The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.
Allstate Insurance Co. v. Holy Cross Hospital, Inc.
SC05-435 | SC05-545
>>> THE FINAL CASE ON THE
CALENDAR THIS MORNING IS
ALLSTATE INSURANCE VERSUS
HOLY CROSS.
JUST IS CANTERO IN THE CASE.
>> I WILL STAY HERE.
>> I AM FEELING LIKE
SOMETHING IS GOING ON HERE.
>> FIRST, MY MIC DOESN'T
WORK.
THEN IT IS WORKING.
>>>GAIN, FOR THIS CASE,
JUSTICE WELLS WILL
PARTICIPATE IN THE DECISION.
HE WILL WATCH THE TAPE THAT
IS PREPARED.
>> THANK YOU, YOUR HONORS.
MAY IT PLEASE THE COURT MY
NAME IS RICK GODFREY, I
REPRESENT ALLSTATE.
AS THE COURT KNOW, THIS
APPEAL IS HERE OUT OF
DECISIONAL CONFLICT ON A
FAIRLY NARROW STATUTE.
>> BEFORE 1991.
>> YES.
>> COULD ALLSTATE DO WHAT IT
IS TEMPTING TO DO HERE?
>> IT BELIEVES THAT KITE.
IT BELIEVES THAT THE 1992
AMENDMENTS TO SUBSECTION 10
SIMPLY DID TWO THINGS:
NUMBER ONE, WHETHER WAS A
DISPUTE ABOUT WHETHER
INSURANCE COMPANY COULD PAY
MORE THAN THE 8% WHETHER
THEY COULD HAVE EXPANDED
BENEFITS AN INCOME PETIVE
ENVIRONMENT TO SEE WHY SOME
INSURANCE COMPANIES MAY SAY,
WE LIKE TO COMPETE AGAINST
PROGRESSIVE OR NATIONWIDE.
THEN, THE SECOND POINT WAS
THAT THERE WAS A DISPUTE AND
HISTORY, WELL, IT IS
SOMEWHAT SPARSE, SEEMS TO
SUGGEST ABOUT WHETHER OR NOT
INSURANCE COMPANY ITSELF
ISSUE PPO POLICY AND
CONTRACT DIRECTLY WITH THE
PROVIDER, SO AT THE TIME OF
THE SEAL, COMPARED TO AT THE
TIME OF SERVICE, WHEN WE
LOOK AT THE DECISIONAL
CONFLICT, WE HAVE BEEN
INVOLVED IN ALL THREE CASES,
SO THIS IS ROUND FOUR FOR US
WHICH IS SOMEWHAT UNUSUAL IN
MY EXPERIENCE.
>> AS WE GO INTO THIS, AS A
BACKGROUND, I HAVE A GROUP
AND IT IS THE SUN WORSHIPERS
OF SOUTH FLORIDA, I GO TO
HOLY CROSS HOSPITAL.
IT COULD BE RELIGIOUS
ORGANIZATION, I GO TO HOLY
CROSS, THEY AGREE TO GIVE ME
SERVICES AT LESS THAN MARKET
VALUE.
THEY WILL GIVE IT TO ME FOR
20%.
ANY STATUTE, FEDERAL OR
STATE, OR REGULATION, THAT
WOULD PROHIBIT THAT AND THEN
ALLSTATE DOING THAT FOR US?
>> NO, NOT AT ALL.
>> OKAY.
>> HAVE WE CROSSED, HAVE WE
OR ANY COURT CROSSED THE
QUESTION OF UNDER THAT
CIRCUMSTANCE THAT I AM THEN
INJURED, THE HOSPITAL
CHARGES ME ONLY 20% OF WHAT
IT WOULD NORMALLY CHARGE
SOMEONE ELSE, AS TO WHETHER
THE HEALTH CARE PROVIDER CAN
CHARGE ANY INSURANCE COMPANY
100%?
WITH WE CROSSED THAT
ANYWHERE IN THE CASE LAW?
>> NOT OUTSIDE OF THESE
THREE CASES.
>> OKAY, THAT IS WHAT I AM
SAYING.
>> NOT THAT I AM AWARE OF.
WILE GIVE ANOTHER HYPO, THEN
WE CAN GET DIRECTLY INTO THE
STATUTORY CONSTRUCTION
QUESTION.
BUT WE ARE LIMITED HERE
BECAUSE -- FOR ME, IN TRYING
TO UNDERSTAND CONTEXT, WE
HAVE CONTRACTS THAT ALLSTATE
ENTERED WITH BEECH STREET OR
WHAT BEECH STREET ENTERED
WITH HOLY CROSS.
>> WE DO HAVE THAT.
>> I THOUGHT THEY WERE NOT
IN THE RECORD.
NO.
>> THERE IS SOME VAGUENESS
IN THE BRIEFS.
I WAS READING IT LAST NIGHT.
I REAL UZED ONE OF YOU MIGHT
ANSWER THAT QUESTION.
I WILL TELL WHERE YOU YOU
CAN FIND IT.
>> WHERE ON THE RECORD?
>> THERE ARE TWO DIFFERENT
SPOTS.
WELL, IF YOU LOOK AT PAGE
127 OF THE RECORD AND GO TO
PAGE 142 MUCH THE RECORD IS
THE FIRST TIME, THEN THE
SECOND TIME IS 152 TO 163,
IT IS AGAIN, BECAUSE THESE
ARE TWO CONSOLIDATED CASE,
WHAT WE HAVE ON THE RECORD,
UM, IS THE AFFIDAVIT OF
CHRISTY WHO IS FROM BEECH
STREET, SHE CATCHES THE
BEECH STREET CONTRACT.
IT LAYS OUT WHAT IT
PROVIDES.
WE THEN HAVE AND YOU ARE
QUITE CORRECT ON THIS POINT.
WHAT WE DO NOT HAVE ON THE
RECORD BECAUSE IT WAS RAISED
ONLY AT THE TIME OF THE
JUDGMENT ARGUMENT, THERE WAS
AN AFFIDAVIT THAT WAS PUT IN
BY SOMEONE FROM ALLSTATE
TALKING ABOUT THE CONTRACT
THAT ALLSTATE WOULD HAVE AT
BEECH STREET LAYING OUT THAT
AND THE PURPOSE THERE WAS TO
LAYOUT THE NOTIFICATION TO
THE INSURERED THAT THE IN
SHIREER WAS GIVEN NOTICE OF
THE OPPORTUNITY FOR THIS PTO
BENEFITS BEFORE HE ACTED ON
IT.
ONLY AT THE TIME OF THE ORAL
ARGUMENT AND NEATHER WERE
INVOLVED IN THE RECORD OF
THE TRIAL COURT.
WELL, YOU ARE MISSING THAT
CONRACT.
THE COURT DESIDES FOR BETTER
FOR WORSE, LOOK, IF IT IS
VIOLATION OF SUBSECTION 10
BASED ON WHAT YOU SAID THE
AFFIDAVIT, THE CONTRACT
DOESN'T MATTER.
>> RIGHT.
>> WHAT WE DON'T HAVE IS THE
CONTRACT THAT ALLSTATE
ENTERED INTO OF MARCH OF
2000 WITH BEECH STREET AN
AGP.
>> WELL, MY QUESTION WOULD
BE.
I ARM, STATE OF FLORIDA,
BLUE CROSS-BLUE SHIELD IS
OUR MANAGEMENT OF OUR PPO
PLAN, SO GOY TO HOLY CROSS
NOT BECAUSE ALLSTATE SENDS
ME, BUT BECAUSE IT IS PART
OF MY PROVIDER AND I AM, YOU
KNOW, I HAVE A CERTAIN
CHARGE.
A YES.
>> ON THE OTHER HAND, I AM A
PERSON THAT HAS -- LET'S
TAKE HOLY CROSS.
I AM A BEECH STREET
PROVIDER.
I GO TO HOLY CROSS BASE AM
PART OF THE BEECH STREET
PPO.
THE SECOND SCENARIO, I GO
THERE BECAUSE IT IS AN
EMERGENCY ROOM
I JUST GO THERE.
IS ALLSTATE'S POSITION THAT
WHAT IT HAS TO REIMBURSE
HOLY CROSS OR ME AS THE
INSURED IS THE SAME WHETHER
I AM PART OF THE BEECH
STREET NETWORK AS AN
INSURERED OR NOT.
WITHOUT ANY OTHER CONTRACT
EXISTING IN DO YOU
UNDERSTAND MY QUESTION?
>> I THINK SO.
I WILL ANSWER THINK IT WAY.
THE REIMBURSEMENT TO HOLY
CROSS IS THE RATE THAT HOLY
CROSS AGREED TO CHARGE IN
THE BEECH STREET
ARRANGEMENT.
> BUT ONLY AS TWO PEOPLE IN
THE BEECH STREET NETWORK?
A YES, THAT IS ALLSTATE
PERSON.
YOU SEE, THAT IS WHERE, I
GUESS, THIS IS WHAT I AM
CONCERNED ABOUT:
THERE IS FREEDOM OF CONTRACT
ISSUES THAT CERTAINLY GET
INTO IT, BUT THE FIRST
SENTENCE OF SUBSECTION 10
SAYS AN INSURER MAY
NEGOTIATE AND ENTER INTO
CONTRACTS WITH LICENSE
HEALTH CARE PROVIDERS, NOW
YOU HAVE TAKEN THE POSITION
THAT THAT MEANS BOTH DIRECT
AN INDIRECT.
>> YES.
>> MR. VAKA MAKES THE POINT
IN HIS BRIEF THAT THE
LEGISLATURE KNOWS HOW TO
ACCOMPLISH THE PURPOSE OF
INDIRECT AS IT HAS IN OTHER
STATUTES.
