         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. 5D16-2333

FLORIDA HOSPITAL MEDICAL CENTER
A/A/O JONATHAN PARENT,

           Respondent.
________________________________/

Opinion filed February 9, 2018

Petition for Certiorari Review of Decision
from the Circuit Court for Orange County
Acting in its Appellate Capacity.

Douglas H. Stein, of Bowman and Brooke,
LLP, Coral Gables, for Petitioner.

Chad A. Barr, of Law Office of Chad A. Barr,
P.A., Altamonte Springs, for Respondent.

Lawrence M. Kopelman, of Lawrence M.
Kopelman, P.A., Fort Lauderdale and Mac
S. Phillips and Chris Tadros, of Phillips
Tadros, P.A., Fort Lauderdale, as Amicus
Curiae Floridians for Fair Insurance, Inc.
              ON MOTION FOR REHEARING AND MOTION TO CERTIFY


SAWAYA, J.

       Progressive Select Insurance Company has filed a motion for rehearing and a

motion to certify a question of great public importance to the Florida Supreme Court. We

grant the motion for rehearing and the motion to certify. We withdraw the previous opinion

and substitute the following in its stead.

       This certiorari proceeding concerns the proper methodology to determine the

application of the deductible authorized under section 627.739(2), Florida Statutes

(2014), when personal injury protection (“PIP”) benefits are sought by an insured. The

decision we review (rendered by the circuit court in its appellate capacity) provides that,

when calculating the amount of PIP benefits due to the insured, section 627.739(2)

requires the deductible to be subtracted from the total medical care charges before

applying the statutory reimbursement limitations provided in section 627.736(5)(a)1.b.,

Florida Statutes (2014). The respondent, Florida Hospital Medical Center, contends that

the court applied the correct law in utilizing this methodology. Progressive argues that

the statutory limitations must be applied first and the deductible subtracted from that

amount. The issue is thus framed, and we must decide whether the circuit court properly

interpreted the pertinent statutory provisions and applied the correct methodology. This

issue has generated numerous conflicting decisions by the county and circuit courts, 1 so




       1 See, e.g., Progressive Select Ins. v. Fla. Hosp. Med. Ctr., 24 Fla. L. Weekly Supp.
318a (Fla. 9th Cir. Ct. June 14, 2016); Progressive Select Ins. v. Fla. Hosp. Med. Ctr., 24
Fla. L. Weekly Supp. 200a (Fla. 9th Cir. Ct. June 14, 2016); cf. Advantacare of Fla., LLC
v. Geico Indem. Co., 23 Fla. L. Weekly Supp. 841a (Fla. 7th Cir. Ct. July 24, 2015);
Progressive Am. Ins. v. Munroe Reg’l Health Sys., Inc., 23 Fla. L. Weekly Supp. 707a


                                             2
medical expenses and 60% reimbursement limitation for disability expenses and losses)

for calculating how much of the expenses and losses will be paid as benefits. On the

other hand, section 627.739 requires that the deductible must be applied to “100 percent

of the expenses and losses.” In other words, the 80% and 60% methodologies in section

627.736(1) are intended to limit reimbursements in order to establish benefits. They are

not intended to describe the application of the deductible under the 100% methodology

provided in section 627.739(2).

       Specifically, Progressive contends that the reimbursement limitations contained

in section 627.736(5)(a)1.b. should be applied to reduce the expenses and losses and

that the deductible should be subtracted from that reduced amount to arrive at the benefit

amount owed to the insured.       We disagree because, using that methodology, the

deductible is not being applied toward 100% of the expenses and losses as required by

section 627.739(2). Section 627.736(5)(a)1. provides the insurer with an option to

determine benefits pursuant to a schedule of reimbursement limitations. This statutory

provision is part of legislative amendments enacted in 2008. It states in pertinent part:

              1. The insurer may limit reimbursement to 80 percent of the
              following schedule of maximum charges:

              ....

              b. For emergency services and care provided by a hospital
              licensed under chapter 395, 75 percent of the hospital’s usual
              and customary charges.

