               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                                IN THE DISTRICT COURT OF APPEAL
                                                OF FLORIDA
                                                SECOND DISTRICT

STATE FARM MUTUAL AUTOMOBILE                    )
INSURANCE COMPANY,                              )
                                                )
              Appellant,                        )
                                                )
v.                                              )      Case No. 2D16-4036
                                                )
MRI ASSOCIATES OF TAMPA, INC.,                  )
d/b/a PARK PLACE MRI,                           )
                                                )
              Appellee.                         )
                                                )

Opinion filed May 18, 2018.

Appeal from the Circuit Court for
Hillsborough County; Claudia Isom, Judge.

D. Matthew Allen of Carlton Fields Jorden
Burt, P.A.; Chris W. Altenbernd of Banker
Lopez Gassler P.A., Tampa; and Marcy
Levine Aldrich and Nancy A. Copperthwaite
of Akerman LLP, Miami, for Appellant.

David M. Caldevilla of de la Parte & Gilbert,
P.A.; Kristin A. Norse and Stuart C.
Markman of Kynes, Markman, Felman,
P.A.; Craig E. Rothburd of Craig E.
Rothburd, P.A., John V. Orrick, Jr., of the
Law Offices of John V. Orrick, P.L., Tampa,
and Scott R. Jeeves of Jeeves Law Group,
P.A., St. Petersburg, for Appellee.


SLEET, Judge.
              State Farm Mutual Automobile Insurance Company appeals the final

declaratory judgment denying its motion for summary judgment and entering final

judgment in favor of MRI Associates of Tampa, Inc., d/b/a Park Place MRI (Park Place).

The circuit court ruled that State Farm's Personal Injury Protection (PIP) policy failed to

clearly and unambiguously elect to limit reimbursement payments to the schedule of

maximum charges described in section 627.736(5)(a)(1)–(5), Florida Statutes (2013).

Because the express language of State Farm's PIP policy does clearly and

unambiguously elect to limit reimbursement payments for medical expenses to the

schedule of maximum charges, we reverse.

              The facts are undisputed in this case. This action arises from nineteen

individual PIP claims involving State Farm insureds who were injured in automobile

accidents in 2013, received MRIs from Park Place, and subsequently executed

assignments of benefits to Park Place. Park Place submitted the bills to State Farm

under the insureds' PIP policies, and State Farm paid portions of each of the nineteen

bills in accordance with its interpretation of its policy. Park Place disputed the amounts

paid by State Farm, and State Farm filed an action seeking a declaration of its rights

and obligations under its policy and the PIP statute, section 627.736. Park Place

countersued, seeking a declaration of its rights and obligations under the State Farm

policy and the PIP statute and an injunction to prevent State Farm from limiting its

payments for charges to the schedule of maximum charges.1



              1In their appellate briefs and at oral argument, the parties also disputed
whether the actual payments made by State Farm were in compliance with the schedule
of maximum charges limitation. However, by stipulation of the parties, the trial court's
summary judgment order was limited to the issue of whether State Farm's policy
"lawfully invokes the schedule of maximum charges . . . set forth in section


                                            -2-
             To calculate the amount payable to Park Place for the MRI charges at

issue, State Farm relied on the following language from its policy:

             We will pay in accordance with the No-Fault Act properly
             billed and documented reasonable charges for bodily injury
             to an insured caused by an accident resulting from the
             ownership, maintenance, or use of a motor vehicle as
             follows:

             ....

             We will limit payment of Medical Expenses described in the
             Insuring Agreement of this policy's No-Fault Coverage to
             80% of a properly billed and documented reasonable
             charge, but in no event will we pay more than 80% of the
             following No-Fault Act "schedule of maximum charges"
             including the use of Medicare coding policies and payment
             methodologies of the federal Centers for Medicare and
             Medicaid Services, including applicable modifiers.

The policy defines a reasonable charge as follows:

             Reasonable Charge, which includes reasonable expense,
             means an amount determined by us to be reasonable in
             accordance with the No-Fault Act, considering one or more
             of the following:
             1. usual and customary charges;
             2. payments accepted by the provider;
             3. reimbursement levels in the community;
             4. various federal and state medical fee schedules
                 applicable to motor vehicle and other insurance
                 coverages;
             5. the schedule of maximum charges in the No-Fault Act[;]
             6. other information relevant to the reasonableness of the
                 charge for the service, treatment, or supply; or
             7. Medicare coding policies and payment methodologies of
                 the federal Centers for Medicare and Medicaid Services,
                 including applicable modifiers, if the coding policy or
                 payment methodology does not constitute a utilization
                 limit.