WHY, IF THE INTENT WAS TO
ALLOW THIS TO BE DONE WOULD
THE LEGISLATURE TALK ABOUT
NEGOTIATING AND ENTERING
INTO CONTRACTS WITH LICENSED
HEALTH CARE PROVIDERS BUT
SAY, NOW WHAT WE REALLY
MEANT WAS TO ALLOW
NEGOTIATIONS IN ENTERING
INTO CONCONTRACTS WITH THE
PROVIDER ITSELF, WHATEVER --
>> WELL, THAT IS ISSUE TO
YOU EXCLUDE.
LET'S START WITH THIS
QUESTION.
I WAS GOING TO PHRASE THE
QUESTION -- WHAT TERM OF THE
STATUTE DID ALLSTATE'S
CONDUCT VIOLATE?
YOU ARE ASSUMING BY THE
QUESTION.
THE QUESTION FOR MR. VAKA IS
UNLESS THERE IS EXPRESSED
AUTHORIZATION GIVEN BY THE
LEGISLATURE, IT IS BANNED.
>> THAT GOES BACK TO ISSUE
THIS THIS WOULD NOT BE A
SECTION 10, WE WOULDN'T BE
INVOLVED IN STATUTORY
CONSTRUCTION BECAUSE IT
COULD HAVE HAPPENED BEFORE
SUBSECTION 10 WAS IN
EXISTENCE.
I DIDN'T HEAR YOU MAKE THAT
DIRECT ARGUE.
>> THAT IS AN ARGUMENT WE
HAVE MADE.
>> THERE IS NOTHING TO
PREVENT ALLSTATE FROM
ENTERING INTO ARRANGEMENTS
THAT FAIRLY AND WITH NOTICE
BOTH TO THE INSURED AND TOP
THE HEALTH CARE PROVIDER.
>> AND ON THAT POINT, JUST
FOR THE RECORD, -- ON PAGE
130 IN THE RECORD, THERE IS
A LETTER FROM BEECH STREET
IN EARLY 2000 TO HOLY CROSS
SAYING GOOD NEWS.
ALLSTATE WAS 1.6 MILLION
CUSTOMERS IS NOW PART OF
YOUR PROVIDER NETWORK.
NOW HAVE ACCESSES TO MORE
PEOPLE WHICH IS WHAT WERE
YOU INTERESTED IN DOING.
>> BUT THAT IS NOW HOW THIS
GOES BACK.
THEY DIDN'T COME, THEY
WEREN'T THEN, THIS ALLSTATE
INSURED DIDN'T MAKE DECISION
TO GO TO HOLY CROSS BECAUSE
THEY WERE PART OF THE BEECH
STREET NETWORK THEY WENT
THERE AFTER NETWORK?
>> NUMBER ONE, NUMBER TWO,
NOTHING IN THE FACTUAL
RECORD THAT TELLS US, WE
KNOW THEY WENT THERE.
WE KNOW THERE WAS PERIOD OF
A SHORT TIME BETWEEN THE
ACCIDENT BUT WE DON'T KNOW
WHETHER THEY CALLED THE TOLL-
FREE NUMBER OR ANYTHING
ELSE.
WE DO KNOW BEFORE THE COURT
THAT IN THE SURED WAS TOLD
IN INSURANCE POLICY RENEWAL
ABOUT THE BEECH STREET
NETWORK.
>> WHAT DIFFERENCE DOES THAT
MAKE AT ALL?
>> YOU ARE RIGHT.
IT DOESN'T MAKE A
DIFFERENCE.
>> IT IS A QUESTION OF
WHETHER HOSPITAL PROVIDER
CAN CHARGE WHAT RATE THEY
CAN CHARGE FOR WHATEVER,
ISN'T IT?
>> YES.
>> WHETHER THEY WENT THERE
BAUG THEY WANTED TO BECAUSE
THE AMBULANCE TOOK THEM
THERE, THE QUESTION IS, ARE
THEY CAPPED BECAUSE THEY
SIGNED AN AGREEMENT AND THE
QUESTION I GUESS IS NUMBER
ONE, CAN THEY CHARGE MORE?
NUMBER TWO, IF THEY DO NOT,
IS IT IN VIOLATION OF OUR
STATUTE?
>> YES.
ON THAT POINT, THERE IS
SOMETHING THAT IS KIND OF
BURIED ON THE RECORD HERE
AND PREPARING FOR THIS, WE
PROBABLY SHOULD HAVE MADE A
POINT OF THIS.
YOU KNOW, BEECH STREET WAS
NOT AN INNOCENT NAERT DID
NOT KNOW ABOUT THIS.
THEY HAD THE RIGHT TO CANCEL
THE CONTRACT ON 3 OR 90-DAYS
NOTICE THEY COULD HAVE
CANCELLED BY THE VERY TERMS
LONG BEFORE WIESNER EVER
SHOWED UP BUT THEY TOOK THE
BENEFIT OF THE CONTRACT
WHICH WAS THE ACCESS TO THE
1.6 MILLION INSURED POOL,
THEY TOOK THE BENEFIT OF
THAT, THEY EXCHANGE FOR
WHICH, WE'LL ONLY CHARGE X
RATE, NOW, THEY STAND BEFORE
THE COURT SAYING, YOU KNOW
WHAT, WHEN WE PROMISED X
RATE, WE DIDN'T MEAN IT.
WE WANT X PLUS Y.
ONE OTHER PART OF RECORD
THAT IS IMPORTANT HERE.
>> BEFORE YOU MOVE TOO FAR
FROM THAT, YOU SAID
SOMETHING I THINK, THEY HAVE
ACCESS, THEY ENTERED INTO
THE CONTRACT, NOW, HOLY
CROSS HAS ACCESS TO THE 1.6
MILLION UNSURED.
HOW DO THEY HAVE ACCESS IF
YOU CAN, IF YOU ARE ALLSTATE
PT -- PIT PERSON, YOU CAN GO
ANY PLACE YOU WANT TO.
YOU DON'T HAVE TO GO TO HOLY
CROSS, SO HOW DO THEY HAVE
ACCESS?
>> BECAUSE IN THE INSURED
POLICY, THIS IS WHERE I
MENTIONED THE POLICY THAT
WAS SENT OUT BEFORE THESE
ACCIDENTS.
>> YOU MEAN INSURED POLICY?
>> THE POLICYHOLDER RECEIVED
INSURANCE RENEWAL, THEN THE
INSURANCEANCE RENEWAL ON
PAGE 415, THIS IS WIESNER'S
POLICY.
WIESNER IS TOLD WHEN HE GETS
RENEWAL, BY THE WAY, YOU
HAVE ACCESS TO THE PPO
NETWORKS HERE IS THE TOLL-FREE
NUMBER, YOU CAN GET BETTER
RATE, EXPAND YOUR COVERAGE,
BECAUSE, REMEMBER, ONE OF
THE INTERESTING THINGS ABOUT
THIS CASE IS ON THE RECORD
BEFORE THIS COURT, IT IS
UNDISPUTED.
THE 4 49th DISTRICT AN HOLY
CROSS FOUND THIS, ALLSTATE'S
PROGRAM EXPANDS THE COVERAGE
FOR INSURED.
THE INSURED PAY LESS
OUT-OF-POCKET, SO THE
PROVIDER HERE IN THE UNIQUE
POSITION OF ARGUING THE
INSURE EAR SHOULD HAVE LESS
COVERAGE AND PAY MORE.
NOT TOO OFTEN, WE ARE
SAYING, LOOK, GET FULL
COVERAGE FOR LESS COST?
>> THAT IS SORT OF BEEN
CAUTION ME TO SCRATCH MY
HEAD BASE AM READING THE
BRIEF OF FLORIDA CONSUMER
ACTION NETWORK THEY ARE
AGAINST THIS.
I THINK WHAT YOU ARE SAYING,
IT DOES SOUND LOGICAL.
>> UNDISPUTED ON THE RECORD.
IT IS UNDISPUTED ON THIS
RECORD.
IF THE COURT WERE TO RULE
AGAINST US, THEN MR. WIESNER
ARE LIABLE FOR ANOTHER 20%.
>> SO IT IS REALLY CLEAR,
NOW, THAT IF HOLY CROSS IS
CHARGING ALLSTATE $50 FOR
SOMETHING THAT THEY WOULD
NORMALLY CHARGE $80 FOR.
>> YES.
>> WE PAY $4.
>> THE SHARE WOULD ONLY BE
2% OF THE $50.
>> THAT IS CORRECT.
> THAT IS TOTALLY FAIR INTO
AND THEY AGREED NOT TO
BALANCE BILLS SO THEY CANNOT
GO AFTER THEM, IF THE
CONTRACT DOESN'T APPLY, WE
GOT TO PAY MORE, CERTAINLY
GOING FORWARD THE INSURERS
PAY MORE.
THE RECORD DOESN'T SHOW US
WHETHER THEY WOULD GO AFTER
WIESNER FOR $20.
THAT DOESN'T TELL US THAT.
THE POINT IS, AND
PERSPECTIVE BASIS GOING
FORWARD, THAT IS PRECISELY
WHAT WILL HAPPEN.
THEY PAY MORE.
THERE IS NO DOUBT ABOUT
THAT.
THAT IS UNDISPUTED NOW MOST
OF THE GRIEF FOR THE
CONSUMER'S GROUP IS, I LIKE
THIS BASE, BECAUSE THEY
RAISE POLICY YOU SHALL SURE,
BUT MAKING ALL KINDS OF
ARGUMENTS, NOT A SINGLE
SHRED OFPORT HERE THAT WOULD
SUPPORT THE ALLEGATIONS THAT
THEY ARE MAKING.
THERE IS ONE MORE POINT THAT
I WAS STARTING TO MAKE
BEFORE I ANSWERED YOUR
QUESTION.
THIS IS NOT A ZERO SUM GAME.
THE INSUREERED HERE, I DON'T
EVEN KNOW IF THEY KNOW, THEY
ARE DOING THIS ON ASSIGNMENT
WHERE THE INSURER, THEY ARE
NOT AT STAKE.
>> THAT IS ACCEPTED UNTHE
LAW.
I KNOW.
