IN THE SUPREME COURT OF FLORIDA. Case No. SC L.T. Case No. 3D GEICO GENERAL INSURANCE COMPANY, Petitioner,

Transcription

1 IN THE SUPREME COURT OF FLORIDA Case No. SC L.T. Case No. 3D GEICO GENERAL INSURANCE COMPANY, Petitioner, v. VIRTUAL IMAGING SERVICES, INC., a/a/o Maria Tirado, Respondent. PETITIONER S REPLY BRIEF Frank A. Zacherl Suzanne Youmans Labrit Shutts & Bowen LLP Counsel for Petitioner 4301 Boy Scout Blvd., Suite 300 Tampa, Florida Telephone: (813) Facsimile: (813) and- 200 South Biscayne Boulevard 1500 Miami Center Miami, Florida Telephone: (305) Facsimile: (305)

2 TABLE OF CONTENTS Page TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii INTRODUCTION... 1 ARGUMENT... 1 I. Virtual s Record Distortions and Meritless Mootness Claims Are Improper Attempts to Avoid Review... 1 II. III. IV. A. GEICO s 2011 Policy Revision is Not Before This Court... 1 B. Virtual Misrepresents the Stipulation and Misstates the Certified Question... 2 The PIP Statute Does Not Establish a Dual Methodology for Payment of PIP Benefits... 3 Fee Schedule Opinions Contravene Holy Cross and Are Detrimental to Insureds... 6 Legislature Authorized Insurers to Use Fee Schedules to Limit Provider Reimbursements... 9 V. PIP Fraud is Relevant to the Purpose of the Statutory Fee Schedules CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE i-

3 TABLE OF AUTHORITIES Cases Page(s) AHCA v. Orlando Regional Healthcare Sys., Inc., 617 So.2d 385 (Fla. 1 st DCA 1993)... 2 Allstate Ins. Co. v. Holy Cross Hosp., Inc., 961 So.2d 328 (Fla. 2007)... 5, 6, 7 Carlile v. Game & Fresh Water Fish Comm n, 354 So.2d 362 (Fla. 1978) Dadeland Depot v. St. Paul Fire & Marine Ins. Co., 945 So.2d 1216 (Fla. 2006)... 9, 11, 12 DCI MRI, Inc. v. Geico Indem. Co., 79 So.3d 840 (Fla. 4 th DCA 2012)... 5 Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452 (Fla. 1992)... 4 Fortune Ins. Co. v. Everglade Diagnostics, Inc., 721 So.2d 384 (Fla. 4 th DCA 1998)... 9 Geico Indem. Co. v. Virtual Imaging Servs., Inc., 79 So.3d 55 (Fla. 3d DCA 2012)... 5 Geico Indem. Co. v. Virtual Imaging Servs., Inc., 90 So.3d 321 (Fla. 3d DCA 2012)... 8 Grant v. State Farm Fire & Cas. Co., 638 So.2d 936 (Fla. 1994) Kingsway Amigo Ins. Co. v. Ocean Health Inc., 63 So.3d 63 (Fla. 4 th DCA 2011)... 5, 12 Koile v. State, 934 So.2d 1226 (Fla. 2006)... 5 Mansfield v. Rivero, 620 So.2d 987 (Fla. 1993) ii-

4 TABLE OF AUTHORITIES (continued) Page Millennium Diagnostic Imaging Center v. Security Nat l Ins. Co., 882 So.2d 1027 (Fla. 3d DCA 2004)... 12, 13 MRI Scan Ctr., Inc. v. Allstate Ins. Co., 2007 WL (S.D. Fla. 2007)... 8 Nationwide Mut. Ins. Co. v. Jewell, 862 So.2d 79 (Fla. 2d DCA 2003)... 6, 7 Pino v. Bank of New York, 76 So.3d 927 (Fla. 2011)... 2 Scarfo v. Ginsberg, 817 So.2d 919 (Fla. 4 th DCA 2002) Sheldon v. Tiernan, 147 So.2d 593 (Fla. 2d DCA 1963)... 2 State v. Calderon, 951 So.2d 1031 (Fla. 3d DCA 2007) Stone v. Jackson Nat l Life Ins. Co., 934 So.2d 532 (Fla. 3d DCA 2006)... 9 Warren v. State Farm Fire & Cas. Co., 899 So.2d 1090 (Fla. 2005)... 6, 11 Statutes Fla. Stat (1)(a) Fla. Stat (2) Fla. Stat Fla. Stat (1)(a)... passim Fla. Stat (5)... 6, 11 Fla. Stat (5)(a) iii-

