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. 5D 16

- 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.
Th is certiorari proceeding concern s 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. The2 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) requir e s the dedu ct ible to be subtracted from the total medical c are charges before applying the statutory reimbursement limitations provided in section 627.736(5)(a)1.b

. , Florida Statutes (201 4 ). The r espondent, Florida Hospital Medical Center , contends that the court applied the correct law in utilizing this methodology. The p etitioner, 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 corr ect methodology

. T his 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. Progr essive Express Ins. , 29 So. 3d 329, 33 1 (Fla. 5th DCA), review denied , 46 So. 3d 567 (Fla. 2010) (footnote omitted)

. **Factual and Procedural Background** A discussion of t he circumstances surrounding the accident that led to the
insured ’ s claim for PIP benefits is not particularly helpful to resolv e the issue before us,
so we will not dwell on th at 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 Heal th 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 incurr ed bills for the medical care he received from Florida Hospital

. Those bills exceeded the deductible amount of $1000 provided in the insurance policy issue d 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 calculat ed the amount owed as follows: $2,78 1.00 Total hospi tal c harge

- $1,000.00 P arent ’ s PIP d e ductible

$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 u sed 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 P arent ’ s PIP d e ductible

$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 c ounty c ourt seeking the $200 difference betwe en what it calculated the PIP benefit amount to be and what Progressive paid. After Progressive filed an answer denying liability and asserting affirmative defense s , b oth parties filed motions for summary judgment.
T he c ounty c ourt 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 plain4 language of s ection 627.739(2) required Progressive to subtract Parent ’ s deductible from Florida Hospital ’ s total charge s before applying section 627.736 (5)(a)1.b. ’ s reimbursement limitation

. Progressive appealed , and the ci rcuit c ourt affirm ed the c ounty

c ourt ’ s judgment

. This certiorari proceeding followed

. Before continuing further , it is necessary to note the limitations of our review. S econd

- tier certiorari review is limited to determini ng 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 c ircuit c ourt applied the correct law when interpreting sections 627.736(5)(a) 1.b. and 627.739(2) to determ i ne whether the c ounty c ourt utilized the correct methodology to apply the deductible. C ertiorari r elief can be granted only if Progressive demonstrates that t here 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 derive s from a variety of legal sources, including the interpretation of s tatute s

. Allstate Ins. v. Kak lamanos , 843 So. 2d 885, 890 (Fla. 2003)

. **Statutory Analysis**
In order to determine whether the c ircuit c ourt applied the correct law , we must analyze th e statutory provisions at issue , which are an integral part of the Florida Motor
Vehicle No

- Fault Law. 2 Florida’s N o - F ault L aw has historically been a complicated body

2 Section 627.730, Florida Statutes (2014) , provides tha t “ [s]ections 627.730

- 627.7405 may be cited and known as the ‘ Florida Motor Vehicl e No

- Fault Law. ’”5 of legislation, and the constant revisions and amendments since its inception 3 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 N o - F a ult L aw, 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 ap plied 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. , 14 1 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 dedu ctible has been applied to the total expenses and losses and after application of the statutory reimbursement limitati ons 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 capa city ” 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, secti on 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 los s es as required by
section 6 27.739(2). Section 627.736(5)(a)1 . provides the insurer wit h 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 f ollowing 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).
W e believe that a pplication of the optional reimbursement limit ations 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 losse s

. ” 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 627.73 9**  **( 2** 

**)**
T he 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 applie d 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 tha t 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 statu tory 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 percen t of lost wages

. . . . ” ). Ther efore, 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 C ourt 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 inte rpretation 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 motio n 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 pursu ant to the statutory reimbursement limitations. Specifically, t he 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 medica l 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 los s es ” for purposes of applying the deductible and “ benefits ” that are due to the insured after the reimbursement limitations are applied. The legislative amen dment in 200 3 constitute d a substantive change in the
sequence of applying the deductible in PIP cases. The L egislature, 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 200 3 , Progressive and the dissent argue that the methodology advanced in the previou s version of section 627.739 (as interpreted by the Florida Supreme Court in Govani and Ar n one ) 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 t he statute as it did in 200 3 if, as Progressive and the dissent essentially argue, the re 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 co nfirms 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 n ot 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 neverthel ess confirms our reading of the statute ” ) ; Diamond Aircraft Indus

. , Inc. v. Hor owitch , 107 So. 3d 362, 368 (Fla. 2013) ( “ The legislative summary in a staff analysis regarding FDUTPA affords further suppor t 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. Fl a

. Dep ’ t of Law Enf

. , 97 So. 3d 268, 273 (Fla. 1st DCA 2012) ( “ Our decision does not rely on staff an alys es

. . . . T he s taff analyses support the position advocated here by G.G. , not FDLE. ” )

.11 in the methodology

. As we have previously indicated , t he 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. 200 2 ); 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 appl y 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 strick en 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 no t 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 y ears after the original enactment to clarify original legislative intent

. ” ); State Farm Mut

. Auto

. Ins

. v. Laforet , 658 So. 2d 55, 62 (Fla. 1995) ( “ I t 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 11 7

. Moreover, t he title to the bill incorporating the failed amendment
states: An act relating to auto mobile 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 103 6 (2016). The title of a proposed law may reveal whether the Legislature
inten d ed 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 i s 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 Bil l”**  **Argumen t Advanced by Pr**  **ogressive 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 i s 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 no t an issue raised by any party

. In any event,

we reject this argument for several reasons. First, it overlooks the d istinctions between a deducti ble 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 court14 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 t hat relieves the insurer of responsibility for an initial specified loss of the kind insured against. ” Merriam

Webster ’ 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 ot herwise 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 Legislat ure has provided that a n “ insured is
not required to pay a claim or charges . . . [ t ] o any person who knowingly submits a false15 or misleading statement relating to the c l aim or charges. ” § 627.736(5)(b)1., Fla. Stat. (2014)

. Moreover, m edical care provid ers are prohibited from rendering any bill for
services that is false or fraudulent , and those that do may suffer sever e criminal and civil penalties

. See § 817.234 (1)(a) , Fla. Stat

. (2014). S ection 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 L aw must be construed in favor of the insured

. Interpreting the pertinent statutory provisions in a manner that supports t he 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. Th e 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 th is decision is flawed because not one of the provisions of section 627.736 cited by the court in Ga rrison contains the language “covered by the policy.” In16 any event, there are an equal number of circuit court opinions that reach the opposite

resu lt, 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 627.73 9 (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 ap ply ; we must apply the law as it currently exists. Section
627.73 9 (2) currently require s 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 diver gence 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 p etition f or w rit of c ertiorari.
DENIED. EDWARDS, J., concur s

. PALMER, J., dissents , with opinion

.17 PALMER , J. , diss enting. 5D16

- 2333 I respectfully dis sent

. 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 cont ains 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, s ection 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 t he current

se ction 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 reasonabl e and necessary. See Geico Gen. Ins

. Co. v. Virtu al Imaging S erv. 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. Fl a . Vill. Inn, Inc. , 874 So. 2d 26, 33 (Fla. 2nd DCA 2004).18 The majority relies on the fac t 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 Im pact 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 fo r 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

.