BUT IT IS IMPORTANT HERE
BECAUSE IT IS NOT TYPICAL
THAT THE PARTY BEFORE THE
COURT THAT DOESN'T REALLY
KNOW THE PARTY BEFORE THE
COURT ALTERNATE BY VIRTUE OF
THIS ASSIGNMENT CAN BE IN
YOU INJURED BY THE DECISION
IF THE COURT AGREES WITH THE
POSITION THEY ARE ARGUING.
IF THE INSURED WIN THE CASE,
HOLY CROSS WINS THE CASE IN
THE NAME OF THE UNSURED
NOTHING PREVENTS HOLY CROSS
WERE SAYING, GUESS WHAT?
YOU OWE US THE DIFFERENCE
BETWEEN WHAT YOU PAID US --
THEY COULD GO BACK.
THIS IS WHAT IT IS.
IT DOESN'T SEEM TO ME THAT
IS A REASON FOR US --
>> IT IS JUST A POINT.
WHO IS BEING INJURED HERE.
THE UNSURED BEING INJURED
HERE WHICH IS THE POINT I
WAS GETTING TO.
ONE MORE POINT TO ANSWER
YOUR QUESTION.
THIS IS INTERESTING PART OF
THE CASE.
IS NOT IN THE -- IT IS IN
THE THE BRIEF BUT NOT
DEVELOPED VERY MUCH.
BEECH STREET SAYS WE KNEW WE
WERE DOING FO THIS FOR
WORKERS' COMP..
WE HAVE A PROBLEM FOR PIP.
WHY DO YOU DISCRIMINATE
AGAINST PIP INSUREANCE?
>> THAT IS WHERE IT WOULD GO
BACK.
IF WE SAID THAT INSUREER CAN
DO THIS INDIRECTLY, THEN IT
GOES BACK TO THE TRIAL COURT
TO DETERMINE THE INTENT OF
THE PARTY.
WOULD YOU AGREE THAT?
WHETHER BEECH STREET SAY,
NO,, NO WHEN I GOT ALL STATE
IN, WE GOT THEM IN.
>> SURE.
THE YOU 49th DISTRICT COURT
OF APPEALS SPECIFICALLY
RECEIVED THAT POINT.
>> TO ME, THAT IS A LOT OF
ISSUES ABOUT FAIRNESS BOTH
WAYS, ABOUT PEOPLE DOING
SOMETHING FOR WITH EYES OPEN
OR WHAT THEY ARE SAYING IS
THEY ARE TRYING TO SNEAK
AROUND AND DO SOMETHING
INDIRECTLY.
>> YES.
IN FAIRNESS, I THINK THE
RECORD IS UNDEVELOPED
BECAUSE THERE IS A RECORD
HERE BEFORE THE COURT, THEIR
EYES ARE WIDE OPEN.
THEY WERE TOLD, THEY HAVE A
RIGHT TO DETERMINE MATE.
THERE IS A LETTER TO THEM IN
MARCH OF 2000, GIVING YOU A
VIE CITATION.
>> THESE ARE MEASH MATTERS
OF CONTRACT ISSUES NOT PIP
COVERAGE.
IS THEIR ANY PROHIBITION FOR
EXAMPLE THAT WE HAVE
BUSINESS OWNER, WE GOT MED
PAY ON OUR POLICY, IF
SOMEONE IS INJUREDEN OUR
PROPERTY WE CALL THE A A
AMBULANCE.
>> I CAN'T SAY THAT IS IN
THE BRIEF.
EYE MEAN, WE ARE TALKING
ABOUT THOSE KINDS OF ISSUES.
YEAH.
I DON'T KNOW.
I HAVE NOT LOOKED THAT.
I WILL RESERVE THE REST OF
MY TIME.
I KNOW YOU ARE IN THIS.
IT GOES BACK DO THE VERY
FIRST QUESTION THAT JUSTICE
LEWIS ASKED.
IF I GO TO A HOSPITAL AND IT
IS BLUE CROSS HOSPITAL, I
GET A MUCH SMALLER AMOUNT
THAT I HAVE TO PAY, DOES,
DOES, BASE AM THERE FOR AN
AUTOMOBILE ACCIDENT DOES THE
HOSPITAL GET TO CHARGE THE
HIGHER AMOUNT?
>> THE HOSPITAL GETS TO
CHARGE WHAT IT AGREED TO
CHARGE.
I REPRESENT BLUE CROSS,
COINCIDENTALLY, THERE ARE
CRON TRACKS.
THERE ARE CONTRACTS.
THERE ARE RATE SCHEDULES.
THE HOSPITAL PROVIDER --
THAT IS WHAT ESTABLISHES A
REASON?
>> YES.
AND THAT WHAT IS THE COURT
HERE HELD WHICH AGREED TO A
RATE SCHEDULE.
BY DEFINITION, THAT IS
REASONABLE.
WHAT THEY ARE REALLY ARGUING
HERE.
IT IS REASONABLE FOR WORK
WITH'S COMP BUT NOT FOR PIP
PREFERRED AND THEY THINK
PREFERRED SHOULD HAVE LESS
COVERAGE AND MORE EXPENSE.
I WOULD LIKE TO RESERVE MY
TIME.
THANK YOU VERY MUCH.
>> MR. VAKA.
>> I CAN TELL YOU DIDN'T
AGREE THAT ARGUE.
>> THANK YOU.
LET'S GO BACK TO MY QUESTION
I POSED TO YOU'RE POSING
COUNSEL.
>> YES, SIR.
>> GOY HEAD AND ANNOUNCE.
>> GEORGE VAKA, TAMPA
FLORIDA.
>> YOU ARE GETTING INTO HIS.
>> ON BEHALF OF HOLY CROSS,
MY RIGHT IS LAURA WATSON ON
BEHALF OF THE AMICUS
HOSPITAL ASSOCIATION SHE WAS
ALSO THE TRIAL LAWYER IN
THIS CASE.
>> LET'S GO BACK TO THE
QUESTION.
WHETHER IT IS RELIGIOUS
GROUP OR WHATEVER, IF THE
HEALTH CARE PROVIDER, BE IT
THE DOCTOR OR THE HOSPITAL
AGREES WITH THE GROUP I AM
PART OF TO CHARGE ME $50 TO
FIX A BROKEN ARM.
I HAVE THE BROKEN ARM.
I GO TO THAT FACILITY, BUT
SOMEHOW, SOMEWHERE ELSE, A
PIP CARRIERS GOING TO BE
RESPONSIBLE FOR IT.
IS THEIR ANY STATUTE OR
REGULATION OR CASE TO THIS
POINT THAT SAYS THAT THE
HEALTH CARE PROVIDER CAN
CHARGE ME MORE FOR THAT
SERVICE.
>> THERE IS NO CASE?
>> OKAY.
THIS IS TRULY JUST A
QUESTION OF WHETHER THIS
PARTICULAR STATUTE PROHIBITS
IT.
BECAUSE IN ALL OTHER
CIRCUMSTANCE, THAT CAN BE
DONE.
I DON'T KNOW IT IS NECESSARY
A STATUTE, IT IS A QUESTION
OF WHERE THE STATUTE
PROHIBITS IT.
I THINK IT IS WHETHER THE
STATUTE AUTHORIZES IT
BECAUSE THE FIRST PART OF
THE STATUTE SPECIFICALLY
SAYS WHAT YOU HAVE TO DO.
WELL, LET'S TAKE THE BLUE
CROSS-BLUE SHIELD EXAMPLE.
A LOT OF FOLKS HAVE THEM.
WE WOULD LIKE ALL FOLKS TO
HAVE ACCESS, BUT JUSTICE
PARIENTE HAS BLUE CROSS &
BLUE SHIELD AND SHE HAS AN
ACCIDENT, JUST BY
HAPPENSTANCE, DOES THE IN
SHOWERERANCE CARRIER HAVE TO
PAY YOU MORE THAN WHAT YOU
CAN CHARGE HER?
>> I THINK THAT ALLSTATE,
ALLSTATE'S ARGUMENT WOULD BE
THAT BECAUSE I HAVE A
SEPARATE CONTRACT WITH BLUE
CROSS-BLUE SHIELD THAT I
CANNOT CHARGE ALLSTATE
INSURERS ANYMORE THAN WHAT I
HAVE AGREED TO PROVIDE THAT
SERVICE WITH TO BLUE
CROSS-BLUE SHIELD BECAUSE
ACCORDING TO ALLSTATE MY
AGREEMENT, MY CONTRACTUAL
AGREEMENT WITH BLUE
CROSS-BLUE SHIELD IS THE
REASONABLE RATE.
>> OKAY.
>> THAT IS THEIR ARGUMENT.
>> BUT THERE WOULD BE, SO IF
THE ORIGINAL INSURERS IN
THIS CASE WERE PART OF THE
BEECH STREET NETWORK, THAT
WOULD BE IN YOUR VIEW, WOULD
THAT BE A DIFFERENT
SITUATION THAN IF THEY WERE
NOT?
>> THAT WOULD BE A DIFFERENT
SITUATION, BUT THE RESULT IN
MY OPINION WOULD BE -- WELL
I GO THERE.
>> THE SITUATIONS COULD BE
DIFFERENT.
IN OTHER WORD, I AM THE
INSURED, I GO THERING THERE
BASE KNOW IN THE AMOUNT THAT
INSURANCE COMPANIES -- I AM
SORRY.
THE HOSPITALS CHARGE TO
UNINSURED OR SOMEONE THAT IS
NOT THERE, WE ARE ONLY
TALKING ABOUT A $10,000
DIFFERENCE.
>> CORRECT.
>> SO GOY THERE, BECAUSE
THEY ARE PPO, I WANT TO GO
THERE.
I WANT TO SAVE MY BENEFITS.
IF YOU ARE SAYING GOY TO A
PLACE THAT OTHERWISE WOULD
BE WITHIN MY NETWORK, THAT
THAT HEALTH CARE PROVIDER
CAN STILL CHARGE ME AS IF I
WERE NOT PART, AS IF I,
WHATEVER THEY WOULD CHARGE
THE GOING RATE, WHICH MAYBE
ANOTHER $10,000.