5 TABLE OF AUTHORITIES (continued) Page Fla. Stat (5)(a) Fla. Stat (5)(a) Fla. Stat (5)(a)2.f... 5, 8, 9, 10 Fla. Stat (5)(a) Fla. Stat (5)(e) Fla. Stat , 14 Other Authorities Committee on Banking and Insurance, Florida Motor Vehicle Law: Report No (Nov. 2005) House Staff Analysis, HB 15C (October 4, 2007) Senate Bill Analysis and Fiscal Impact Statement, CS/SB 40-C (October 4, 2007) iv-

6 INTRODUCTION The 2008 fee schedule amendments were enacted to control abusive provider billing and related litigation, and they do so by authorizing insurers to limit reimbursement in accord with specified Medicare fee schedules. Everyone -- insurers, insureds and providers -- was on notice that fee schedule limitations were permitted. The Legislature did not adopt an optional alternative methodology for limiting PIP provider reimbursement under the fee schedules, and it has never required insurers to pay providers whatever amounts they charge. As this Court has recognized, public interests are not subverted (and insureds are protected) when PIP provider reimbursements are limited to reasonable amounts based on standardized fee schedules or contractual agreements. This case presents the opportunity to enforce public policy as pronounced by the Legislature, and this Court should do so by answering the certified question in the affirmative. ARGUMENT I. Virtual s Record Distortions and Meritless Mootness Claims Are Improper Attempts to Avoid Review. A. GEICO s 2011 Policy Revision is Not Before This Court. Virtual devotes much ink to GEICO s revised policy form, which became effective in 2011, after judgment was entered in this case. Ans. Br. at 3, 14-15, 23, 28. As an initial matter, since the 2011 policy revision is not in the record and was never considered by the trial court or by the Third District, Virtual s argument -1-

7 should be stricken, as should Tab 2 of Virtual s Appendix. Sheldon v. Tiernan, 147 So.2d 593 (Fla. 2d DCA 1963) ( appellate review is, of course, confined to the record on appeal ); AHCA v. Orlando Regional Healthcare Sys., Inc., 617 So.2d 385 (Fla. 1 st DCA 1993) (granting motion to strike extra-record appendix material). Although Virtual claims the 2011 policy revision renders the certified question moot (Ans. Br. at 15, 24, 28), Virtual s own amicus proves otherwise. Amicus St. Pete MRI ( SPMRI ) is the named plaintiff in at least ten class actions currently pending against various Florida insurers (including GEICO) in which PIP providers seek relief concerning the exact same legal issue presented in this appeal. SPMRI Motion for Leave to File Amicus Brief at 4-5; see also SPMRI Brief at 1. Even if the 2011 policy revision somehow rendered the instant claim moot (emphatically, it does not), mootness does not destroy this Court s jurisdiction because this case raises a question of great public importance which is obviously recurrent. Pino v. Bank of New York, 76 So.3d 927, 929 (Fla. 2011). B. Virtual Misrepresents the Stipulation and Misstates the Certified Question. As it did below, Virtual mischaracterizes the parties stipulation by saying that GEICO conceded the reasonableness of Virtual s bill. Ans. Br. at 6. GEICO did no such thing; instead, to frame the purely legal question of whether GEICO properly relied upon the statutory fee schedule to determine the amount payable to Virtual, GEICO agreed not to challenge the reasonableness of -2-