§ 627.736(5)(a)1., Fla. Stat. (2014) (emphasis added). “The word ‘may’ when given its

ordinary meaning denotes a permissive term rather than the mandatory connotation of

the word ‘shall.’” Fla. Bar v. Trazenfeld, 833 So. 2d 734, 738 (Fla. 2002).




                                            7
         $2,085.75
       - $1,000.00 Parent’s PIP deductible
         $1,085.75
             X 80% Applying section 627.736(5)(a)1.
         $ 868.60 Amount Due

       Florida Hospital thereafter filed suit against Progressive in the county court seeking

the $200 difference between what it calculated the PIP benefit amount to be and what

Progressive paid.      After Progressive filed an answer denying liability and asserting

affirmative defenses, both parties filed motions for summary judgment.

       The county court entered a final summary judgment in favor of Florida Hospital in

the amount of $200, plus interest, thus adopting Florida Hospital’s argument that the plain

language of section 627.739(2) required Progressive to subtract Parent’s deductible from

Florida   Hospital’s    total   charges   before   applying   section   627.736(5)(a)1.b.’s

reimbursement limitation. Progressive appealed, and the circuit court affirmed the county

court’s judgment. This certiorari proceeding followed.

       Before continuing further, it is necessary to note the limitations of our review.

Second-tier certiorari review is limited to determining whether the circuit court:        (1)

accorded procedural due process and (2) applied the correct law. Dep’t of High. Saf. &

Motor Veh. v. Alliston, 813 So. 2d 141, 144 (Fla. 2d DCA 2002). Here, the pertinent

inquiry is whether the circuit court applied the correct law when interpreting sections

627.736(5)(a)1.b. and 627.739(2) to determine whether the county court utilized the

correct methodology to apply the deductible. Certiorari relief can be granted only if

Progressive demonstrates that there has been a violation of a clearly established principle

of law resulting in a miscarriage of justice. Futch v. Fla. Dep’t of High. Saf. & Motor Veh.,

189 So. 3d 131, 132 (Fla. 2016). Clearly established law derives from a variety of legal




                                             4
deductible would be applied to, moving the term “benefits” to the next sentence, which

discusses the insurer’s liability after the deductible is satisfied. Thus, the current version

of the statute provides a clear distinction between “expenses and losses” for purposes of

applying the deductible and “benefits” that are due to the insured after the reimbursement

limitations are applied.

       The legislative amendment in 2003 constituted a substantive change in the

sequence of applying the deductible in PIP cases. The Legislature, by requiring that the

deductible be applied to 100% of the expenses and losses, abandoned the previous

methodology of subtracting the deductible from the benefits due under the policy after

applying the reimbursement limitations.         Despite this legislative change in 2003,




       [The bill] [a]mends s. 627.739, F.S., relating to PIP deductibles, to change
       the calculation of the PIP deductible to require that it must be applied to 100
       percent of medical expenses, rather than to the current 80 percent of
       expenses that PIP pays. This provision has the effect of requiring PIP to
       pay more in benefits than it does now if a deductible is elected. For
       example, under current law: $5,000 medical bill, PIP pays 80 percent, or
       $4,000, minus $2,000 deductible = $2,000. Under this provision: $5,000
       medical bill, minus $2,000 deductible, is $3,000. PIP pays 80 percent X
       $3,000 = $2,400.