627.736(5)(a)(1)"; therefore, whether the amount actually paid by State Farm complies
with the schedule of maximum charges was not before the trial court and is thus outside
the scope of our appellate review.


                                           -3-
The State Farm policy tracks the method of reimbursement calculation outlined in

section 627.736(5)(a)2 and the limitation set forth in section 627.736(5)(a)(1).3 State

Farm contends that it is authorized under the 2013 PIP statute to limit its maximum

payment to eighty percent of the schedule of maximum charges under section

627.736(5)(a)(1). Park Place disagrees, arguing that State Farm must elect either the

reasonable charge method of calculation under section 627.736(5)(a) or the schedule of

maximum charges method of calculation under section 627.736(5)(a)(1) and that

because its policy includes both, State Farm relies on an "unlawful hybrid method" of

reimbursement calculation. Park Place contends that because State Farm cannot elect

both calculation methods, it must use the reasonable charge method as outlined in the

definitions section of its policy and section 627.736(5)(a). We disagree.




              2Section  627.736(5)(a) provides:
              (5) Charges for treatment of injured persons.--
              (a) A physician, hospital, clinic, or other person or institution
              lawfully rendering treatment to an injured person for a bodily
              injury covered by personal injury protection insurance may
              charge the insurer and injured party only a reasonable
              amount pursuant to this section for the services and supplies
              rendered . . . . In determining whether a charge for a
              particular service, treatment, or otherwise is reasonable,
              consideration may be given to evidence of usual and
              customary charges and payments accepted by the provider
              involved in the dispute, reimbursement levels in the
              community and various federal and state medical fee
              schedules applicable to motor vehicle and other insurance
              coverages, and other information relevant to the
              reasonableness of the reimbursement for the service,
              treatment, or supply.
              3Section
                     627.736(5)(a)(1) provides that "[t]he insurer may limit
reimbursement to 80 percent of the . . . schedule of maximum charges."


                                            -4-
              This court reviews a final summary judgment de novo. Motzenbecker v.

State Farm Mut. Auto. Ins. Co., 123 So. 3d 600, 602 (Fla. 2d DCA 2013) (reviewing a

ruling on cross-motions for summary judgment where both parties sought declaratory

relief); see also Allstate Ins. Co. v. Orthopedic Specialists, 212 So. 3d 973, 975 (Fla.

2017) ("Because the question presented requires this Court to interpret provisions of the

Florida Motor Vehicle No-Fault Law—specifically, the PIP statute—as well as to

interpret the insurance policy, our standard of review is de novo." (quoting Geico Gen.

Ins. Co. v. Virtual Imaging Servs., Inc., 141 So. 3d 147, 152 (Fla. 2013))).

" '[L]egislative intent is the polestar that guides a court's inquiry under the No-Fault Law,'

including the PIP statute. 'Such intent is derived primarily from the language of the

statute.' " Virtual Imaging, 141 So. 3d at 154 (citation omitted) (quoting Allstate Ins. Co.

v. Holy Cross Hosp., Inc., 961 So. 2d 328, 334 (Fla. 2007)).

              In 1971 the Florida Legislature enacted the Florida Motor Vehicle No-Fault

Law4 "to provide for medical, surgical, funeral, and disability insurance benefits without

regard to fault[] and to require motor vehicle insurance securing such benefits." Id. at

152 (quoting § 627.731, Fla. Stat. (2008)). The mandate that an insurer reimburse a

percentage of the reasonable expenses for medically necessary services "is the heart of

the PIP statute's coverage requirements." Id. at 155. Under the 2013 version of the

PIP statute, an insurer is required to pay the reasonable charges for medically

necessary services under section 627.736(5)(a); however, it may elect to limit its

payment using the schedule of maximum charges under section 627.736(5)(a)(1). See

Virtual Imaging, 141 So. 3d at 150 ("[T]he PIP statute, section 627.736, requires the


              4See   §§ 627.730–.7405.