8 Virtual s bill. See In. Br. at 2, n.2. Virtual wrongly says the certified question is whether the fee schedule [may] be used as an element to determine reasonableness, and then argues that the question (as restated by Virtual) was not addressed below because it was excluded by the parties stipulation. Ans. Br. at 18, 19. The stipulation and certified question speak for themselves and Virtual s semantic games do not warrant further discussion. Review is appropriate. II. The PIP Statute Does Not Establish a Dual Methodology for Payment of PIP Benefits. Invoking the flawed dual methodology construct of the Fee Schedule Opinions, Virtual recasts the certified question as whether PIP insurers can pay for healthcare services based upon the new Medicare fee schedule method instead of the reasonable amount method expressly promised in the insurance policy. Ans. Br. at 2. There is only one method for payment of PIP medical benefits, which is that insurers must provide coverage for reasonable expenses for medically necessary services. Fla. Stat (1)(a). 1 To that end, providers may charge PIP insurers only a reasonable amount for such services; federal and state fee schedules are factors to consider in determining reasonableness of provider charges. Fla. Stat (5)(a)1. Fla. Stat (5)(a)2 goes on to 1 Unless otherwise indicated, all references are to the 2008 version of the PIP statute. -3-

9 specifically authorize insurers to limit reimbursement for particular medical services in accord with listed Medicare fee schedules. Id. Read together, as they must be, 2 these provisions establish (1) a single, mandatory coverage requirement: insurers must reimburse 80% of reasonable medical expenses, and (2) that the fee schedule methodology necessarily embodies the Legislature s determination that medical provider reimbursement at rates tied to (and higher than) Medicare rates is reasonable for purposes of satisfying the coverage mandate. Put differently, a statutorily authorized limitation on provider reimbursement does not constitute an alternate methodology that somehow alters the mandatory coverage requirement. In short, there is no dual methodology. The dual methodology construct is based on two fundamentally erroneous suppositions: (1) that reasonable means the amount charged by the provider and (2) that limiting reimbursement under the fee schedules results in payment of less 2 Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla. 1992) ( all parts of a statute must be read together courts must give effect to all statutory provisions and construe related provisions in harmony with one another. ) (emphasis in original; citations omitted). -4-

10 than a reasonable amount within the meaning of the coverage mandate. 3 But if amount charged means reasonable for purposes of the coverage requirement of subsection 1(a), then the entirety of subsection (5)(a) is meaningless. This cannot have been the Legislature s intent. E.g., Koile v. State, 934 So.2d 1226, 1231 (Fla. 2006) ( the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless. ). Conflating reasonable expenses with the amount charged also runs afoul of this Court s holding in Allstate Ins. Co. v. Holy Cross Hosp., Inc., 961 So.2d 328 (Fla. 2007). As Virtual does here, the provider in Holy Cross argued that because the subject PIP policy did not contain notice that providers would be paid at reduced preferred provider rates, the insurer was required to pay eighty percent of all reasonable medical expenses, i.e., eighty percent of the full bill as charged, as set forth in section (1)(a). Holy Cross, 961 So.2d at See Ans. Br. at 5 (fee schedule payments are substantially lower than required by the reasonable amount method of Section (1)(a) ); Geico Indem. Co. v. Virtual Imaging Servs., Inc., 79 So.3d 55, 57 (Fla. 3d DCA 2012) (GEICO could reimburse Virtual for 80% of the amount billed, or (b) for 80% of 200% of the amount listed on the Medicare fee schedule )(emphasis added); DCI MRI, Inc. v. Geico Indem. Co., 79 So.3d 840, 842 (Fla. 4 th DCA 2012) (reimbursement under fee schedules is a lesser amount than 80% of reasonable expenses incurred ); Kingsway Amigo Ins. Co. v. Ocean Health Inc., 63 So.3d 63, 66 (Fla. 4 th DCA 2011) (policy covering 80% of medically necessary expenses as provided in subsection (1)(a) provides greater coverage than safe harbor amount found in subsection (5)(a)2.f. ); SPMRI Br. at 3 (there is a gross disparity between the reasonable amount charged and the fee schedule amount). -5-