>> IF YOU ARE THE INTENDED
IDENTIFIED THIRD PARTY
BENEFICIARY OF THE CONTRACT
THAT THE HEALTH CARE
PROVIDER HAS WITH SOME THIRD
PARTY, YOU MOST CLEARLY
JUSTICE PARIENTE WILL GET
THE BENEFIT OF THAT CONRACT.
>> IR RESPECT TO THE PIP.
>> IT DOESN'T MAKE A
DIFFERENCE.
>> NOW, WE GET BACK TO THIS
SITUATION WHICH IS ISN'T
THIS REALLY AN ISSUE OF
CONTRACT INTERPRETATION?
IN OTHER WORDS, IF BEECH
STREET CONTRACTS WITH
ALLSTATE AND PACIFICALLY
WITHIN THE CONTEMPLATION WAS
THAT ALLSTATE'S INSURERS
WERE IN AUTOMOBILE ACCIDENTS
ARE GOING TO GET THE BENEFIT
OF THE PPO RATE WITH THE
PROVIDERS HOW DOES THAT,
HOLY CROSS, YOU KNOW, HOLY
CROSS COULD ARGUE, NO, NO,
WE NEVER, WHEN WE CONTRACTED
WITH BEECH STREET, WE DIDN'T
AGREE TO THAT.
THEN THAT WOULD BE A REALLY
GOOD CONTRACTUAL ARGUE AM.
I DON'T THINK ALLSTATE COULD
FORCE IT ON IT.
DOWN THE ROAD, YOU LOOK AT
THE CONTRACT DOCUMENTS AND
HOLY CROSS WITH THEIR EYES
WIDE OPEN SAID, HEY, WANT AS
MANY PEOPLE COMING IN, THAT
IS FINE WITH US, WHY
WOULDN'T THAT BE SOMETHING
EVEN OUTSIDE OF SUBSECTION
10 THAT IS PERMISSIBLE?
CONTRACT, FREEDOM OF
CONTRACT?
>> WELL, IT IS A CONTRACT
KAERNING MATTER THAT IS A
HOLY STATUTORY CREATURE AND
SO WE HAVE TO FIRST LOOK TO
THE STATUTE AT LEAST AS WE
SEE IT AND THE WAY THE FIFTH
DISTRICT SAW IT.
THE STATUTE ITSELF IS SELF-COIN
TAD, PIP BENEFITS ARE SELF-
CONTAINED PART OF HE OF THE
FLORIDA INSURANCE CODE.
THERE IS TWO KINDS OF
POLICIES YOU CAN ISSUE.
YOU CAN ISSUE ONE PER YOU
ANT TO SUBSECTION 10 WHICH
IS ALLSTATE AN NATIONWIDE
YOU ON THE OTHER CASE FREELY
ADMITTED THAT IS NOT WHAT
THEY DID.
AND IF YOU, THEN, THE NEXT
QUESTION IS, WHAT HAPPENED
IF YOU DIDN'T ISSUE ONE
PURSUANT TO THAT STATUTE.
ONLY THAT THEY WILL GET 100%
PAYMENT AND DEPENDING ON THE
POLICY AND THEY MAY GET MORE
BENEFIT SO THEY MAY HAVE MA
MADE THE CHOICE THEY MAY GET
MORE THAN THE 10,000.
>> CORRECT.
>> NOW ON THE OTHER, YOUR
ARGUMENT THAT THIS COULD,
THIS IS SORT OF A BACKDOOR
PPO, LET'S GO BACK TO 1991,
ALL RIGHT, THE STATUTE AT
THAT TIME DIDN'T ALLOW THE
PPO CONTRACTS TO EXIST.
>> CORRECT.
>> WITH THE PIP CARRIERS.
WHAT DID THAT CONTRACT ALLOW
CARRIERS TO DO?
>> THE STATUTE, THE 91
STATUTE.
>> CORRECT.
>> IT ALLOWED INSURANCE
COMPANIES TO OFFER TWO KINDS
OF POLICIES, WHAT I REFER TO
AS SUBSECTION 1 POLICY WHICH
IS 80% OF ALL REASONABLE AND
NECESSARILY INCURRED MEDICAL
EXPENSES WHICH THE INDUSTRY
REFERRED TO AS USUAL CUST MR
RY AN REASONABLE, OR IT
AUTHORIZED THE INSURANCE
COMPANIES TO CREATE THEIR
OWN PPO NETWORKS.
THAT WAS THAT THEY WERE TO
HAVE CONTRACTS DIRECT
CONTRACTS WITH THE HEALTH
CARE PROVIDERS AND THAT
SPECIFICALLY AUTHORIZED THE
VERY THING THAT ALLSTATE IS
DOING NOW WHICH IS TO OFFER
IT AT THE TIME OF SERVICE
NOT AT THE TIME OF PURP
CHASE.
IT STILL REQUIRED THEM TO
MAINTAIN ROSTERS OF ALL OF
THE PEOPLE WHO WERE PART OF
THE NETWORK.
>> SO IS THIS CHANGED THE
1992 AMENDMENT ONLY ALLOWED
THE PPO POLICY TO BE YOU A
OFFERRED AT THE TIME THAT
THE INITIAL CONTRACT WAS
ENTERED INTO?
>> NO, THAT IS WHAT THE 92
VERSION.
>> THAT IS 92?
>> YES.
>> 91 SAID, CUE OFFER THE
PPO SERVICES AT THE TIME THE
SERVICE WAS DELIVERED.
IT ALLOWED THE IN YOU
SUREANCE COMPANIES TO
DIRECTLY CONTRACT WITH THE
HEALTH CARE PROVIDERS FOR
THE PROVISION OF THESE
SERVICES ABOUT IT STILL
REQUIRED THAT THEY MAINTAIN
ROSTERS OF WHO THE PROVIDERS
WERE AND THE LIKE FOR THEIR
INSURE EARS.
IN '92, THE LEGISLATURE
COMES BACK AND SAYS, WE ARE
MOT GOING TO LET YOU DO A IT
THE TIME OF SERVICE.
YOU NEED GIVE CONSUMER THAT
INFORMATION UPFRONT AND LET
THEM MAKE INFORMED DECISION
DO THEY WANT TO BE A PART OF
THAT NET WORK OR NOT?
>> WHY WAS THAT?
WHY WAS THE CHANGE MADE, DO
WE KNOW?
>> THERE IS NOT A WHOLE LOT
IN THE HISTORY THAT WE HAVE
BEEN ABLE TO FIND THAT
SUGGESTS EXACTLY WHY.
I KNOW, THEY ARE ARGUED
SOME.
WE HAVE ARGUED SOME.
I CAN'T, I CAN'T REALLY GIVE
A GOOD EXPLANATION.
CAN I TELL THAT YOU IN 1997,
THIS VERY SITUATION, THE
STYLE, THE MODEL OF WHAT
ALLSTATE IS DOING, WHAT ALL
OF THE OTHER INSURERS
NATIONWIDE DID, PROGRESSIVE
DID WAS PROPOSED, IT CAME
OUT, I BELIEVE IT WAS
THROUGH A SENATE BILL, THIS
IS REFERENCE IN THE MOTION
FOR SUMMARY JUDGMENT IT IS
REFERENCED IN THE AMISS CUSS
CASE.
I DIDN'T SPEND A LOT OF TIME
ON IT BUT THIS VERY MODEL
WAS PROPOSED, IT NEVER MADE
IT OUT OF COMMITTEE.
SO IT WAS NOT LIKE THE
INDUSTRY DIDN'T KNOW WHAT IT
WAS DOING.
IT DIDN'T KNOW THAT IT
DIDN'T HAVE THE AUTHORITY TO
DO THIS.
THEY TRIED TO GET THE LAW
CHANGED IN '97 SO THEY COULD
DO WHAT THEY ARE DOING NOW.
>> I GUESS WHAT I AM HAVING
TROUBLE WITH, HOW YOU HAVE
SET UP A SCENARIO WHERE AN
INSURED, YOU KNOW, WE HEAR
AT MANAGED CASE, MANY OF US,
I THINK, ALL OF THESE
HORRORS THROUGH MANAGED
CASE, YOU NEED TO HAVE
PRIMARY DOCTOR, YOU NEED TO
GET REFERALS OUT, BUT THE
FACT HERE, AT LEAST, AS FAR
AS THEY HAVE BEEN DEVELOPED
ARE THAT IT WAS, WE DON'T
KNOW, WHETHER THE TWO
ORIGINAL INSURERS WENT TO
HOLY CROSS BECAUSE IT WAS
THE NEAREST EMERGENCY ROOM
AND THEY GOT, FOR THEM, THEY
GOT THE SAME SERVICE AS IF
THEY WERE ALLSTATE INSURERS
OR THEY GOT A PLAIN OLD
EMERGENCY ROOM SERVICES NOW
IT DOESN'T BECOME PART OF
THE MANAGED CARE NETWORK,
WHY ISN'T IT A BENEFIT TO
MOT TO HOLY CROSS BECAUSE
THEY WANT MORE MONEY BUT TO
THE ORIGINAL INSURED THAT
INSTEAD OF BEING PAID, YOU
KNOW, HAVING TO PAY THE 20%
OF THE HIGHER AMOUNT, THEY
ARE PAYING 20% OF THE LOWER
AMOUNT.
I REALIZE YOU HAVE AN
ASSIGNMENT, YOU CAN MAKE
THIS ARGUMENT.
I AM NOT SURE HOW THE
UNSURED BENEFITS.
I AM SORT OF BIG INTO THE
ALLSTATE ARGUE.
>> LETS ME ADDRESS TWO
THINGS.
ONE, I BELIEVE IT WAS
ASSERTED THAT THE EVIDENCE
WAS IN THIS RECORD THAT THE
INSURED SAVE MONEY.