                                            -5-
insurer to pay for 'reasonable expenses . . . for medically necessary . . . services' but

merely permits the insurer to use the Medicare fee schedules as a basis for limiting

reimbursements." (citation omitted)). To make this election, the insurer must provide

notice to the insured in the policy. § 627.736(5)(a)(5); see also Orthopedic Specialists,

212 So. 3d at 976–77.

              In Virtual Imaging, the Florida Supreme Court considered "the effect of the

2008 amendments [to the PIP statute] on an insurer's ability to limit reimbursements"

before the legislature enacted the notice requirement in 2012. 141 So. 3d at 154. The

2008 PIP statute contained language similar to the 2013 PIP statute regarding the

reasonable charge calculation method and the schedule of maximum charges limitation

in subsections (5)(a)(1) and (5)(a)(2), respectively. By placing the reasonable charge

method and the fee schedules limitation in two separate but coequal subsections of

627.736(5)(a), the legislature created two distinct reimbursement calculation

methodologies. Id. at 156 ("[T]here are two different methodologies for calculating

reimbursements to satisfy the PIP statute's reasonable medical expenses coverage

mandate."). The supreme court held that the statute thus "offered insurers a choice . . .

to limit reimbursements based on the Medicare fee schedules or . . . based on the

[reasonable charge] factors enumerated in section 627.736(5)(a)(1)." Id. at 157.

Relying on the permissive language of section 627.736(5)(a)(2), the supreme court

explained that an "insurer must clearly and unambiguously elect the [schedule of

maximum charges] payment methodology in order to rely on it." Id. at 158 (citing

Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So. 3d 63, 67–68 (Fla. 4th DCA

2011)). Because the insurer's policy made no specific reference to the schedule of




                                            -6-
maximum charges, the supreme court ultimately concluded that it could not limit its

reimbursement based on those fee schedules. Id. at 160.

              In Orthopedic Specialists, the supreme court considered the 2009 version

of the PIP statute, which included language identical to the 2008 statute defining the

reasonable charge and schedule of maximum charges calculation methodologies in

subsections (5)(a)(1) and (5)(a)(2), respectively. Relying on Virtual Imaging, the

supreme court reaffirmed that the reasonable charge calculation methodology and the

schedule of maximum charges limitation were separate and distinct and that each

individually "satisf[ied] the PIP statute's reasonable medical expenses coverage

mandate." Orthopedic Specialists, 212 So. 3d at 976. But the supreme court went on

to explain that the insurer's "PIP policy cannot contain a statement that the insurer will

not pay eighty percent of reasonable charges because no insurer can disclaim the PIP

statute's reasonable medical expenses coverage mandate" and that the policy cannot

"state that the insurer will calculate benefits solely under the Medicare fee schedules

contained within section 627.736(5)(a)(2) because the Medicare fee schedules are not

the only applicable mechanism for calculating reimbursements under the permissive

payment methodology." Id. at 977 (noting that the schedule of maximum charges

outlined in section 627.736(5)(a)(2) contained both Medicare fee schedules and non-

Medicare fee schedules). Accordingly, the supreme court expressly rejected the

argument urged by Park Place in this appeal, that an insurer's policy must completely

disclaim the reasonable charge methodology to elect the schedule of maximum charges

limitation. Id. at 975 (rejecting the Fourth District's holding that a "policy must make it

inescapably discernable that it will not pay the 'basic' statutorily required coverage




                                             -7-
[mandate of eighty percent of reasonable expenses for medically necessary services]

and will instead substitute the Medicare fee schedules as the exclusive form of

reimbursement" (alteration in original) (quoting Orthopedic Specialists v. Allstate Ins.

Co., 177 So. 3d 19, 26 (Fla. 4th DCA 2015))). Because the insurer's policy "clearly and

unambiguously state[d] that '[a]ny amounts payable' for medical expense

reimbursements 'shall be subject to any and all limitations, authorized by section

627.736, . . . including . . . all fee schedules,' " the supreme court concluded that the

policy adequately placed the insured and service providers on notice of the insurer's

election of the schedule of maximum charges limitation. Id. at 977–78 (second

alteration in original).

