judgment in favor of a medical provider with instructions to the trial court to enter judgment in favor of CSK’s client, a Florida PIP insurer.

Known more commonly as the “Billed Amount” issue, Florida PIP insurers have been subject to tens of thousands of lawsuits where medical providers argue that charges for medical procedures that billed in an amount less than the schedule of maximum charges must be reimbursed at either 100% of the amount charged 80% of the schedule of maximum charges. In these cases, the PIP insurer reimbursed 80% of the amount charged by the provider, arguing that its PIP policy permits the insurer to reimburse 80% of a reasonable charge.

Mr. Rosenberg has been a passionate advocate for the insurance industry on the Billed Amount issue (and many other legal issues) since the argument first surfaced from the Plaintiff’s bar. Mr. Rosenberg argued that, consistent with Florida law, that after the 2012 amendment to the PIP statute, Florida PIP insurers are permitted to issue a policy that provides for reimbursement to a medical provider of 80% of a reasonable charge, not to exceed the schedule of maximum charges. The Fifth District Court of Appeal, citing to the recent Florida Supreme Court decision, concluded that the PIP insurer correctly reimbursed the medical provider consistent with the terms of the insurance policy and that summary judgment was due to be entered in favor of the insurance company upon remand of the case. This is a significant win for the PIP industry and provides clarity to Florida trial courts on the permissible use of hybrid insurance policies.