STATE FARM MUTUAL

v.

MARTINEZ HEALTH

WALSH, J.

A personal injury protection (“PIP”) policy under section 627.736, Florida Statutes (2008), establishes the right to coverage for “[e]ighty percent of all reasonable expenses” for medically necessary care related to an auto accident. § 627.736(1)(a), Fla. Stat. (2008). In the breach of contract lawsuit leading up to this appeal, the assignee of the insured, a medical provider, claimed that the insurer failed to pay 80% of its reasonable expenses, while the insurer claimed in response that it correctly paid the claim. In this appeal, we resolve the following question: Who is the prevailing party when a jury verdict determines that the reasonable amount for PIP services is more than what the insurer paid but less than what the provider billed? The applicable statutory provisions, jury instructions and verdict forms lead us to conclude that a jury verdict which is less than the amount charged but more than the amount paid is a verdict for the provider. We therefore affirm the judgment below finding the provider to be the prevailing party. Background Nakita Shim was injured in a car accident, sought medical attention, and assigned her personal injury protection (“PIP”) benefits to her medical provider, Martinez Health, Inc. (“Provider”). The Provider billed Ms. Shim’s insurer, State Farm Mutual Automobile Insurance Company (“State Farm”) $6,595.00 for medical [*3] services provided to their insured. State Farm reduced reimbursement and paid the Provider $3,708.00.1 The Provider sued State Farm for breach of contract to recover the difference, and the case proceeded to jury trial. The sole issue at trial was the reasonable price for the medical services. The jury answered two questions on the verdict form: 1. Were the charges for the services reasonable? YES ___ NO __x__ [If your answer to Question¹ is YES, then you should skip Question², and sign and date the verdict form. If your answer to Question¹ is NO, then answer Question², and sign and date the verdict form.]

2. What are the reasonable charges for the services rendered?

72040 (Cervical X-Ray) $90.83 72070 (Back X-Ray) $90.72 97010 (Hot Packs) $35.00 97124 (Massage) $55.00 99203 (25) (Office Visit) $258.56 97140 (59) (Manual Therapy) $ 56.46 [06/07-07/02] [07/02-08/13] 97012 (Mechanical Traction) $36.60 $36.60 97014 (Electrical Stimulation) $35.82 $35.82 97035 (Ultrasound) $35.75 $35.75 98940 (Adjustment) $52.58 $52.58 99213 (25) (Office Visit) $145.50 [*4] 99213 (25) (Office Visit) $145.50 SO SAY WE ALL, this 21 day of June, 2018.2 The total difference between the amount State Farm paid and the reasonable amount found by the jury was $926.19.00.

Following this verdict, State Farm filed 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 total amount charged by the Provider was not reasonable, the Provider failed to meet its burden of proof and State Farm was entitled to a defense judgment. State Farm further argued that because the jury verdict was the first time it was put on notice of the correct reasonable amount of medical charges, the Provider should be required after the verdict to submit a second, corrected statement of claim to State Farm for the reasonable amount of medical charges, as found by the jury verdict. State Farm argued that it should not, based upon this verdict, be taxed with penalties for its untimely failure to pay the reasonable amount for services, because until the jury verdict, it had not been put on notice of the correct reasonable amount. The trial court denied State Farm’s motions and rendered judgment for the [*5] Provider in the amount of $926.19.00, plus interest and penalties. Analysis If a jury verdict determines that the amount of reasonable PIP charges is more than what the insurer paid but less than what a provider billed, who is the prevailing party?³ A determination of prevailing party requires 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 interpretation); Aramark Unif. & Career Apparel, Inc. v. Easton, 894 So. 2d 20, 23 (Fla. 2004) (same). State Farm argues that because the jury concluded in verdict question #1 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. If the Provider failed to meet its burden of proof, then judgment should be for the defense. In its simplest terms, this case was a breach of contract suit. The breach was the failure of the insurer to pay 80% of all reasonable expenses, the benefits under the policy. § 627.736(1)(a), Fla. Stat. (2008). The jury resolved the dispute on the claim – not solely whether the total charges as billed were reasonable, but what the [*6] reasonable amount of the charges were. If State Farm failed to pay that amount, then it breached the contract of the insured. Stated another way, the benefits under a PIP policy are not the total amount of a provider’s bill, if determined to be reasonable, but rather, 80% of all reasonable expenses. § 627.736(1)(a), Fla. Stat. To analyze this issue, we further examine two additional relevant subsections of the 2008 PIP statute which dictate what medical claims are to be paid and when they are overdue, sections 627.736,(5)(a)¹ and (4)(b), Florida Statutes. 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(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 [*7] 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.

(2008) (emphasis added).