11 (emphasis added). This Court disagreed, holding that payment at reduced rates does not violate the coverage requirement of subsection (1)(a) so long as the insurer pays eighty percent of all reasonable expenses. Id. at 335 (emphasis in original). Thus, Holy Cross established that reasonable expenses does not mean amount charged. III. Fee Schedule Opinions Contravene Holy Cross and Are Detrimental to Insureds. In Holy Cross, this Court established that insurers may reimburse providers at reduced rates established in standardized schedules if authorized by the PIP statute -- regardless of whether such reimbursement methodology is mentioned in the PIP policy -- and that payment at such reduced rates does not violate the mandatory coverage requirement of the PIP statute. This conclusion rested at least partially on the recognition that provider reimbursement at reduced rates benefits PIP insureds. See Nationwide Mut. Ins. Co. v. Jewell, 862 So.2d 79, 86 (Fla. 2d DCA 2003) (reimbursing providers at reduced rates benefits insureds because each treatment provided [at a reduced rate] costs the insurer less than the same treatment given [at non-reduced rates, so] more services will be available to the insured within the $10,000 PIP policy limits ) (emphasis in original), approved, Holy Cross, 961 So.2d at 336; see also Warren v. State Farm Fire & Cas. Co., 899 So.2d 1090, (Fla. 2005) (subsection (5) billing requirements -6-

12 are calculated to reduce unnecessary medical costs which ultimately benefits consumers ). Applying Holy Cross to this case dictates the conclusion that an insurer need not elect the fee schedules in a policy as a condition to their use, because (a) the statute authorizes use of the fee schedules and (b) providers routinely accept the fee schedule rates from Medicare. Thus, reimbursing providers at 80% of twice those rates cannot violate the insurer s obligation under subsection (1)(a) to provide coverage for reasonable expenses. See also Jewell, 862 So.2d at 86 ( Insofar as the provisions of the no-fault law and of the PIP policies are concerned, there is simply no basis for complaining that a payment rate a provider has agreed to accept is inadequate and therefore not reasonable. ). 4 Virtual argues that because it holds an assignment of benefits from GEICO s insured, the policy must be construed favorably to it (i.e., such that the highest amount possible is paid to Virtual). Notwithstanding that providers, as assignees, stand in the shoes of insureds, Virtual s argument ignores the very real conflict of interest between insureds and providers in this setting. Providers naturally want 4 Virtual speculates (with no record support) that reimbursing providers under the fee schedules will reduce the number of medical professionals willing to treat PIP insureds and negatively affect the quality of healthcare for PIP insureds. Ans. Br. at 27. Even if reimbursing providers at Medicare rates somehow limits quality or availability of medical care (a questionable proposition at best), it does not follow that paying PIP providers twice Medicare s rates has such an impact. -7-

13 the highest reimbursement possible, which is directly at odds with insureds interests in maximizing benefits and minimizing out-of-pocket costs -- exactly what Fla. Stats (5)(a)2.f and (5)(a)5 are designed to accomplish, and exactly what Virtual (and any other self-motivated provider) wants to avoid. It makes no pragmatic or legal sense to require insurers to reimburse providers in a way that accelerates depletion of insureds benefits and increases their out-of-pocket costs. See Virtual II, 90 So.3d at 327 ( interpreting PIP insurance policies to cover the greatest amount possible adversely affects insureds by more rapidly depleting their $10,000 coverage limit interpreting PIP insurance policies in favor of insureds actually requires reading the policies to cover the lowest amount possible. ) (Rothenberg, J. concurring) (emphasis in original). In other words, construing PIP policies to pay providers the greatest amount possible is detrimental to insureds and is inconsistent with the concept that an assignee is entitled to the same (not more) than its assignor. 5 Doing so also violates the requirements to construe PIP policies favorably to insureds and not to 5 Virtual insists that, as assignees, providers have all the rights of a policyholder. Ans. Br. at 40. But an assignment of PIP benefits is just that -- the right to receive policy benefits due the insured; it is not an assignment of the entire policy and in no way should allow the provider to achieve an interpretation favoring the provider at the expense of the insured. See MRI Scan Ctr., Inc. v. Allstate Ins. Co., 2007 WL , *2 (S.D. Fla. 2007) (applying PIP fee schedule limitations to provider claim for med pay benefits; recognizing that PIP policy should be construed favorably to insured patients, not their medical providers). -8-