I DON'T BELIEVE THAT IS THE
EVIDENCE IN THIS RECORD.
IN FACT, YOU DON'T BELIEVE
THERE IS ANY EVIDENCE OF
THAT IN THE RECORD.
THE ONLY EVIDENCE IN THIS
RECORD IS THAT ALLSTATE
AGREED AS PART OF THE
JUDGMENT THAT THE AMOUNT IT
WOULD PAY WOULD BE THE
DIFFERENCE BETWEEN WHAT WAS
UCR, THE NORMAL CUSTOMARY
SUBSECTION ONE I WILL CALL
IT AND THE REDUCED AMOUNT OF
THE PPO CHARGE.
THAT WHAT IS THE JUDGMENTS
ARE FOR, SO IF THE NORMAL
CHARGE WAS 800 AND THE PPO
CHARGE WAS 500, THEY PAID
THE DIFFERENCE OF 300 IT
WASN'T THAT THEY PAID THE
REDUCED AMOUNT MINUS THE
DEDUCT.
THERE WERE NO SAVINGS FOR
THESE.
NOW LET'S GO TO THE BROADER
QUESTION THAT YOU WANT TO
ADDRESS JUSTICE PARIENTE, WE
HAVE TACK IN THE POSITION
THAT THOSE MATTERS OF POLICY
ARE BEST LEFT TO THE
LEGISLATURE.
>> I WANT TO MAKE SURE YOU
ARE SAYING THEY ENDED UP
PAYING 20% OF THE HIGHER
AMOUNT?
>> I AM SAYING THERE IS NO
EVIDENCE THAT THEY DID.
>> THEY DID PAY 20% OF THE
HIGHER AMOUNT, THEN
EVERYTHING SAUL STATE SAID
IS DOWN THE DRAIN.
THAT WOULD BE, EVERYTHING
THAT HAS BEEN REPRESENTED
TODAY IS,, NO THEY WOULD PAY
20% OF THE PPO RATE.
>> THE JUDGMENTS IN THE CASE
ARE FOR DIFFERENCE BETWEEN
THE UCR CHARGE AND THE PPO
CHARGE.
>> WHATEVER RATE PIP WOULD
APPLY?
>> CORRECT.
>> OKAY.
>> THE DIFFERENCE IS WHETHER
THESE ARE GREAT VIRTUES
WHETHER THERE TRULY IS A
SAVING, WHETHER ANY OF THESE
THINGS, WE HAVE ARGUED IS
BEST LEFT TO THE
LEGISLATURE, THE LEGISLATURE
WHO HAS DECIDED THIS IN 91
TO AUTHORIZE IT.
THEY TAKE A POSITION, THEY
COULD HAVE DONE THIS BEFORE
91, WE TAKE THE POSITION,
NO, CUE NOT.
THERE WAS ONE.
THIS IS WHERE THEY ANALYZED
THIS SITUATION IN THE
CENTRAL FLORIDA CASE.
>> THE THING I KEEP COMING
BACK TO, YOU SAY IN THE LAW,
WE JUST FAIRLY RECENTLY, WE
HAVE RECK RECOGNIZED
DISCOUNTS THAT JURIES CAN
NOT AWARD, THE FAIR MARKET
VALUE OF SERVICES THAT HAVE
TO BE, THE DISCOUNTED AMOUNT
AND ACROSS THE LAW, WE TEND
TO ALLOW THOSE KINDS OF
THINGS TO COME IN.
THAT PEOPLE PAY WHAT IS
ACTUALLY LOST OR REIMBURSED
BY WHATEVER THE COST IS, NOT
SOME OTHER NUMBER AND I
REALLY RESPECTFULLY AND I
HAVE BEEN DOING THIS SINCE
THE '70s WHEN THIS JUMPED
IN, I HAVE NEVER, NEVER
REALLY SEEN AN IDEA IN CASE
LAWS ANYWHERE THAT INSURANCE
COMPANIES HAVE TO PAY MORE
THAN, MORE THAN THE COST OR
THE CHARGE THAT THE
INDIVIDUAL IS ALLOWED TO
MAKE.
>> AND I UNDERSTAND WHY YOU
ARE STRUG LIG STRUGGLING
WITH THAT.
BUT I THINK THE STRUGGLE IS,
WE ARE OPERATING UNDER THE
DISCOUNTED RATE.
THE RATE THAT THE HEALTH
CARE PROVIDER GIVES FOR
THINGS LIKE ADVERTISING,
GETTING THEIR NAME IN THE
BOOK, HAVING THE INCREASED
FLOW OF PEOPLE.
OKAY?
WHICH IS WITH A THAT BOOK
THAT YOUR HONOR SHOWED US.
IT HAS THE NAMES OF
PROVIDERS.
ALLSTATE DOESN'T PROSEUSS
THAT IN THIS CASE BECAUSE IT
DOESN'T EXIST.
OKAY?
SO THAT IS THE RATE THAT I
WOULD BE WILLING TO CHARGE
JUST LIKE WHEN I WAS DEFENSE
LAWYER REPRESENTING DEFENSE
COMPANIES WHETHER THAN
CHARGE WHAT THE MARKET WOULD
BASE, I GAVE THE CLIENTS
DISCOUNT.
I GAVE THEM FOR ONE GOOD
REASON, THEY SENT ME LOTS,
THEY WAS THE REASON.
WHAT WOULD OTHERWISE BE A
REASONABLE HOURLY RATE,
OKAY, LET'S SAY IT WAS $150,
I MIGHT HAVE ONLY BEEN
CHARGING $100, OKAY? THAT
DOESN'T MEAN THAT EVERY,
EVERY INSURANCE COMPANY
INSURED WHO WOULD OTHERWISE
WALK INTO MY OFFICE, WANTED
ME TO DO A WILL FOR THEM,
FOR INSTANCE, THAT DOESN'T
MEAN THAT THEY WOULD HAVE
GOT IN THE RATE I CHARGED
ALLSTATE INSURERS TO HANDLE
THEIR WORK?
>> OKAY, THAT DOESN'T SET
THEN THE REASONABLE RATE IF
YOU ARE GOING TO CHARGE $10.
>> CORRECT.
>> BUT HERE, LET'S GO BACK,
ASSUME THAT ALLSTATE AND
HOLY CROSS HAD THE
AGREEMENT.
THAT IS A DIFFERENT CASE?
>> IT VERY WELL COULD BE.
>> COULD ALLSTATE CONTRACT
WITH HOLY CROSS OR WAS ANY
HEALTH CARE PROVIDER TO
PROVIDE ITS INSURERS
DISCOUNTED RATES?
>> THE STATUTE CERTAINLY
AUTHORIZED THEM TO DO THAT.
>> OKAY.
SO THE FIRST SENTENCE THAT
WE ARE LOOKING AT AS TO
WHETHER THAT IS A
PROHIBITION, WHETHER --
OKAY, NOT A PROHIBITION,
WHETHER THE FIRST SENTENCE
INCLUDES WHAT HAS BEEN
CALLED INDIRECT CONTRACT.
NOW THIS ISY SAY, I THINK IT
MATTERS WHAT THE CONTRACTS
SAY, BECAUSE, NO, NOBODY
WOULD MAKE YOU HAVE TO HAVE
AS YOUR REASONABLE RATE WHAT
YOU WERE GOING TO CHARGE
YOUR DEFENSE CLIENTS, BUT IF
HOLY CROSS THROUGH IT
CONTRACT WITH BEECH STREET
AND BEECH STREET THROUGH ITS
CONTRACT WITH ALLSTATE HAD
ALL AGREED THAT FOR ALLSTATE
INSURERS THAT THEY WOULD
CHARGE THAT REDUCED RATE,
WHERE IS THE DOWNSIDE OF ON
THAT ONE?
>> WELL, THERE MAY NOT BE.
THE FACT IN THIS CASE THAT
ALLSTATE NEVER UNDERSTOOD
THE TERM CONTRACT TO ME
INDIRECT CONTRACTS BECAUSE
THERE IS REQUEST FOR
ADMISSIONS IN WHICH THEY
ADMITTED THEY DIDN'T HAVE A
CONTRACT WITH MY KLEIN WHY
IT.
>> BE A SENT THE STATUTE,
LET'S SAY IT IS NOT PIP, IS
THE UNDERLYING CONTRACT A
VALID CONRACT?
>> IT CAN BE.
IT CAN BE.
IT DEPENDS ON THERE'S SOME
CITATIONS TO ILLEGAL AND
THOSE TYPE OF THINGS.
>> SO THE REAL QUESTION
COMES, DOES THE SUBSECTION
PROHIBIT WHAT OTHERWISE
COULD BE DONE IN THE CASE OF
INJURIES AS A RESULT OF
AUTOMOBILES?
>> NOW, I LOOK AT IT
DIFFERENTLY.
I THINK THE QUESTION IS,
DOES THE STATUTE AUTHORIZE
IT THE WAY IT IS IMPLEMENTED
HERE?
LET ME GIVE AN EXAMPLE.
I WILL TRY TO RESERVE THE
REST OF MY TIME.
I HAVE KIDS.
LOTS OF KIDS.
OKAY.
IF MY 15-YEAR-OLD DAUGHTER
ASKED ME IF SHE CAN GO TO
FRIEND'S HOUSE AN SPEND THE
NIGHT.
I SAY YES, YOU MAY.
RATHER THAN GO TO BRK'S
HOUSE, SHE SPENS THE NIGHT
AT HER BOYFRIEND'S HOUSE.
ALL RIGHT.
MY USE OF THE TERM MAY WAS
NOT YOU CAN GO TO YOUR
BOYFRIEND'S HOUSE.
SHE BETTER NOT COME ARGUING
TO ME THAT MY USE OF THE
TERM MAY WAS NOT PROHIBITIVE
OF HER GOING TO HER BOYEN
FROM'S HOUSE.
I DON'T THINK THAT IS A GOOD
ANNAL GY.
