          IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FIFTH DISTRICT

                                                    NOT FINAL UNTIL TIME EXPIRES TO
                                                    FILE MOTION FOR REHEARING AND
                                                    DISPOSITION THEREOF IF FILED


PROGRESSIVE SELECT INSURANCE
COMPANY,

              Petitioner,

 v.                                                         Case No. 5D16-253

EMERGENCY PHYSICIANS OF CENTRAL
FLORIDA, LLP, AS ASSIGNEE OF
SAMANTHA JORDAN AND ELIZABETH
FIGUEROA,

              Respondent.

________________________________/

Opinion filed September 16, 2016

Petition for Certiorari Review of Order
from the Circuit Court for Seminole County,
Jessica J. Recksiedler, Judge.

Betsy E. Gallagher and Michael C. Clarke,
of Kubicki Draper, P.A., Tampa, for
Petitioner.

Dean A. Mitchell, Ocala, for Respondent.


PER CURIAM.

       Progressive Select Insurance Company (“Progressive”) petitions this court for a

writ of certiorari. Progressive argues that the circuit court, sitting in its appellate capacity,

erred in finding that it was precluded from arguing the reasonableness of charges for

medical services billed by Emergency Physicians of Central Florida, LLP (“EPCF”).
         The instant case arose from two separate lawsuits filed by EPCF seeking payment

for medical services provided to Samantha Jordan and Elizabeth Figueroa. Both Jordan

and Figueroa held automotive insurance policies with Progressive.            EPCF billed

Progressive for medical services, and Progressive issued payment for the services that

was reduced to eighty percent of 200 percent of the allowable amount under the Medicare

Part B fee schedule. EPCF brought suit seeking additional payment.

         The county court, in granting summary judgment in favor of EPCF, held that

Progressive had improperly used the fee schedule in paying the billed amounts.

Progressive appealed the judgment to the circuit court, which found that Progressive

should have “clearly and unambiguously” selected the fee schedule limitation under

section 627.736(5)(a)2., Florida Statutes (2008), if it wanted to limit its payments in

accordance with the Medicare fee schedule. The circuit court added that Progressive

was precluded from engaging in discovery and arguing the reasonableness of the billed

amounts. Nonetheless, the circuit court remanded the case for further proceedings,

holding that EPCF had failed to meet its burden of proof in demonstrating the billed

amounts were reasonable. EPCF and Progressive both filed motions for rehearing, which

were denied. Progressive subsequently petitioned this court for a writ of certiorari.

         Progressive argues that, although it did not specifically elect to use the fee

schedule in its insurance policies, it did not waive its opportunity to litigate the

reasonableness of EPCF’s bills when it paid the bills based on the fee schedule. We

agree.

         Section 627.736(5)(a)2.f., Florida Statutes (2008), provides that insurance

companies may limit reimbursement for billed services to eighty percent of 200 percent




                                            2
in discovery and contesting the reasonableness of EPCF’s bill. We remand this case for

further proceedings consistent with this opinion.


      PETITION GRANTED and REMANDED.

SAWAYA, WALLIS and LAMBERT, JJ., concur.




                                            4
in discovery and contesting the reasonableness of EPCF’s bill. We remand this case for

further proceedings consistent with this opinion.


      PETITION GRANTED and REMANDED.

SAWAYA, WALLIS and LAMBERT, JJ., concur.




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