14 limit coverage. Paying providers the greatest amount possible necessarily limits PIP coverage available to insureds and is thus unfavorable to insureds, albeit favorable to providers. See Init. Br. at 8, 34. IV. Legislature Authorized Insurers to Use Fee Schedules to Limit Provider Reimbursements. As Virtual points out, courts are obligated to construe statutes in accord with their plain words. Ans. Br. at 31. Here, the plain words of the statute say that insurers may limit reimbursement to providers in accord with the Medicare fee schedules. Fla. Stat (5)(a)2.f. There are no words in the operative version of the statute requiring insurers to notify insureds via policy language or an election that provider reimbursements may be limited as authorized under subsection (5)(a)2.f. That alone should compel an affirmative answer to the certified question, which turns on whether insurers may rely on the fee schedules absent a policy provision electing to do so. See Dadeland Depot v. St. Paul Fire & Marine Ins. Co., 945 So.2d 1216, 1222 (Fla. 2006) (court s task is to construe statute as written not as we think it should have been written ); Stone v. Jackson Nat l Life Ins. Co., 934 So.2d 532, 535 (Fla. 3d DCA 2006) (declining to read in requirement that life policy contain provisions regarding statutory interest computations on death benefit where statute did not mandate inclusion of such provisions to policy); Fortune Ins. Co. v. Everglade Diagnostics, Inc., 721 So.2d -9-

15 384, 385 (Fla. 4 th DCA 1998) (courts are not free to add provisions to the PIP statute). Stripped to its essence, Virtual s argument is that reimbursing providers in accord with Fla. Stat (5)(a)2.f meets the reasonable medical expenses coverage mandate of (1)(a) only if the insurer makes a policy-based election to use the fee schedules. This is wrong for three reasons. First, the Legislature mandated that PIP insurers must always reimburse reasonable medical expenses so it could not in the same breath have determined that insurers could pay something less than reasonable just by putting magic words in a policy. Second, Virtual s argument incorporates an incorrect assumption, i.e., that providers are entitled to policy-based notice of an insurer s reimbursement methodology. Ans. Br. at But providers don t buy PIP policies and the PIP statute doesn t require insureds to furnish the policy at the time of treatment, nor does it contemplate the insurer requesting such information from insureds. See (5)(e)(specifying obligations of insureds and providers at time of treatment). 6 Moreover, insureds (and in turn providers, as assignees) are on notice of the statutory provisions governing PIP provider reimbursement limitations. Grant v. State Farm Fire & Cas. Co., 638 So.2d 936, 938 (Fla. 1994) ( where a 6 Virtual s notice argument is insincere given Virtual s allegation that it did not have a copy of the applicable policy. See Complaint, 12 (Reply Appendix 1). -10-

16 contract of insurance is entered into on a matter surrounded by statutory limitations and requirements, the parties are presumed to have entered into such agreements with reference to the statute, and the statutory provisions become a part of the contract. ); see also Warren, 899 So.2d at 1094 (subsection 5 of the PIP statute establishes procedure through which medical providers may file claims and receive payment ). Third, Virtual s argument necessarily (and impermissibly) requires this Court to read requirements into the statute that simply are not there. As former Judge Farmer (appearing here as counsel for provider amicus FMA) aptly explained, [t]o read the statute as [Virtual] suggest[s] would be to add words to the statutory text in the belief that some textually unspoken legislative intent so required. Scarfo v. Ginsberg, 817 So.2d 919, 921 (Fla. 4 th DCA 2002). In sum, Virtual s arguments regarding policy-based notice lack foundation in fact or law. Virtual attempts to sidestep GEICO s argument regarding the 2012 amendment to the PIP statute by asserting that the amendment clarified rather than changed the statute. Ans. Br Virtual ignores the principle that where statutory language is unambiguous, subsequent amendments are not relevant to a determination of legislative intent. Dadeland Depot, 945 So.2d at Neither Virtual nor GEICO contends that the relevant pre-amendment statutory provisions are ambiguous, so the 2012 amendment properly is construed as a substantive -11-