>> WELL I SEE IT THAT WAY.
THERE IS AN AUTHORIZATION IN
THE STATUTE TO DO SOMETHING.
ALLSTATE CLEARLY ADMITS IT
DID NOT DO IT.
AND SO THE QUESTION THEN
BECOMES:
IS THEIR ANOTHER ALTERNATIVE
WITHIN THE CONFINES OF THIS
STATUTE, JUST LIKE
SUBSECTION 2 SAYS, YOU MAY
INCLUDE THESE EXCLUSIONS.
IT DOESN'T SAY YOU MAY
INCLUDE OTHER EXCLUSIONS AND
IN THE INSTANCES WHERE THE
INSURANCE COMPANIES HAVE
TRIED TO EXCLUDE.
>> THAT IS NOT THE SAME
BECAUSE THE QUESTION IS:
IS IT THE UNDERLYING
AGREEMENT THAT THIS IS WHAT
I WANT TO PROVIDE THE
SERVICE FOR?
HAS IT CHANGED WHEN THE SAME
SERVICE IS INCURED BECAUSE
OF A MOTOR VEHICLE ACCIDENT?
THAT IS WHAT IT BOILS DOWN
TO.
IF YOU ASSUME TO FIX A
BROKEN ARM, A BROKEN ARM IS
A BROKEN ARM, WHETHER YOU
FALL FROM A TREE OR IN A CAR
WRECK, IF DOW THAT FOR X
DOLLARS BUT THEN THE
QUESTION IS DOES THE
UNDERLYING CONTRACT REQUIRE
YOU TREAT ME FOR THAT BROKEN
ARM WHETHER IT IS A TREE OR
AN AUTOMOBILE.
THAT IS UNDERLYING ONE.
THAT IS WHERE YOU LACK AT
THE CONTRACT.
BUT THEN THE NEXT STEP IS,
DOES THIS STATUTE SOMEHOW
ALTER THAT?
IT SEEMS TO ME THAT IS THE
ONLY ANALYSIS YOU CAN GO
SFLUING
>> WELL, THE STATUTE
MANDATES CERTAIN BENEFITS.
I THINK WE CAN AGREE ON
THAT.
>> THAT IS RIGHT.
>> OKAY.
>> INT DOESN'T TELL US WHAT
THE REASONABLE RATE IS
NECESSARILY.
IT MAY BE DIFFERENT THING
FORCE DIFFERENT THINGS.
>> I AGREE WITH THAT.
I DON'T DISAGREE WITH THAT.
THAT IS NOT WHAT THIS IS.
REASONABLE RATE QUESTIONS
ARE FACT ISSUES.
THAT IS NOT WHAT THIS CASE
IS.
>> WHILE YOU ARE ON THAT,
YOU KNOW, AND GETTING TO,
GIVE US YOUR PAY RAID OF
HORRIBLES, IN OTHER WORDS,
WHY DOES THE EVIL HERE THAT
YOU ARE SAYING IF WE
CONSTREW THE STATUTE IN A
SRN WAY IN TERMS OF WHAT IS
THE EVIL NOW THAT IS GOING
ON THAT YOU ARE SEEKING TO
PREVENT, OKAY, BY PREVAILING
HERE.
WHAT -- DO YOU GIVE US THE
PARADE?
>> FROM A A CONSUMER
STANDPOINT, ALL RIGHT, ONE,
THE CONSUMERS DON'T KNOW
THEY ARE INVOLVED IN A PPO.
NOT IN A TRADITIONAL WAY.
TWO, THIS COURT RECOGNIZED
THAT MANAGED CARE, THERE IS
DAMAGE OTHER THAN ECONOMIC
AND THAT DAMAGE IS TO THE
PATIENT POSITION-RELATIONSHIP.
>> THIS IS NOT -- REALLY,
NOT AN HMO QUESTION.
THIS IS, YOU HAVE AGREED TO
CHARGE A RATE.
I AM SORRY TO INTERRUPT.
THIS IS NOT HMO.
>> HOSPITAL EMERGENCY ROOM
IS NOT AN HMO.
>> THE REASON I AM SEEKING
THIS OUT IS BECAUSE THIS
REALLY IS COMING UNUSUALLY
STRESSED UP AS CHEVROLET AND
APPLE PIE AND WITH ALL OF
THESE DEBATES OUT THERE
ABOUT THE DELIVERY OF HEALTH
CARE IN THE COUNTRY AN 40
MILLION UNINSURED AND ALL OF
THIS, YOU KNOW, KIND OF
STUFF LIKE THIS, YOU KNOW,
YOUR OPPONENT REALLY IS
OBVIOUSLY PUT THE WHITE HAT
ON IN ARGUING, YOU KNOW, IT
HAS BEEN THERE WHILE HE HAS
BEEN ARGUING.
>> OKAY.
>> I AM TRYING TO SEE
WHETHER, YOU KNOW, TAKE THE
WHITE HAT OFF OF HIM HERE.
I AM HAVING A DIFFICULT TIME
--
>> LET ME DO IT WITHIN THE
CONTEXT OF THE ENTIRE PIP
SCHEME, ALL RIGHT.
IF WE ARE GOING TO HAVE
MANAGED CARE.
WE ARE GOING TO BE ABLE TO
GIVE THESE GREAT BENEFITS
ONE WOULD THINK THAT WOULD
BE SOMETHING HE WOULD PUT
THE WHITE HAT ON AND GET IN
FRONT OF THE TV CAMERA, GO
ADVERTISE IT THROUGHOUT THE
STATE.
THIS IS COMPLETELY DONE IN A
SHROUD OF SEC CIRCUMSTANCE
NOBODY KNOWS ABOUT IT UNTIL
THEY GET TO ACCIDENT.
ONE.
THAT KIND OF RAISES
QUESTIONS.
IF THIS IS SUCH A GOOD THING
AND THERE ARE ALL THESE
GREAT VIRTUES, WHY IS NOT
ALLSTATE THROUGHOUT TELLING
INSURERS THEY ARE GETTING
MORE BENEFITS?
I WILL TELL YOU WHY.
ALL THEY SAID, IF YOU HAVE
PIP.
IF YOU HAVE MED PAY, YOU CAN
CALL THIS NUMBER.
YOU MAY BE ABLE TO SAVE
MONEY.
THAT IS ALL THIS NOTICE
SAYS.
>> BUT AREN'T THEY SAYING,
IF YOU SHOW UP AT THE MAYO
CLINIC, OKAY, OR WHATEVER,
THAT IS WHERE YOU END UP
GETTING YOUR EMERGENCY CARE,
WE ARE GOING TO HAVE TO NAY,
TOO, EVEN THOUGH WE DON'T
HAVE ANY DIRECT OR INDIRECT
RELATIONSHIP THERE, THEY ARE
JUST SAYING THAT IF YOU
HAPPEN TO GO TO THE ONE THAT
WE ARE URGING TO YOU ON
BECAUSE, YOU KNOW, WE ARE
ALSO SUGGESTING TO THEM,
THAT THERE IS SOMETHING IN
IT FOR THEM, YOU KNOW, WITH
ALL OF THE POTENTIAL
CUSTOMERS.
>> ALLSTATE IS ONE TO PUT
THIS INTO A DEBATE ABOUT
VIRTUES AN NON-VIRTUE, THE
BENEFITS OF MANAGED CARE AND
MONEY.
I UNDERSTAND THAT IS THE WAY
THEY WANT TO PORLY THAT
ISSUE.
WE LOOKED AT IT DIFFERENTLY.
WE HAVE SAID, YOU KNOW WHAT?
ALL THIS IS GOOD TO
CONSUMER, I WOULD THINK
CONSUME WEIR LIKE TO KNOW,
THE PERSON ON THE END OF THE
800 NUMBER IS REFERRING THEM
TO ALLSTATE DOCTOR.
ALLSTATE DOESN'T WAVE THE
RIGHT TO HAVE IMEs.
>> THAT IS NOT ISSUE IN THE
CASE, THOUGH.
>> THAT IS PART OF THE ISSUE
JUSTICE LEWIS BECAUSE WHAT
WE DON'T KNOW, IT IS NOT
JUST THIS HOSPITAL.
OKAY?
WE DON'T KNOW IF AN INSURE
CALLS FOR PURPOSES OF
REFERRAL TO ARE THOUGH
PEEDIST WHETHER THEY ARE
BEING SENT TO THE GUY WHO IS
ROUTINELY BEING PAID BY
ALLSTATE TO SAY ARE NOT
HURT.
>> AREN'T WE LOOKING AT
CHARGES BY X AND WANTING
INSUREANCE COMPANY TO PAY
IT.
I DIDN'T UNDERSTAND THIS TO
BE LITIGATING JUST THE
EVERALL, THE WHOLE PRACTICES
WITH REGARD TO THIS.
YOU SEE IT THAT WAY?
>> I THINK THAT IS WHAT THE
TRIAL COURT RULED.
I THINK THE TRIAL COURT
RULED THERE WAS ONE OF TWO
WAY, ONLY ONE WAY YOU COULD
PAY BENEFITS REDUCED UNDER
THE PIP STATUTE THAT WAS IF
YOU COMPLY.
IF YOU DIDN'T COMPLY WITH
SUBSECTION 10, CUE NOT PAY A
REDUCED RATE.
WHAT ALLSTATE HAS SAID IS,
YES WE CAN PAY A REDUCED
RATE.
WHAT WE HAVE SAID IS, WAIT A
MINUTE, WHO IS THE ONE, THEY
WANT TO SAY INSURERS ARE
GETING BENEFITS, THAT MAY BE
TRUE, IF THE INSURED WAS
ABLE TO EXHAUST ALL OF THE
BENEFITS.
THAT MAY BE TRUE.