Fla. S. Comm. on Banking & Ins., CS for SB 32-A (2003) Staff Analysis 16 (May 15, 2003).
We have not relied on this report in our analysis. We note it here because it confirms our
conclusion about how the deductible should be applied under section 627.739(2). See
Townsend v. R.J. Reynolds Tobacco Co., 192 So. 3d 1223, 1229 (Fla. 2016) (noting that,
after examining a staff analysis of the enacting law, “[a]lthough it is not necessary to delve
into the legislative history of section 55.03(3), Florida Statutes (2010), because the
language is clear and unambiguous, the legislative history nevertheless confirms our
reading of the statute”); Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, 368
(Fla. 2013) (“The legislative summary in a staff analysis regarding FDUTPA affords further
support for the principal [sic] . . . .”); Larimore v. State, 2 So. 3d 101, 109 n.4 (Fla. 2008)
(“This interpretation is confirmed by Senate staff analyses on chapter 99-222, Laws of
Florida . . . .”); G.G. v. Fla. Dep’t of Law Enf., 97 So. 3d 268, 273 (Fla. 1st DCA 2012)
(“Our decision does not rely on staff analyses. . . . The staff analyses support the position
advocated here by G.G., not FDLE.”).


                                              10
              Insurers shall offer to each applicant and to each policyholder,
              upon the renewal of an existing policy, deductibles, in
              amounts of $250, $500, and $1,000. The deductible amount
              must be applied to 100 percent of the expenses and losses
              described in s. 627.736. After the deductible is met, each
              insured is eligible to receive up to $10,000 in total benefits
              described in s. 627.736(1). However, this subsection shall not
              be applied to reduce the amount of any benefits received in
              accordance with s. 627.736(1)(c).

§ 627.739(2), Fla. Stat. (2014) (emphasis added). This statute distinguishes between

“expenses and losses” and “benefits.” The second sentence states that the deductible

“must be applied to 100 percent of the expenses and losses.” In the very next sentence,

the statute provides that “[a]fter the deductible is met, each insured is eligible to receive

up to $10,000 in total benefits.” Thus, the statute indicates that the deductible applies to

“100 percent of the expenses and losses” whereas “benefits” refers to the calculated

amount after the deductible has been applied to the total expenses and losses and after

application of the statutory reimbursement limitations found in section 627.736.

       “Expenses and losses” are not defined in the statute, but they are described in

section 627.736(1). Section 627.736(1)(a) specifically provides that the insured may be

entitled to “[e]ighty percent of all reasonable expenses for medically necessary medical,

surgical, X-ray, dental, and rehabilitative services.” § 627.736(1)(a), Fla. Stat. (2014)

(emphasis added). Similarly, section 627.736(1)(b) refers to “[s]ixty percent of any loss

of gross income and loss of earning capacity” and “all expenses reasonably incurred in

obtaining from others ordinary and necessary services” associated with the disability of

an insured. § 627.736(1)(b), Fla. Stat. (2014) (emphasis added).

       In addition to describing expenses and losses, section 627.736(1) also describes

benefits and establishes separate methodologies (80% reimbursement limitation for




                                              6
PALMER, J., concurring in part and dissenting in part.                            5D16-2333

       I concur with the majority in certifying the question to the Florida Supreme Court. I

otherwise respectfully dissent.

       As the circuit court for the Eighteenth Judicial Circuit observed in Garrison Property

& Casualty Insurance Co. v. New Smyrna Imaging, LLC:

              As an initial step under s. 627.739(2), the insurer must first
              determine what are the “expenses and losses described in s.
              627.736,” in order to apply the deductible to 100% of those
              expenses and losses. Section 627.736 contains several
              references to expenses, almost all of which are described as
              or used in the context of reasonable expenses or expenses
              “covered by the policy.” Section 627.736(1)(a), (1)(b), & (6)(b),
              Fla. Stat. (footnote omitted). Thus, when read together,
              section 627.739 and section 727.736 require that a PIP
              deductible be applied to 100% of the reasonable and
              necessary medical expenses, or those expenses covered by
              the policy.

23 Fla. L. Weekly Supp. 708a (Fla. 18th Cir. Ct. Jan. 12, 2015). Section 627.739(2)’s

references to section 627.736 necessarily include references to the reimbursement

limitation of section 627.736(5)(a)1.b. and, therefore, “100 percent of the expenses . . .

described in s. 627.736” includes the reimbursement limitation set forth in the current

section 627.736(5)(a)1.b.