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 relies upon section (5)(a)¹ but downplays relevant language contained within section 627.736(4)(b). Section 627.736(4) addresses “BENEFITS;

WHEN

DUE.” Subsection 627.736(4)(b) expressly addresses partial underpayments and the consequences for an insurer who makes an untimely partial underpayment: (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 [*8] 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 argues that if the jury determines that the provider’s total bill is not reasonable, then State Farm has not breached its contract – that a verdict for any amount less than the total amount of the provider’s bill is a defense verdict. This argument that a provider claiming an overdue partial underpayment makes an all-ornothing 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 after such written notice is furnished to the insurer.” (emphasis added) Under this section, State Farm is beholden to the provider for an untimely partial nonpayment of “any part or all of the reminder” of reasonable charges plus penalties. [*9] The jury instructions and verdict form comport with section 627.736(4)(b) by requiring the jury to determine the total reasonable amount of the charges, which informs the court if “all or any part” of the charge is overdue. On whether a charge is reasonable, the jury was 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. 890).4 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) Thus, State Farm’s construction of the PIP statute conflicts with the language of section (4)(b), the jury instructions and verdict form. In our recent decision in State Farm Mutual Ins. Co. v Gables Insurance The Insurer, the Appellant here, did not file the transcripts of the trial, nor the admitted jury instructions read to the jury at trial. The only transcript provided is an excerpt of a post-trial hearing on the challenged issue of who was the prevailing party. [*10] Recovery a/a/o Pablo Pico Jr. 2017-390-AP-01 (November 13, 2020) (“Pico”), we concluded that if a jury found that reasonable charges were less than what the provider charged but more than what the insurer paid, the provider is the prevailing party. We based our conclusion upon clear statutory grounds found in Section 627.736(4)(b) (2008), the standard jury instructions and verdict form. We further observed that State Farm’s argument, if accepted by an appellate court, would strip every plaintiff of its right to recover its partially unpaid and overdue reasonable charges, payable under sections (1)(a) and (4)(b) of the PIP statute: 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.

Pico, at p. 8.5 In the current case, State Farm presents a new argument: State Farm now argues that the jury verdict was the first time that it was put “on notice” of the true reasonable charge. More than a decade after the services were rendered and the charges were incurred, the Provider should now be required to file a second new claim stating the amount found by the jury. Nowhere in Florida statutory or procedural law is there any foundation for such a duplicative procedure. Further, this [*11] novel two-claim-procedure directly conflicts with additional language found within section 627.736(4)(b) and is therefore erroneous. After stating that “all or any part of” a reasonable charge is overdue if not paid in 30 days, section (4)(b) states: 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.

State Farm argues that because it was never “put on notice” of the correct amount of the claim until the jury rendered its verdict, it is unfair to tax it with penalties for its failure to timely pay an unknown amount. What State Farm overlooks is that section (4)(b) allows such an insurer to pay the charge and reserve its right to later challenge that charge as unreasonable. Again, (4)(b) allows that “[s]uch assertion by the insurer may be made at any time, including after payment of the claim.” (emphasis added) Had State Farm paid the claim, it could have then filed an action to recover or claw-back the inflated and overpaid amount as unreasonable in price. Had the underlying lawsuit been an action filed by State Farm to recover excess benefits, the verdict above would have been a defense verdict. Why? Because the provider, having already been paid in full, would have necessarily been paid the partial sum (if any) later found reasonable by the jury. The insurer, as the plaintiff, would receive [*12] a judgment for the overpayment, the remainder of the sum, plus interest. No penalty would be taxed to the insurer for late payment. Notwithstanding that lawsuits by the insurer are infrequent in this circuit, the legislature has proscribed a clear method to prevent the harm of which State Farm complains. State Farm’s proposed solution – that the Provider file a second claim 10 years later for the same services already determined by the jury – is problematic for three reasons. First, again, there is no statute or rule addressing or permitting such a procedure. Second, requiring that two claims (and, potentially, two actions) be filed to recover one claim – the first merely to determine the amount, the second to recover the amount -- violates the PIP statutory scheme which provides for “swift and virtually automatic payment” of PIP claims.⁶ Finally, such a claim would likely be barred by principles of res judicata,7 collateral estoppel,8 laches or the statute of limitations. Moreover, jury verdicts are not intended to provide advisory opinions. The procedure State Farm advocates would overwhelm and clog an already 7 State Farm’s proposal would appear to violate res judicata principles. See Zikofsky v. Mktg. 10, Inc., 904 So. 2d 520 (Fla. 4th DCA 2005) (elements of res judicata bar successive suits between same parties following adjudication on the merits where four identities exist: identity of thing, cause of action, parties and capacities of parties). 8 The doctrine of “collateral estoppel or issue preclusion, ‘bars relitigation of the same issue between the same parties which has already been determined by a valid judgment,’ even where the present and former cause of action are not the same.” Kowallek v. Lee Rehm, 183 So. 3d 1175, 1177 (Fla. 4th DCA 2016) (quoting Zikofsky, 904 So. 2d at 525). [*13] overloaded county court docket with unnecessary advisory trials. Jury trials are avenues to permanently resolve disputed issues of fact and result in enforceable judgments or dismissals. Final judgments end litigation and judicial labor; they do not satisfy curiosity. Furthermore, if State Farm were granted the defense judgment it seeks, it would be enforceable. A defense judgment orders that the “plaintiff take nothing by the action and defendant go hence without day.” Form 1.991. Fla. R. Civ. P. Armed with a defense judgment, State Farm would be entitled to argue for a dismissal of any second claim by the Provider. 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 is a verdict for the Provider, and therefore 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. [*14] SANTOVENIA, J., concurs in result.

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