STATE FARM MUTUAL AUTOMOBILE

v.

GABLES INSURANCE RECOVERY

WALSH, J.

Pablo Pico was injured in a car accident, sought medical attention, and assigned his personal injury protection (“PIP”) benefits to his medical provider, Gables Insurance Recovery, Inc. (“Provider”). The Provider billed Mr. Pico’s insurer, State Farm Mutual Automobile Insurance Company (“State Farm”), $1,425.00 for medical services rendered to the insured. State Farm reduced reimbursement and paid the Provider $237.38.00.1 The sole issue at trial was the reasonable price for the medical services.² Pursuant to the standard jury instructions and model verdict form, the jury answered two questions and rendered the following verdict: 1. Are the charges for the services reasonable? YES ___ NO __x__ If you find the charge for a service or services reasonable, you should award that amount as damages. If you find the charge for a service or services is not reasonable, you should award an amount that the greater weight of the evidence shows is reasonable.

2. What is the total amount you find reasonable?

$____240.00___ SO SAY WE ALL this 20th day of April 2017.

Following this verdict, State Farm filed a “Motion for Leave to Pay Additional PIP Benefits Pursuant to the Jury’s Verdict Without the Payment Being Deemed a Confession of Judgment” as well as a “Motion for Entry of Defense Final Judgment Pursuant to Jury Verdict.” State Farm argued that because the jury found in question #1 that the amount charged by the Provider ($1,425.00) was not reasonable, State Farm was entitled to a judgment in its favor. The trial court denied the motions and rendered judgment for the Provider in the amount of $2.10.00, with interest. Based upon a stipulation between the parties, the trial court granted the Provider entitlement to its attorney’s fees. Analysis State Farm appeals the trial court’s order denying its motion for permission to pay additional PIP benefits without penalty and its order entering final judgment for the Provider. These issues require the interpretation of the PIP statute and review is therefore de novo. Allstate Ins. Co. v. Holy Cross Hosp., Inc., 961 So. 2d 328 (Fla. 2007), citing Foundation Health v. Westside EKG Assocs., 944 So. 2d 188, 193–94 (Fla. 2006) (applying the de novo standard of review to questions of statutory [*4] interpretation); Aramark Unif. & Career Apparel, Inc. v. Easton, 894 So. 2d 20, 23 (Fla. 2004) (same). State Farm argues that because the jury concluded that the amount billed by the Provider was not reasonable, the Provider failed to meet its burden of proof and therefore was not the prevailing party. To address this issue, we examine two related subsections of the 2008 PIP statute, sections 627.736,(5)(a)¹ and (4)(b), Florida Statutes. Section 627.736(5)(a) provides: (5) CHARGES FOR TREATMENT OF INJURED PERSONS.-- (a)1. Any 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, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment, if the insured receiving such treatment or his or her guardian has countersigned the properly completed invoice, bill, or claim form approved by the office upon which such charges are to be paid for as having actually been rendered, to the best knowledge of the insured or his or her guardian. In no event, however, may such a charge be in excess of the amount the person or institution customarily charges for like services or supplies. With respect to a determination of 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, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.

[*5] 2. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges: * * * f. For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B.

(2008) (emphasis added).³ Applying section 627.736(5)(a)¹, a provider “may charge” only a reasonable amount which may not exceed the amount customarily charged and payments customarily accepted by the provider. The insurer “may pay” for such charges directly to the medical provider rendering the service. This section of the statute does not address what happens when the insurer decides to pay a reduced amount or partially pays, as it did here. State Farm’s argument4 relies upon section (5)(a)¹ but ignores section 627.736(4)(b). Section 627.736(4)(b) of the PIP statute expressly addresses partial underpayments and the consequences for an untimely partial underpayment. We are required to read statutes relating to the same subject matter in pari materia. See Fla. Dept. of Hwy. Safety and Motor Vehicles v. Hernandez, 74 So. 3d 1070 (Fla. 2011), as revised on denial of reh'g (Nov. 10, 2011). Section 627.736(4)(b) addresses this 4 The verdict form does not support State Farm’s position. The form does not instruct the jury after answering the first question that it has ruled for the Defendant and to sign and date the verdict, but rather, requires the jury to find and write in the reasonable sum for the charges. [*6] matter as follows: (b) Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. . . .Any part or all of the remainder of the claim that is subsequently supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer. When an insurer pays only a portion of a claim or rejects a claim, the insurer shall provide at the time of the partial payment or rejection an itemized specification of each item that the insurer had reduced, omitted, or declined to pay and any information that the insurer desires the claimant to consider related to the medical necessity of the denied treatment or to explain the reasonableness of the reduced charge, provided that this shall not limit the introduction of evidence at trial; . . . . However, notwithstanding the fact that written notice has been furnished to the insurer, any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment. For the purpose of calculating the extent to which any benefits are overdue, payment shall be treated as being made on the date a draft or other valid instrument which is equivalent to payment was placed in the United States mail in a properly addressed, postpaid envelope or, if not so posted, on the date of delivery. This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph.