       The majority concludes that “medical expenses” are not the same as “medical

benefits” under the PIP statute. I disagree. Medical expenses covered under PIP are

limited to those services and expenses which are reasonable and necessary. See Geico

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

majority’s interpretation of section 627.739(2), the deductible could be applied to a charge

which is unreasonably high and thus not covered by PIP. “The notion that a deductible




                                             18
       We believe that application of the optional reimbursement limitations to establish

a reduced amount of expenses and losses from which the deductible amount is

subtracted would render meaningless the requirement in section 627.739(2) that “[t]he

deductible amount must be applied to 100 percent of the expenses and losses.” See

Borden v. E.-Eur. Ins., 921 So. 2d 587, 595 (Fla. 2006) (“It is . . . a basic rule of statutory

construction that ‘the Legislature does not intend to enact useless provisions, and courts

should avoid readings that would render part of a statute meaningless.’”).


                     Historical Development of Section 627.739(2)

       The Legislature knows how to write statutory provisions that would require the

deductible amount to be subtracted from the benefits due under the policy, which are

determined after the reimbursement limitations are applied. Indeed, the prior version of

section 627.739(2) stated:

              Insurers shall offer to each applicant and to each policyholder,
              upon the renewal of an existing policy, deductibles, in
              amounts of $250, $500, $1,000, and $2,000, such amount to
              be deducted from the benefits otherwise due each person
              subject to the deduction. However, this subsection shall not
              be applied to reduce the amount of any benefits received in
              accordance with s. 627.736(1)(c).

§ 627.739(2), Fla. Stat. (1999) (emphasis added). The Florida Supreme Court reviewed

the emphasized provision and held that the clear meaning of the statute required that the

benefits due under the policy be calculated utilizing the reimbursement limitation (which

at that time was 80% of the medical expenses) and that the deductible amount was to be

subtracted from that calculation. Govan v. Int’l Bankers Ins., 521 So. 2d 1086, 1088 (Fla.

1988) (“The plain reading of this statute requires a construction that subtracts the

deductible from the eighty percent of the medical expenses.”); see also Int’l Bankers Ins.



                                              8
v. Arnone, 552 So. 2d 908, 911 (Fla. 1989) (“Under the statutory scheme, the deductible

amounts are to be deducted from ‘benefits otherwise due.’ . . . Section 627.736(1) defines

the parameters of the benefits otherwise due under a PIP policy as including eighty

percent of certain medical expenses and sixty percent of lost wages . . . .”). Therefore,

under this prior version of the statute, the deductible was required to be satisfied from the

amount that was actually payable out of the policy benefits.

       In Govan, the Florida Supreme Court lamented the methodology required by the

prior version of section 627.739(2) and invited the Legislature to address the issue:

              While we may disagree with the legislative policy underlying
              the statute, we have no authority to change the clear intent
              and purpose of a statute that is not vague and ambiguous.
              Complaints about this policy should be addressed to the
              legislature.*

              * We note the legislature, during the 1987 session, failed to
              enact a bill which would have amended the statute to make it
              consistent with the statutory interpretation presented here by
              the petitioner. House Bill 1015.

521 So. 2d at 1088. In response to Govan and Arnone, the Florida Legislature in 2003

amended section 627.739(2) to require:

              (2) . . . The deductible amount must be applied to 100 percent
              of the expenses and losses described in s. 627.736. After the
              deductible is met, each insured is eligible to receive up to
              $10,000 in total benefits described in s. 627.736(1).

§ 627.739(2), Fla. Stat. (2003). 4 The obvious intent of the Legislature was to replace the

term “benefits otherwise due” with “expenses and losses” in determining what the



       4 In its motion for summary judgment filed in the county court, Florida Hospital
relied on the 2003 Senate Staff Analysis and Economic Impact Statement to argue that
the intent of the 2003 amendments was to apply the deductible before reducing the
medical expenses pursuant to the statutory reimbursement limitations. Specifically, the
pertinent part of the staff analysis provides:


                                             9
deductible would be applied to, moving the term “benefits” to the next sentence, which

discusses the insurer’s liability after the deductible is satisfied. Thus, the current version

of the statute provides a clear distinction between “expenses and losses” for purposes of

applying the deductible and “benefits” that are due to the insured after the reimbursement

limitations are applied.