THEY MAY ACTUALLY GET MORE
BENEFITS IF THEY CAN
CONTINUE THE TREATMENT
THROUGH THE PERIOD OF TIME
THAT THE BENEFITS GET
EXHAUSTED THAT IS THE ONLY
TIME I KNOW FOR SURE THAT
THE INSURED WOULD DEFINITELY
RECEIVE A BENEFIT BUT IF
THEY, IF THE BENEFITS ARE
NOT AVAILABLE TO THE INSURED
BECAUSE OF IMEs AND THY CAN
YOU CUT OFF, THE ONLY PEOPLE
WHO ARE SAVING THE VAST
MAJORITY OF MONEY IS
ALLSTATE THEY ARE NOT
PASSING THAT ALONG IN TERMS
OF SAVINGS TO THE CONSUMER
AN PREMIUM.
>> AS A PRACTICAL MATTER, IF
YOU SAY ALLSTATE IS GOING TO
HAVE TO PAY THE TWO SUM,
THEY WILL HAVE TO PAY THOSE
TWO SUM, CORRECT?
ARE THE INSURED THEN
REQUIRED TO PAY 20% OF AN
ADDITIONALAL 20% BASED ON
THIS?
>> NO, YOUR HONOR.
THAT IS THE OTHER THING I
WANTED TO POINT OUT.
IN SITUATIONS WHERE THERE IS
MEDICATION, MEDICAID, ARE
STATUTORY PROHIBITIONS
AGAINST BALANCED BILLING.
THERE IS NO PROHIBITION
AGAINST BALANCED BILLING IN
THE CASE THEY WANT TO SAY
THEY WILL SAVE MONEY, THERE
IS NO GUARANTEE WHATSOEVER
THAT THE DOCTOR IS NOT GOING
TO BALANCE OR THE HOSPITAL
IS NOT GOING TO BALANCE
THESE PEOPLE.
THAT IS, IF YOU WANT IT IN A
NUTSHELL WHAT THE MOST
CRUCIAL THING IS, THAT IS
THE MOST CRUCIAL PROBLEMS
ABOUT THEIR POSITION.
>> ISN'T THAT AN ISSUE WHY
THE CONTRACT IS GOING TO BE
THE CRITICAL ISSUE?
AS TO WHETHER HOLY CROSS
UNDERSTOOD WHAT IT WAS DOING,
WHETHER PART OF THE BENEFIT
WOULD BE THEN THAT THERE IS
ISN'T BALANCED BILLING
ALLOWED.
THAT IS WHAT IS MISSING
BECAUSE WE DON'T HAVE
CONTRACTS IN THE RECORD?
>> WELL, THAT IS ONE OF THE
THINGS.
THE QUESTION IS:
>> DON'T WE SAY THOSE WOULD
BE ISSUED TO CONSIDER AS TO
WHETHER THIS IS
PROPROPROHIBITED, YOU KNOW,
CONTRARY TO THE PIP STATE
STATUTE OR NOT?
BUT TO SAY JUST, IT CAN'T
EVEN BE EXAMINED IS WHAT I
AM HAVING TROUBLE WITH.
IT DOESN'T MATTER WHAT THE
CONTRACTS SAY, IT DOESN'T
MATTER IF THIS IS ONE OF
GEORGE VAKA'S THINK CLIENTS
YOU CONTRACTED WITH, IF IT
COMES IN ANOTHER WAY, YOU
WILL CHARGE THE FULL RATE.
THERE IS CONTRACT
INTERPRETATION QUESTION.
I THINK IT IS FROM THIS
POINT, I REALIZE I AM OVER
MY TIME.
IF I CAN RESERVE A MINUTE
INSTEAD OF THE FOUR I TRIED
TO RESERVE FOR REYOU BUTAL.
THE LEGISLATURE MADE VERY
CLEAR WHAT THEY WERE
AUTHORIZING AUTO INSURERS
LIKE ALLSTATE TO DO.
THAT IS THEY WERE REQUIRING
ALLSTATE TO GO INTO DIRECT
NEGOTIATIONS WITH MY CLIENT,
THE HOSPITAL, OR PHYSICIANS,
OR CHIROPRACTOR, WHOEVER THE
HEALTH CARE PROVIDERS ARE
IDENTIFIED IN THE STATUTE,
AN CREATE THEIR OWN NETWORKS
IF THEY WANTED TO DO THIS.
OKAY?
THAT IS EXACTLY WHAT THE
STATUTE SAYS, THERE IS NO
DOUBT ABOUT THAT.
AND THEY HAVE ELECTED NOT DO
THAT.
AN SO THEN THE QUESTION IS:
AND THIS IS AGAIN POINTED
OUT IN THE AMICUS BRIEF,
PEOPLE LIKE BEECH STREET ARE
NOT REGULATED.
THEY ARE NOT THIRD-PARTY
ADMINISTRATORS.
THEY ARE NOT TYPICAL PPOs.
OKAY INTHEY ARE NOT
REGULATED PERIOD.
THAT IS WHY WE HAVE SAID,
YOU KNOW, YOU CAN HAVE THIS
DEBATE ON WHAT IS BETTER OR
WHAT IS NOT, BUT THAT DEBATE
IS BEST LEFT WHERE THEY CAN
EXAMINE ALL THOSE THINGS, WE
PRESUME THE LEGISLATURE DID
THAT, NOT ONCE, NOT TWICE,
BUT THREE TIMES.
>> I HAVE, AND I KNOW YOU
WEIGH ALSO, ABOUT ARE YOU
SAYING AGAIN, IF THEY ENTER
INTO THE CONTRACT DIRECTLY
WITH HOLY CROSS BUT WITHOUT
THE OTHER PARTS OF THE
STATUTE, THAT IS WITHOUT
LETTING INSURED KNOW THAT
THAT STILL IS PERMISSIBLE OR
NOT PERMISSIBLE?
>> IF THEY ENTER INTO
DIRECTLY WITH HOLY CROSS,
THE DEPARTMENT OF INSURANCE
UNDER THE STATUTE HAS THE
ABILITY TO LOOK AT
CONTRACTS.
UNDER THE CONTRACTS THAT
EXISTS WITH BEECH STREET
THEY ARE NOT UNDER THE
JURISDICTION OF THE
DEPARTMENT OF INSURANCE,
THEY ARE NOT INSURANCE
COMPANIES.
THEY HAVE NOT DIRECT LIEN
TERED INTO ANYTHING WITH
HEALTH PROVIDERS.
>> YES, THEY COULD DO THAT
IN THE SAME COULD OCCUR FOR
INSURED WHICH IS FIND
THEMSELVES IN A MANAGED CARE
NETWORK THEY DIDN'T KNOW
ABOUT IT.
>> BUT THERE ARE PROTECTIONS
IN LIVE IN THE HEALTH
INSURANCE AND WORKMAN
COMPENSATION FIELD, THAT IS
WHAT WE SAID.
WHEN THE LEGISLATURE HAS
WANTED TO AUTHORIZE THIS,
THEY HAVE PUT IN PLACE
WHATEVER CHECKS AN BALANCE
THESE LEGISLATURE SEEMS FIT
TO ALLOW THESE THINGS TO
OCCUR.
THEY DIDN'T DO THAT IN THIS
SITUATION.
WHAT THEY SAID IS WE'LL HAVE
THIS CHECK AN BALANCE, YOU
WILL HAVE CONTRACT DIRECTLY,
THE DEPARTMENT OF INSURANCE
WOULD HAVE THE ABILITY TO
REVIEW THOSE CONTRACTS.
EITHER THE DEPARTMENT OF
PROFESSIONAL REGULATION IN
TERMS OF DIRECT CONTRACTS
WITH THE PHYSICIANS OR THE
HEALTH CARE PROVIDER WAS
ALSO HAVE THE ABILITY TO DO
THAT, WE DON'T HAVE THAT
PROTECTION IN THE CASE.
THERE IS NO PROTECTION FOR
THE CONSUMER THAT WAY.
THANK YOU.
>> THANK YOU.
>> MR. GOD ZY
>> THANK YOU, YOUR HONOR.
>> WOULD YOU PICK UP WHERE
YOUR OPPONENT HAS LEFT OFF?
>> I WILL ADDRESS THAT IF KI
START, PERHAPS, TO ANSWER
YOUR QUESTION.
THE HOLY CROSS CONTRACT
AGREE NO BALANCED BILLING.
IF THE CONTRACT DOESN'T
APPLY, THE INSURED PAYS
MORE.
THE ANSWER TO YOUR QUESTION,
JUSTICE PARIENTE, ON THE
RECORD BEFORE THE COURT, THE
LOWER COURTS, HOLY CROSS
FOUND THAT INSURERS HAD
GREATER COVERAGE AN PAID
LESS AN IF HOLY CROSS WIN,
THEY HAVE LESS COVERAGE AND
PAY MORE.
THAT IS UNDISPUTED FACT.
>> WHAT ABOUT THE ISSUE THAT
THE ORIGINAL INSURERS WERE
RESPONSIBLE FOR MORE THAN
20% OF THE REDUCED AMOUNT?
>> NOT ON THE RECORD.
THE NEXT QUESTION.
I DON'T WEAR WHITE HAT.
I DO REPRESENT CHEVY AND
CADILLAC AN MY MOTHER, BUT
LET ME SAY WHAT THIS CASE
NOT ABOUT.
IT IS NOT ABOUT MANAGED
CARE.
IT IS ABOUT FREEDOM OF
CHOICE.
THE INSUREERS HAVE BEEN
CHOOSING TO GO ANYWHERE.
>> WELL, THE WORKER'S
COMPENSATION AND THE
REGULATION OF THE DEPARTMENT
OF INSURANCE PROTECTION OF
FLORIDA CITIZENS.
>> AND THAT THAT REGULATORY
SCHEME IS IN PLACE BUT HERE
THIS IS ALL OUTSIDE.
>> I AM GLAD HE DID.
I DIDN'T MEAN TO PUT YOU
OFF.
I WANTED TO ANSWER THE OTHER
TWO QUESTIONS FIRST.
>> BEFORE MY CLIENT WENT
DOWN THIS PATH.