17 change to the statute. Carlile v. Game & Fresh Water Fish Comm n, 354 So.2d 362, 364 (Fla. 1978) ( when a statute is amended, it is presumed that the Legislature intended it to have a meaning different from that accorded to it before the amendment ). Applying this rule of construction, the 2012 amendments demonstrate that the Legislature knew how to require insurers to provide policybased notice of their intent to use the fee schedules, but chose not to do so until Accordingly, no election or notice requirement may be read into the preamendment version of the statute. 7 Virtual cites Millennium Diagnostic Imaging Center v. Security Nat l Ins. Co., 882 So.2d 1027 (Fla. 3d DCA 2004) to support its erroneous conclusion that the 2012 amendments were enacted to clarify rather than change the PIP statute. Millennium is readily distinguishable. There, the Legislature amended the statute to address confusion regarding which Medicare fee schedule to use in determining provider reimbursements the original version of the statute referred only to the allowable amount under Medicare Part B, and the amendment specifically identified the allowable amount under the participating physician fee schedule of Medicare Part B. Id. at 1029 n.1 (emphasis in original). Notably, the 7 Virtual s related contention that the Legislature intended to codify Kingsway is negated by the fact that Kingsway is mentioned nowhere in the legislative history of the 2012 amendments. See Dadeland Depot, 945 So.2d at (rejecting argument that amendment should be viewed as clarification where legislative history was silent regarding why change was made) (Pariente, J., concurring). -12-

18 legislative history reflected the Legislature s intent to clarify that the participating fee schedule was the proper schedule under the original statute. Id. at 1030 (emphasis added). No such intent was expressed or is present here. Furthermore, in Millennium, the amendment was read to have retroactive application. Id. at 1029 (recognizing that statute was amended after the trial court entered its order in this case but applying amendment to reject MRI provider s claim for higher reimbursement). Here, the amendment specifies a prospective effective date and thus cannot be read retroactively, a conclusion with which Virtual apparently agrees. See Ans. Br. at 11 (castigating GEICO for retroactively applying statutory fee schedules in unrelated case). Virtual also wrongly contends that Fla. Stat which appears in the Insurance Code chapter entitled Health Insurance Policies -- requires PIP policies to specify the methodology that will be used to determine provider reimbursements. Ans. Br. at This Court has established that PIP is different to health insurance, 8 and the Code supports this finding. By definition, casualty insurance includes motor vehicle insurance. 9 Casualty insurance 8 See Mansfield v. Rivero, 620 So.2d 987, 989 (Fla. 1993) (this Court has clearly distinguished motor vehicle no-fault insurance from health insurance ). 9 Casualty insurance includes coverage for medical, hospital, surgical, and disability benefits to persons injured in motor vehicle accidents. Fla. Stat (1)(a). This is precisely the purpose of the No-Fault Law. Fla. Stat

19 (including motor vehicle insurance) is expressly exempt from Code provisions applicable to health insurance. See Fla. Stat (2) ( The provision of medical, hospital, surgical, and funeral benefits as part of other insurance as stated under paragraphs (a) (vehicle) of subsection (1) shall not be subject to provisions of this code applicable to life or health insurance. ). Virtual s argument regarding Fla. Stat is thus entirely irrelevant and should be disregarded. V. PIP Fraud is Relevant to the Purpose of the Statutory Fee Schedules. Virtual asserts that because this case does not involve allegations of billing fraud on this specific claim, arguments regarding PIP provider fraud are a red herring and wrong as a matter of law. Ans. Br. at 10, Virtual misses the point. GEICO does not claim that Virtual s billing in this case was fraudulent; GEICO asserts that the statutory fee schedules were enacted in response to systemic fraud and abusive billing practices by PIP medical providers. 10 Virtual says there is no proof that [the 2008 amendments] to the PIP statute have anything to do with curbing fraud or abusive billing practices. Not so! It is indisputable that a primary objective of the amendments was to curb provider billing abuse. As the legislative history reflects, PIP has been subject to a variety of fraudulent activities...[which] include overbilling/build-up of legitimate 10 GEICO agrees with Virtual that the fee schedules were enacted primarily to give a mechanism to lower rates. Ans. Br. at 11. Given Virtual s concession of this point, its insistence on recovering rates exponentially higher than those authorized by the fee schedules is puzzling, to say the least. -14-