               Significantly, neither Virtual Imaging nor Orthopedic Specialists applies to

policies created after the 2012 amendment to the PIP statute, which the State Farm

policy at issue in this case was. See Orthopedic Specialists, 212 So. 3d at 974; Virtual

Imaging, 141 So. 3d at 150 ("[O]ur holding applies only to policies that were in effect

from the effective date of the 2008 amendments to the PIP statute that first provided for

the Medicare fee schedule methodology, which was January 1, 2008, through the

effective date of the 2012 amendment, which was July 1, 2012.").

               In 2012 the legislature substantially amended section 627.736(5), setting

forth the schedule of maximum charges limitation as a subsection of the reasonable

charge calculation methodology. Ch. 2012-197, § 10, at 2743–44, Laws of Fla. As a

result of this amendment, the reasonable charge and schedule of maximum charges

methodologies are no longer coequal subsections of 627.736(5)(a); instead the

reasonable charge method is set forth in subsection (5)(a), and the schedule of




                                            -8-
maximum charges limitation is provided in subsection (5)(a)(1). Based on the current

construction of the PIP statute, we conclude that there are no longer two mutually

exclusive methodologies for calculating the reimbursement payment owed by the

insurer. See Bd. of Trs., Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d

120, 126 (Fla. 2016) ("When a statute is amended to change a key term or to delete a

provision, 'it is presumed that the Legislature intended it to have a meaning different

from that accorded to it before the amendment.' " (quoting Carlile v. Game & Fresh

Water Fish Comm'n, 354 So. 2d 362, 364 (Fla.1977))). The 2013 PIP statute includes

the fact-dependent calculation of reasonable charges as a part of the definition of

"[c]harges for treatment of injured persons" under section 627.736(5)(a). And an insurer

may not disclaim the fact-dependent calculation; however, it may elect to limit its

payment in accordance with the schedule of maximum charges under subsection

(5)(a)(1)(a)–(f). Accordingly, we reject Park Place's argument that State Farm's policy

contains an "unlawful hybrid method" of reimbursement calculation and is therefore

impermissibly vague. State Farm's inclusion of the statutory factors in its definition of

reasonable charges tracks the PIP statute and is not inconsistent with the policy

language limiting reimbursement to the schedule of maximum charges.

              "Where the language in an insurance contract is plain and unambiguous, a

court must interpret the policy in accordance with the plain meaning so as to give effect

to the policy as written." Orthopedic Specialists, 212 So. 3d at 975–76 (quoting

Washington Nat'l Ins. Corp. v. Ruderman, 117 So. 3d 943, 948 (Fla. 2013)). State

Farm's policy clearly and unambiguously states that "in no event will we pay more than

80% of the . . . No-Fault Act 'schedule of maximum charges.' " The policy also includes




                                            -9-
language virtually identical to that of section 627.736(5)(a)(1)(a)–(f), listing verbatim all

of the applicable fee schedules that it will use to limit reimbursement. State Farm's

policy language is even more clear and unambiguous than that at issue in Orthopedic

Specialists, which "state[d] that '[a]ny amounts payable' for medical expense

reimbursements 'shall be subject to any and all limitations, authorized by section

627.736, . . . including . . . all fee schedules.' " 212 So. 3d at 977; see also Allstate

Indem. Co. v. Markley Chiropractic & Acupuncture, LLC, 226 So. 3d 262, 266 (Fla. 2d

DCA 2016), review denied, no. SC16-1100 (Fla. Aug. 4, 2017). Because the State

Farm policy includes mandatory language expressly limiting reimbursement for

reasonable medical expenses to the schedule of maximum charges set forth in section

627.736(5)(a)(1)(a)–(f), we conclude that it is sufficient to place insureds and service

providers on notice as required by section 627.736(5)(a)(5). Accordingly, we reverse

the trial court's order granting summary judgment in favor of Park Place, and we certify

the following question of great public importance:

              DOES THE 2013 PIP STATUTE AS AMENDED PERMIT AN
              INSURER TO CONDUCT A FACT-DEPENDENT
              CALCULATION OF REASONABLE CHARGES UNDER
              SECTION 627.736(5)(a) WHILE ALLOWING THE INSURER
              TO LIMIT ITS PAYMENT IN ACCORDANCE WITH THE
              SCHEDULE OF MAXIMUM CHARGES UNDER SECTION
              627.736(5)(a)(1)?

              Reversed and remanded for further proceedings consistent with this

opinion; question certified.


CASANUEVA and CRENSHAW, JJ., Concur.




                                            - 10 -