       The legislative amendment in 2003 constituted a substantive change in the

sequence of applying the deductible in PIP cases. The Legislature, by requiring that the

deductible be applied to 100% of the expenses and losses, abandoned the previous

methodology of subtracting the deductible from the benefits due under the policy after

applying the reimbursement limitations.         Despite this legislative change in 2003,




       [The bill] [a]mends s. 627.739, F.S., relating to PIP deductibles, to change
       the calculation of the PIP deductible to require that it must be applied to 100
       percent of medical expenses, rather than to the current 80 percent of
       expenses that PIP pays. This provision has the effect of requiring PIP to
       pay more in benefits than it does now if a deductible is elected. For
       example, under current law: $5,000 medical bill, PIP pays 80 percent, or
       $4,000, minus $2,000 deductible = $2,000. Under this provision: $5,000
       medical bill, minus $2,000 deductible, is $3,000. PIP pays 80 percent X
       $3,000 = $2,400.

Fla. S. Comm. on Banking & Ins., CS for SB 32-A (2003) Staff Analysis 16 (May 15, 2003).
We have not relied on this report in our analysis. We note it here because it confirms our
conclusion about how the deductible should be applied under section 627.739(2). See
Townsend v. R.J. Reynolds Tobacco Co., 192 So. 3d 1223, 1229 (Fla. 2016) (noting that,
after examining a staff analysis of the enacting law, “[a]lthough it is not necessary to delve
into the legislative history of section 55.03(3), Florida Statutes (2010), because the
language is clear and unambiguous, the legislative history nevertheless confirms our
reading of the statute”); Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, 368
(Fla. 2013) (“The legislative summary in a staff analysis regarding FDUTPA affords further
support for the principal [sic] . . . .”); Larimore v. State, 2 So. 3d 101, 109 n.4 (Fla. 2008)
(“This interpretation is confirmed by Senate staff analyses on chapter 99-222, Laws of
Florida . . . .”); G.G. v. Fla. Dep’t of Law Enf., 97 So. 3d 268, 273 (Fla. 1st DCA 2012)
(“Our decision does not rely on staff analyses. . . . The staff analyses support the position
advocated here by G.G., not FDLE.”).


                                              10
Progressive and the dissent argue that the methodology advanced in the previous version

of section 627.739 (as interpreted by the Florida Supreme Court in Govani and Arnone)

should continue to be applied by the courts under the current version of the statute. We

do not believe that the Legislature would find it necessary to amend the statute as it did

in 2003 if, as Progressive and the dissent essentially argue, there was to be no change

in the methodology. As we have previously indicated, the Legislature does not intend to

enact useless legislation. See Dennis v. State, 51 So. 3d 456, 463 (Fla. 2010); Borden,

921 So. 2d at 595; State v. Goode, 830 So. 2d 817, 824 (Fla. 2002); Macchione v. State,

123 So. 3d 114, 119 (Fla. 5th DCA 2013).

      The court in Govan noted that during the 1987 legislative session, the Legislature

failed to enact a bill that would change the methodology described in the prior version of

section 627.739(2). Similarly, it should be noted here that during the 2016 legislative

session, the Florida Legislature failed to enact a proposed bill that would amend section

627.739(2) to incorporate the methodology of subtracting the deductible amount after the

reimbursement limitations are used to determine the benefits due under the policy.