20 claims 11 and PIP laws are being exploited by dishonest medical treatment providers and unscrupulous attorneys [] fraudulently bill[ing] insurance companies for unnecessary or non-existent treatments. 12 By enacting the fee schedules, the Legislature sought to control PIP medical costs [and] reduce litigation over the reasonableness of medical fees. 13 These goals are entirely appropriate considerations in construing the statutory provisions at issue. E.g., State v. Calderon, 951 So.2d 1031, 1032 (Fla. 3d DCA 2007) ( In construing a statute, courts must look to the purpose of the statute. ). Summarizing, the PIP statute features a decades-long history of provider billing abuse and related litigation, the effect of which has been to drain consumer pocketbooks and judicial resources. The Legislature enacted the fee schedule limitations to set an objective standard for reimbursement and eliminate fee-driven litigation over reasonableness. These goals will be defeated unless this Court answers the certified question in the affirmative and disapproves the Fee Schedule Opinions. 11 House Staff Analysis, HB 15C (October 4, 2007). 12 Senate Bill Analysis and Fiscal Impact Statement, CS/SB 40-C (October 4, 2007). 13 Senate Committee on Banking and Insurance, Florida Motor Vehicle Law: Report No (Nov. 2005). -15-

21 CONCLUSION For each and all of the foregoing reasons, GEICO respectfully requests that this Court answer the certified question in the affirmative, quash the decision in Virtual II and disapprove the Fee Schedule Opinions. Respectfully submitted, Shutts & Bowen LLP Counsel for Petitioner 4301 W. Boy Scout Blvd., Ste. 300 Tampa, Florida Telephone: (813) Facsimile: (813) and Miami Center 201 S. Biscayne Blvd Miami, Florida Telephone: (305) Facsimile: (305) By: Frank A. Zacherl fzacherl@shutts.com Florida Bar No Suzanne Youmans Labrit slabrit@shutts.com Florida Bar No

22 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served this day of December, 2012 via to the following: Harley N. Kane, Esq. Joseph R. Littman, Esq. The Greenspan Law Firm, P.A N. Federal Highway, Suite 101 E Boca Raton, Florida serviceby @greenspanlawfirm.com Counsel for Respondent Raoul G. Cantero, Esq. White & Case LLP Southeast Financial Center, Suite S. Biscayne Boulevard Miami, Florida Raoul.cantero@whitecase.com Counsel for Amici AIA and PCI Lawrence M. Kopelman, Esq. Kopelman & Blankman, P.A. 200 S.W. 1 st Ave., 12 th Floor Ft. Lauderdale, Florida Counsel for Amicus FFI John R. Beranek, Esq. Ausley & McMullen Post Office Box 391 Tallahassee, Florida Counsel for Respondent Cynthia S. Tunnicliff, Esq. Gerald Don Nelson Bryant, IV, Esq. Pennington, Moore, et. al 215 South Monroe Street, Second Floor (32301) Tallahassee, Florida cynthia@penningtonlaw.com Counsel for Amicus Fla. Justice Reform Institute Nancy M. Wallace, Esq. Akerman Senterfitt 106 E. College Ave., Suite 1200 Tallahassee, Florida Counsel for Amici PIFF and NAMIC Nancy Copperthwaite, Esq. Marcy Aldrich, Esq. Akerman & Senterfitt, LLP One Southeast Third Avenue, 25 th Fl Miami, FL Counsel for Amici PIFF and NAMIC -17-

23 David Caldevilla, Esq. Michael R. Bray, Esq. P.O. Box 2350 Tampa, FL Counsel for Amicus SPMRI Edward H. Zebersky, Esq. Zebersky Payne LLP 110 SE 6 th Street, Ste Ft. Lauderdale, FL Counsel for Amicus FMA Gary M. Farmer, Sr., Esq. Farmer Jaffe Weissing Edwards Fistos & Lehrman, P.L. 425 N. Andrews Ave., Ste. 2 Ft. Lauderdale, FL Counsel for Amicus FMA G. Bart Billbrough, Esq. Billbrough & Marks, P.A. 100 Almeria Ave., Suite 320 Coral Gables, FL Counsel for Amicus Gables Ins. Recovery, Inc. CERTIFICATE OF COMPLIANCE Suzanne Youmans Labrit I hereby certify that this brief complies with Florida Rule of Appellate Procedure 9.210(a)(2) because it was prepared using Times New Roman 14-point font. TPADOCS Suzanne Youmans Labrit -18-