(emphasis added). State Farm’s argument that a provider who sues for an overdue partial underpayment makes an all-or-nothing gambit to a jury conflicts with section 627.736)4)(b), “[a]ny part or all of the remainder of the claim that is subsequently supported by written notice is overdue if not paid within 30 days [*7] after such written notice is furnished to the insurer.” (emphasis added) Under this section, State Farm is beholden to the provider for a partial nonpayment of reasonable charges plus penalties. The jury instructions and verdict form comport with both section (5)(a)¹ and (4)(b): On whether a charge is reasonable, the jury is instructed: If you find the charge for a service or services reasonable, you should award that amount as damages. If you find the charge for a service or services is not reasonable, you should award an amount that the greater weight of the evidence shows is reasonable.

(emphasis added) (R. 449). If the jury finds that the greater weight of the evidence supports an amount that is more than what the insurer paid, that is a verdict for the claimant. The verdict form asks in question #2, If you find the charge or charges reasonable, you should proceed to number 2. However, if you find the charge or charges unreasonable, you must determine a reasonable amount for the charge or charges, and then proceed to question 2.. 2. What is the total amount you find reasonable?

(emphasis added) The jury instructions and verdict form comport with section 627.736(4)(b) by requiring the jury to determine if “all or any part” of the charge is overdue. Thus, State Farm’s construction of the PIP statute conflicts with the language of section (4)(b), the jury instructions and verdict form. The facts in this case are certainly sympathetic to State Farm’s position – [*8] after all, how could a tiny deficit of $2.10 entitle a provider to judgment in its favor? However, the holding State Farm seeks would apply with equal force to any verdict in excess of the amount paid by an insurer but below the amount charged by the provider. Consider, hypothetically, a provider’s bill for $1000, insurance reimbursement at $100, and a jury verdict for $900. Under this scanrio, question #1 on the verdict, “Are the charges for the services reasonable?” would still be answered “No,” because the jury determined that the total charge was not reasonable. Applying State Farm’s reasoning, even though the insurer shorted the provider $800 in partial reasonable charges, the insurer should still be awarded a judgment and the provider takes nothing. State Farm’s argument, if accepted by any appellate court, would strip every plaintiff of its right to recover partial unpaid reasonable charges no matter how much the jury determined was the reasonable cost for the care, so long as it falls below the amount charged. Unless the provider is prescient enough to bill the precise amount ultimately found by a future jury, the provider cannot recover its reasonable unpaid charges. Despite a jury finding that there are unpaid partial reasonable charges, a provider will never recover these charges because following entry of a defense judgment, the unpaid amounts need never be paid. State Farm tried to address this issue below in its “Motion for Leave to Pay Additional PIP Benefits Pursuant to the Jury’s Verdict Without the Payment Being [*9] Deemed a Confession of Judgment.” State Farm argued that the trial court could grant judgment for State Farm and further grant “permission” to pay the additional unpaid PIP charges without penalty. But a defense verdict, reduced to judgment, requires that the “plaintiff take nothing by the action and defendant go hence without day.” Form 1.991. Fla. R. Civ. P. Whether a verdict for $2.10 or $1,000, there is no existing vehicle through which a trial court could enter a defense judgment and yet require a defendant to pay a plaintiff. State Farm’s largesse below notwithstanding, its novel motion and theory conflict with the Provider’s statutory right to pursue partial nonpayment. In denying State Farm’s motion, the trial judge correctly relied upon the language in Section 627.736(4)(b), the jury instructions and jury verdict. While the overdue amount -- $2.10.00 – certainly is miniscule, we reject the invitation to presume that the verdict merely rounded up the amount paid by State Farm. Interpreting the meaning of a jury verdict invades the province of the jury. As when a trial judge otherwise reduces, sets aside or tinkers with a jury verdict without a legal basis to do so, we rely upon the principles articulated in Smith v. Jackson County, 183 So. 738, 739 (Fla. 1938): . . . [T]here is a province in which judges have the supreme responsibility and likewise, there is a province occupied by juries which judges are not authorized to invade. To warrant a trial judge in setting aside a verdict and granting a new trial, there must be a reason in law for that action. Otherwise, the judge in taking such action invades the province of the jury and departs from the salutary well established principles of American Jurisprudence.

[*10] Because Section 637.736(4)(b) determines that “any part” of a provider’s bill not paid in 30 days is overdue, and because the jury instructions directed the jury to “award an amount that the greater weight of the evidence shows is reasonable,” the jury verdict for a reasonable amount for services in excess of what the insurer paid entitles the Provider to a judgment for the unpaid reasonable charges, plus interest and penalties. For these reasons, we affirm the judgment entered for the Provider below. Appellee’s motion for appellate attorney’s fees pursuant to sections 627.428(8) and 627.736, Florida Statutes, is granted. This matter is remanded to the trial court to fix a reasonable amount. TRAWICK, J., concurs. SANTOVENIA, J., concurs in result.

COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL

[*11] Copies Furnished to: [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]

1 In its Explanation of Benefits, State Farm explained that it reduced reimbursement based upon 200% of the Medicare part B fee schedule. (R. 42, R. 74 Explanation of Benefits Form).