Specifically, the proposed amendment stated:

             Section 5. Subsection (2) of section 627.739, Florida Statutes,
             is amended to read:

             627.739 Personal injury protection; optional limitations;
             deductibles.—

             (2) Insurers shall offer to each applicant and to each
             policyholder, upon the renewal of an existing policy,
             deductibles, in amounts of $250, $500, and $1,000. The
             deductible amount must be applied to 100 percent of the
             expenses and losses covered under personal injury protection
             benefits coverage issued pursuant to described in s. 627.736.
             If an insurer has elected to apply the schedule of maximum
             charges authorized under this chapter, the amount of



                                           11
              expenses and losses applicable to the deductible will be
              limited to 100 percent of such authorized reimbursement
              limitations or fee schedules. After the deductible is met, each
              insured is eligible to receive up to $10,000 in total benefits
              described in s. 627.736(1). However, this subsection shall not
              be applied to reduce the amount of any benefits received in
              accordance with s. 627.736(1)(c).

Fla. SB 1036 (2016) (words stricken are deletions; words underlined are additions); see

also Fla. HB 659 (2016) (same). This amendment incorporates the same methodology

Progressive and the dissent argue should apply under the current version of section

627.739(2). The Legislature did not adopt this amendment.

       The dissent labels this failed amendment a clarification of the current statute. We

disagree.    The thirteen-year span between enactment of the current statute and

introduction of the failed amendment establishes that it would have been a substantive

revision. See Parole Comm’n v. Cooper, 701 So. 2d 543, 544-45 (Fla. 1997) (“[I]t is

inappropriate to use an amendment enacted ten years after the original enactment to

clarify original legislative intent.”); State Farm Mut. Auto. Ins. v. Laforet, 658 So. 2d 55,

62 (Fla. 1995) (“It would be absurd . . . to consider legislation enacted more than ten years

after the original act as a clarification of original intent . . . .”); Macchione, 123 So. 3d at

117. Moreover, the title to the bill incorporating the failed amendment states:

              An act relating to automobile insurance; . . . amending s.
              627.739, F.S.,; revising applicability; providing a limitation to
              an amount of expenses and losses applicable to a deductible
              related to personal injury protection benefits under a certain
              condition . . . .

Fla. SB 1036 (2016). The title of a proposed law may reveal whether the Legislature

intended to substantively change a statute or to clarify its provisions. See Hassen v. State

Farm Mut. Auto. Ins., 674 So. 2d 106, 109-10 (Fla. 1996); see also Earth Trades, Inc. v.




                                              12
T & G Corp., 108 So. 3d 580, 585 (Fla. 2013); Kasischke v. State, 991 So. 2d 803, 809

(Fla. 2008); State v. Webb, 398 So. 2d 820, 825 (Fla. 1981) (“The title is more than an

index to what the section is about or has reference to; it is a direct statement by the

legislature of its intent.” (citation omitted)); Macchione, 123 So. 3d at 118. There is

nothing in this language indicating that the amendment was intended to be a clarification.


  The “Unreasonable Bill” Argument Advanced by Progressive and the Dissent

      Progressive and the dissent argue that the methodology they advance will ensure

that the medical provider does not render a bill for services that is unreasonable. The

reasonableness of the medical bills for services rendered to Parent in the instant case is

not an issue raised by any party in these proceedings. Indeed, Progressive stated in its

petition for writ of certiorari that “the point of contention in this case is whether the

deductible applies to a charge before the charge is limited by the 75% payment limitation

provided by Florida Statute § 627.736(5)(a)1.b, or after the charge is limited by the 75%

payment limitation.” In any event, we reject this argument for several reasons.

      First, it overlooks the distinctions between a deductible and a statutory

reimbursement limitation, and it disregards the reason the Legislature approved the

applicable provisions. The deductible provisions of section 627.739(2) were enacted to

allow for reductions in the amount of the premiums charged by the insurer and to

determine the amount of risk through self-insurance the insured has agreed to assume.

