Progressive Select Insurance Company v. Emergency Physicians, Inc., 47 Fla. L. Weekly D1327a (Fla. 5th DCA June 17, 2022) addressed the priority of payments of PIP bills sent by emergency and non-emergency care providers on the same day.

The specific question before the Fifth District was:

when multiple bills are received by an insurer on the same day with one being from an emergency provider and another from a non-emergency provider, without any evidence establishing a precise order of receipt, must the insurer apply the non-emergency provider’s bill to the deductible first, thereby prioritizing the full payment of the emergency provider’s bill?

In this case, a non-emergency care provider submitted a bill to Progressive on the same day that the plaintiff, ERG, an emergency care provider, submitted its bill. Progressive processed ERG’s bill first and applied it to the policy deductible. Once the deductible was met, it paid the remainder of ERG’s bill and it paid the non-emergency provider’s bill in full. There was no documentation of which bill was received first that day.

Thereafter, ERG sued Progressive alleging that Progressive improperly applied its medical bill against the policy’s deductible first. ERG argued that in a situation such as this one where it is unclear which bill Progressive received first on the day in question, Progressive should have prioritized the emergency care provider by applying the non-emergency care provider’s bill to the deductible first.

The trial court found for ERG, holding that an emergency service provider’s claim should be prioritized. In so holding, the trial court relied on sections 627.736(4)(c), 627.739(2), Florida Statutes (2015), and Mercury Insurance Co. of Florida v. Emergency Physicians of Central Florida, LLP, 182 So. 3d 661 (Fla. 5th DCA 2015), as support.

On appeal, the Fifth District considered the aforementioned statutes and the Mercury opinion.

Section 627.736(4)(c) states in relevant part:

Upon receiving notice of an accident that is potentially covered by [PIP] benefits, the insurer must reserve $5,000 of [PIP] benefits for payment to physicians licensed under chapter 458 or chapter 459 or dentists licensed under chapter 466 who provide emergency services and care, as defined in s. 395.002, or who provide hospital inpatient care. The amount required to be held in reserve may be used only to pay claims from such physicians or dentists until 30 days after the date the insurer receives notice of the accident. After the 30-day period, any amount of the reserve for which the insurer has not received notice of such claims may be used by the insurer to pay other claims.

(emphasis added).

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).

(emphasis added).

In Mercury, the court had explained that these two provisions require that an emergency service provider’s bill “will be prioritized for payment; however, any such payment will be subject to any deductibles that exist in the insurance contract between the insured and the insurer.” 182 So. 3d at 668. Mercury further states that section 627.739(2) requires that any policy deductible must be applied to 100 percent of bills submitted and that the statute makes “no distinction between bills submitted by an emergency service provider and bills submitted by a non-emergency service provider.” Id. at 667.