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 November 17, 2017

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.

SAWAYA, J.

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 
2

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. The petitioner, Progressive 

Select Insurance Company, 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 we issue this opinion to provide precedent 

and a basis of continuity for future trial court rulings. See Fla. Med. & Injury Ctr., Inc. v. 

Progressive Express Ins., 29 So. 3d 329, 331 (Fla. 5th DCA), review denied, 46 So. 3d 

567 (Fla. 2010) (footnote omitted).

Factual and Procedural Background

A discussion of the circumstances surrounding the accident that led to the 

insured’s claim for PIP benefits is not particularly helpful to resolve the issue before us, 

so we will not dwell on that aspect of the underlying case. It is enough to say that after 

 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 

(Fla. 18th Cir. Ct. Apr. 17, 2015); Garrison Prop. & Cas. Ins. v. New Smyrna Imaging, 

LLC, 23 Fla. L. Weekly Supp. 708a (Fla. 18th Cir. Ct. Jan. 12, 2015).
3

the insured, Jonathan Parent, was involved in an automobile accident, he incurred bills 

for the medical care he received from Florida Hospital. Those bills exceeded the 

deductible amount of $1000 provided in the insurance policy issued by Progressive. As 

is typical in these cases, Parent assigned his PIP benefits under the policy to Florida 

Hospital (hence the designation “a/a/o” in the caption, which means “as assignee of”).

The bill Florida Hospital sent to Progressive for Parent’s treatment calculated the amount 

owed as follows:

 $2,781.00 Total hospital charge

- $1,000.00 Parent’s PIP deductible

 $1,781.00

 X 75% Applying section 627.736(5)(a)1.b.

 $1,335.75

 X 80% Applying section 627.736(5)(a)1.

 $1,068.60 Amount Due

Progressive remitted payment, but it used a different payment methodology when 

applying section 627.736(5)(a)1.b.’s reimbursement limitation provision:

 $2,781.00 Total hospital charge

 X 75% Applying section 627.736(5)(a)1.b.

 $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 
4

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 

sources, including the interpretation of statutes. Allstate Ins. v. Kaklamanos, 843 So. 2d 

885, 890 (Fla. 2003). 

Statutory Analysis

In order to determine whether the circuit court applied the correct law, we must 

analyze the statutory provisions at issue, which are an integral part of the Florida Motor 

Vehicle No-Fault Law.2 Florida’s No-Fault Law has historically been a complicated body 

 2 Section 627.730, Florida Statutes (2014), provides that “[s]ections 627.730-

627.7405 may be cited and known as the ‘Florida Motor Vehicle No-Fault Law.’”
5

of legislation, and the constant revisions and amendments since its inception3 have 

contributed to its complexity. See Fla. Med., 29 So. 3d at 337. As will be seen a little 

later, however, instances may arise when the historical development of the law reveals 

clear legislative intent. When interpreting the provisions of the No-Fault Law, the Florida 

Supreme Court has explained that the statutes “must be liberally construed in order to 

effect the legislative purpose of providing broad PIP coverage for Florida motorists.” Blish 

v. Atlanta Cas. Co., 736 So. 2d 1151, 1155 (Fla. 1999); see also Vasques v. Mercury 

Cas. Co., 947 So. 2d 1265, 1269 (Fla. 5th DCA 2007) (“[B]oth this court and the Florida 

supreme court have held the provisions of Florida’s No-Fault Act must be construed 

liberally in favor of the insured.”).

We begin our analysis with section 627.739, which states in pertinent part:

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, 

 3 Referring just to section 627.736, which is commonly known as the PIP statute, 

the court in GEICO General Insurance v. Virtual Imaging Services, Inc., 141 So. 3d 147, 

152 (Fla. 2013), stated that “[s]ince the PIP statute was first enacted in 1971, the 

Legislature has amended the statute numerous times, including every year between 1987 

and 1999, and again every year between 2003 and 2009.”
6

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 

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). 
7

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). 

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.’”). 
8

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.

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. 
9

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: 

[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.
10

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, 

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 

 

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.”).
11

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 

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).
12

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. If 

the failed amendment is a clarification, the refusal of the Legislature to adopt it is a 

declaration that it does not accurately express the meaning of the current version of 

section 627.739(2) and indicates a rejection of the argument made by Progressive and 

the dissent. But it is not a clarification. 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. 
13

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 

was not contested in the trial court and is not an issue raised by any party. 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 

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 
14

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.” MerriamWebster’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. 

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 
15

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, 

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 
16

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.

DENIED.

EDWARDS, J., concurs.

PALMER, J., dissents, with opinion.
17

PALMER, J., dissenting. 5D16-2333

I respectfully dissent. 

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

and 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 Serv. 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 

that is unreasonably high and thus not covered by PIP. “The notion that a deductible 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. 2nd DCA 2004).
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The majority relies on the fact that the Legislature failed to enact a proposed law 

in 2016 that 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.