See Mercury Ins. of Fla. v. Emergency Physicians of Cent., 182 So. 3d 661, 667 (Fla. 5th

DCA 2015). Coverage under the policy is not triggered until the deductible amount is

met. Id. On the other hand, once coverage is triggered under the policy, the statutory

reimbursement limitations provide a methodology for determining the amount of benefits



                                           13
due to the insured.        See Virtual Imaging, 141 So. 3d at 153 (explaining that the

reimbursement limitations enacted in 2008 “provided, in part, more specific guidelines

regarding a PIP insurer’s ability to limit reimbursements” (emphasis added)). As this court

explained in Mercury Insurance, “[t]he meeting of the contracted-for deductible unlocks

the insured’s right to access his/her $10,000 in PIP benefits.” 182 So. 3d at 667. This

court further explained:

              This interpretation is consistent with the recognized purpose
              of a deductible. As was noted in General Star Indemnity
              Company v. West Florida Village Inn, Inc., 874 So. 2d 26, 33-
              34 (Fla. 2d DCA 2004):

                     A “deductible” is “a clause in an insurance policy that
                     relieves the insurer of responsibility for an initial
                     specified loss of the kind insured against.” Merriam-
                     Webster’s Collegiate Dictionary 471 (deluxe ed. 1998).

                     ....

                     “Generally, the functional purpose of a deductible,
                     which is frequently referred to as self-insurance, is to
                     alter the point at which an insurance company’s
                     obligation to pay will ripen.” Int’l Bankers Ins. Co. v.
                     Arnone, 552 So. 2d 908, 911 (Fla. 1989).

              Thus, an insured enters into a contract with an insurance
              company and agrees to be subject to a deductible in
              exchange for a reduced monthly premium. In effect, the
              insured agrees to “self-insure” for the deductible amount.
              Where an accident occurs, the insured (not the insurer)
              becomes responsible for payment of claims that are otherwise
              impacted by the deductible amount in the insurance policy.

Id.   We do not believe that the Legislature intended the statutory reimbursement

limitations to be applied to expenses and losses that fall within the insured’s deductible,

which the insured alone is obligated to pay and which are not recoverable as benefits

under the policy.




                                            14
       Second, the insured certainly has the right to contest any bill that the insured is

required to pay to meet the deductible. The Legislature has provided that an “insured is

not required to pay a claim or charges . . . [t]o any person who knowingly submits a false

or misleading statement relating to the claim or charges.” § 627.736(5)(b)1., Fla. Stat.

(2014). Moreover, medical care providers are prohibited from rendering any bill for

services that is false or fraudulent, and those that do may suffer severe criminal and civil

penalties. See § 817.234(1)(a), Fla. Stat. (2014). Section 817.234 also prohibits a

medical care provider from rendering a bill it does not intend to collect from the insured

in order to meet the deductible amount and trigger coverage under the policy.             §

817.234(7)(a), Fla. Stat. (2014) (“It shall constitute a material omission and insurance

fraud . . . for any service provider, other than a hospital, to engage in a general business

practice of billing amounts as its usual and customary charge, if such provider has

agreed with the insured or intends to waive deductibles or copayments, or does not for

any other reason intend to collect the total amount of such charge.”).

       Third, it bears repeating that the provisions of the No-Fault Law must be construed

in favor of the insured. Interpreting the pertinent statutory provisions in a manner that

supports the methodology urged by Progressive and the dissent would not further the

principle of providing broad PIP coverage to the insured. Rather, as established by the

calculation made by Progressive in its benefits payment (which is discussed at the

beginning of this opinion), that interpretation would allow the insurer to pay less in

benefits than would otherwise be due.

       Finally, the dissent bases its argument on a quote from the decision in Garrison,

23 Fla. L. Weekly Supp. at 708a. The quote states that several sections in 627.736,




                                             15
which are specifically cited by the Garrison court, refer to expenses “covered by the

policy.” We believe this decision is flawed because not one of the provisions of section

627.736 cited by the court in Garrison contains the language “covered by the policy.” In

any event, there are an equal number of circuit court opinions that reach the opposite

result, and we believe they are the better reasoned decisions.


                                          Conclusion

       We conclude that application of the methodology advanced by Progressive and

the dissent would require that we revert to the provisions of section 627.739(2) that were

in effect before the 2003 amendment. It is not for this court to pick and choose which

version of the statute to apply; we must apply the law as it currently exists. Section

627.739(2) currently requires that the deductible be applied to 100% of the expenses and

losses, and that is the version the circuit court properly applied. We see no divergence

from the correct law in the circuit court’s decision, and we see no violation of a clearly

established principle of law that results in a miscarriage of justice. Accordingly, we deny

the petition for writ of certiorari.

       We certify the following question to the Florida Supreme Court as a matter of great

public importance:

               WHEN CALCULATING THE AMOUNT OF PIP BENEFITS
               DUE AN INSURED, DOES SECTION 627.739(2), FLORIDA
               STATUTES, REQUIRE THAT THE DEDUCTIBLE BE
               SUBTRACTED FROM THE TOTAL AMOUNT OF MEDICAL
               CHARGES BEFORE APPLYING THE REIMBURSEMENT
               LIMITATION UNDER SECTION 627.736(5)(a)1.b., OR MUST
               THE REIMBURSEMENT LIMITATION BE APPLIED FIRST
               AND THE DEDUCTIBLE SUBTRACTED FROM THE
               REMAINING AMOUNT?




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      PETITION DENIED and QUESTION CERTIFIED.

EDWARDS, J., concurs.
PALMER, J., concurring in part, dissenting in part, with opinion.




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PALMER, J., concurring in part and dissenting in part.                            5D16-2333

       I concur with the majority in certifying the question to the Florida Supreme Court. I

otherwise respectfully dissent.

       As the circuit court for the Eighteenth Judicial Circuit observed in Garrison Property

& Casualty Insurance Co. v. New Smyrna Imaging, LLC:

              As an initial step under s. 627.739(2), the insurer must first
              determine what are the “expenses and losses described in s.
              627.736,” in order to apply the deductible to 100% of those
              expenses and losses. Section 627.736 contains several
              references to expenses, almost all of which are described as
              or used in the context of reasonable expenses or expenses
              “covered by the policy.” Section 627.736(1)(a), (1)(b), & (6)(b),
              Fla. Stat. (footnote omitted). Thus, when read together,
              section 627.739 and section 727.736 require that a PIP
              deductible be applied to 100% of the reasonable and
              necessary medical expenses, or those expenses covered by
              the policy.

23 Fla. L. Weekly Supp. 708a (Fla. 18th Cir. Ct. Jan. 12, 2015). Section 627.739(2)’s

references to section 627.736 necessarily include references to the reimbursement

limitation of section 627.736(5)(a)1.b. and, therefore, “100 percent of the expenses . . .

described in s. 627.736” includes the reimbursement limitation set forth in the current

section 627.736(5)(a)1.b.

       The majority concludes that “medical expenses” are not the same as “medical

benefits” under the PIP statute. I disagree. Medical expenses covered under PIP are

limited to those services and expenses which are reasonable and necessary. See Geico

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

majority’s interpretation of section 627.739(2), the deductible could be applied to a charge

which is unreasonably high and thus not covered by PIP. “The notion that a deductible




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could be applied to loss that is not covered by the policy is fundamentally unreasonable.”

Gen. Star Indem. Co. v. W. Fla. Vill. Inn, Inc., 874 So. 2d 26, 33 (Fla. 2d DCA 2004).

      The majority relies on the fact that the Legislature failed to enact a proposed law

in 2016 which explicitly recognized the calculation method propounded by Progressive as

evidence that that calculation method is not supported by the current law. However, the

Bill Analysis and Fiscal Impact Statement for that bill explained that the proposed

amendment sought to “clarify that the PIP deductible applies to expenses and losses

covered under PIP benefits and coverage.”          Fla. S. Bill Analysis & Fiscal Impact

Statement of Jan. 25, 2016, § 5 for Bill SB 1036, p. 5. The use of the word “clarify”

indicates that the proposed language was consistent with the current state of the law.

      I would grant the petition for certiorari and quash the circuit court’s order.




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