BEFORE THE OTHER INSURANCE
COMPANIES WENT DOWN THIS
PATH.
WHO DID THEY CHECK WITH?
THEY CHECKED WITH THE OFFICE
OF INSURANCE REG LAYS.
THEY SAID HERE IS WHAT WE
WANT TO DO?
IS THIS A PROBLEM?
CAN WE DO IT?
FINALLY, THE INSURANCE BOTH
IN TESTIMONY AND LITIGATION
AN AT THE TIME SAID NO
PROBLEM.
>> THAT IS IN OUR RECORD?
>> YES, THAT IS IN YOUR
RECORD.
IT IS IN THIS RECORD.
IT IS IN YOUR RECORD NOT
ONCE BUT TWICE FOR BOTH
CASES.
>> I AM CONCERNED ABOUT THE
ADMISSIBILITY OF THE
DEPOSITION IN ANOTHER CASE
ON THE, WERE YOU USING IT AS
STATUTORY CONSTRUCTION, I
THINK THAT IS A BIT OF A
STRETCH.
>> ADP IS PART OF THE
NETWORK IS RELATED TO THIS.
NOW I WILL START TO THE
QUESTION THAT YOU STARTED
WITH AND REPEATED SEVERAL
TIMES BECAUSE I SEARCH ORAL
ARGUMENT FORCE WORDS OF
COMMON GROUND, OBVIOUSLY, WE
ARE TRYING TO GET THE PROPER
RESULTS HERE.
US WHAT THE COMMON GROUND?
THE COMMON GROUND HERE IS
SIMPLY A LITTLE BIT OF THE
GLASS HALF FULL OR IS THE
GLASS HALF EMPTY?
CAN I DO WHAT ALLSTATE DID?
OR HAS THE LEGISLATURE
PREEMED THE FIELD AND SAID,
YOU MAY NOT DO IT?
HENCE ANALOGY.
THERE IS CURFEW.
I AGREE WITH YOU.
YOU CAN'T VIOLATE CURFEW.
CAN'T DO THINGS WITHOUT YOUR
PARENT'S CONSENT BECAUSE YOU
ARE UNDERAGE.
THE LEGISLATURE HAS NOT, AS
CONFIRMED BY THE DEPARTMENT
OF INSURANCE.
IT HAD NOT SAID YOU MAY NOT
DO THE FOLLOWING.
UNLESS YOU DO XY Z.
>> BUT IS IT TRUE, THERE WAS
AN EARLIER VERSION OF THE
BILL?
>> YES, THE EARLIER VERSION
WAS AMENDED TO EXPAND
CHOICES AN OPPORTUNITIES.
>> THE ONE THAT NEVER
PASSED?
>> OH, THAT IS IMPROPER
LEGISLATIVE HISTORY.
WHO KNOWS WHY?
>> JUST TRYING TO GIVES
CONTEXT OF WHAT WAS GOING ON
HERE.
I AM STILL SOMEWHAT, I THINK
THE HARDEST HURDLE FOR ME,
FOR YOUR SITUATION IS THAT
THEY DON'T USE THE WORD
DIRECT AND INDIRECT.
>> THAT IS PRECISELY IT.
THE LEGISLATURE KNOWS HOW TO
USE THE WORD DIRECT OR
INDIRECT IF E WANTED IT
WOULD HAVE START OFF WITH
PROHIB BIG, THE IMPLICIT
POINT IN YOUR FIRST QUESTION
AND MR. VAKA AND MYSELF, THE
LEGISLATURE DIDN'T DO THAT.
THE LEGISLATURE DIDN'T DO
THAT.
>> THE FIRST SENTENCE IS
MEANINGLESS.
>> NO, IT IS NOT
MEANINGLESS.
>> WHY ISN'T IT MEANINGLESS?
>> WE AGREE WITH THE READING
OF IT.
AIM RUNNING OUT OF TIME.
>> ANSWER THE QUESTION,
PLEASE.
>> THEY MAY CONTRACT.
IT CLARIFIES.
THERE WAS A DEBATE BEFORE
ABOUT THE MEANING OF THE
AMENDMENT.
IS A COMMENTED EARLIER.
IT DOESN'T SAY YOU MAY ONLY
DO IT DIRECTLY AND ADMIT OR
ASK, ASK WE HAVE DIRECT
CONTRACT.
WE HAVE A DIRECT CONTRACT.
NO, WE HAD A CONTRACT
THROUGH BEECH STREET.
THAT WAS OURS.
WE OUTLINED THAT FROM DAY
ONE.
>> WE ARE NOT HEADED LIKE
TALKING ABOUT STEERING YOUR
INSURERS TO THE CERTAIN
REPAIR SHOP.
THAT IS WHERE YOU GOT TO GO.
BECAUSE IT GIVE MEAS
DISCOUNT.
>> IT IS FREEDOM OF CHOICE.
YOU WOULD AGREE THAT WOULD
BE INVALID?
>> I NEVER LOOKED AT THAT.
I WOULD BE SWALLOWING HARD I
SUSPECT.
I NEVER LOOKED THAT
QUESTION.
>> HOW CAN WE BE CERTAIN OF
THAT ASSURANCE ON THE
RECORD?
>> BECAUSE THE RECORD BEFORE
THE COURT IS THAT COMPLETE
FREEDOM OF CHOICE THEY CAN
GO WHEREVER THEY WANT IF
THEY HAPPEN TO USE SOMEONE
IN THE BEECH STREET PROVIDER
NETWORK.
>> RENEWAL NOTICE THAT YOU
SAY INDICATES THAT
INFORMATION?
>> YES.
> AREN'T YOU STEERING THEM
TO THESE PEOPLE BY TELLING
THEM, LOOK, CALL THIS
NUMBER, YOU CAN GET POSSIBLY
A DISCOUNT?
>> THAT IS UP TO PATIENT.
THE PATIENT CAN USE THE
REGULAR DOCTOR.
>> YOU STARTED OFF YOUR
ARGUMENT ABOUT HOSPITAL
GETTING THIS GREAT BENEFIT
61.6 MILLION ALLSTATE
CUSTOMERS.
>> ACCESS?
>> OR ACCESS TO THEM.
IF THEY ARE NOT BEING
DIRECTED HOW THEY ARE THEY
GETTING BENEFIT?
>> THAT IS CONSIDERATION.
YOU ARE ASKING NOW IN
SOMEWHAT -- IS THIS ARTICLE
CONTRACT CASE, NOT A
STATUTORY CASE.
IF YOU AGREE WITH OUR
READING IN THE HOLY CROSS
READING OF THIS STATUTE, THE
STATUTE DOES NOT BAR THIS,
THEN IT IS CONTRACT CASE.
YOU ARE SAYING WAS THEIR
SUFFICIENT CONSIDERATION
BECAUSE IF YOU ARE NOT
STEER, IF YOU ARE NOT
GUARANTEEING, WE ARE NOT GAR
REASON TEEING THEY GO THERE,
ALLSTATE HAS SAID, THE
RECORD REFLECTS IS, WE HAVE
INFORMED THE INSURER, THE IN
SHIRES WILL MAKE CHOICE.
OKAY.
YOU AGREE ON THE ANALOGY
WHICH IS THAT JUST BECAUSE,
AGAIN, YOU WITH ALLSTATE
HAVE A REDUCED RATE FOR YOUR
HOURLY RATE.
THAT DOESN'T BECOME THEN THE
REASONABLE RATE FOR WHAT YOU
MIGHT CHARGE OUR QLINLTS?
>> SOMEONE WITH WHOM I HAVE
NO CONTRACT WITH?
>> RIGHT.
> IT MAY BE EVIDENCE OF IT.
I DON'T, I DON'T, I THINK, I
THINK, JUST IN LAWYER
CONTEXT, LET'S SAY I HAVE A
STANDARD RATE.
LET'S SAY I HAVE CERTAIN
WERE FERED QLIBTS.
CLIENTS, NOT ATYPICAL, THERE
IS A NEW CLIENT VERSUS A
FOUR-YEAR RELATIONSHIP WITH.
I WOULD HAVE SOME CONCERN, I
THINK, IF, YOU KNOW, MY RATE
WAS 300% DIFFERENCE BETWEEN
THE STANDARD RATE.
>> SO THAT WOULD BE
REASONABLE AND CUSTOMARY.
BUT HERE AGAIN, YOU WANT TO
MAKE SURE, IF HOLY CROSS,
VIS-A-VIS BEECH STREET NEVER
INTENDED FOR ALLSTATE
INSURERS TO GET ADVANTAGE OF
A DISCOUNTED RATE WHICH IS
BELOW REASONABLE AND
CUSTOMARY.
>> IT IS CONTRACT QUESTION.
>> OH I.
THAT IS STILL OPEN.
>> NOT A STATUTORY QUESTION.
THAT IS STILL AN OPEN
QUESTION ON THE RECORD.
THE 4th DISTRICT RULED IT.
FROM MY STANDPOINT, I AM
TIED TO THE RECORD.
THE 4th DISTRICT HAS SAID,
THAT IS AN OPEN QUESTION TO
BE DECIDED ON REMAN TO THE
TRIAL COURT FOR THE COUNTY
COURT AND RERESPECT THAT.
WE DIDN'T APPEAL THAT.
DOES THE STATUTE PROHIBIT
THIS RIGHT OUT OF THE BOX?
THAT WAS THE WAY IT WAS
POSTURED?
>> IF THE COURT HAS A
QUESTION, THIS IS MY FIRST
TIME IN FRONT OF THIS
SUPREME COURT.
>> YOU HAVE COME IN AT AN
ACTIVE TIME.
>> IT IS A VERY NICE COURT.
THANK YOU VERY MUCH.
>> I DO HAVE ONE OTHER
QUESTION.
>> OH, YES.
>> SINCE THIS IS THE PIP
STATUTE THAT WE ARE TALKING
ABOUT, THE PIP STATUTE
REALLY HAS CHANGED HOW THESE
THINGS WERE DEALT WITH
BEFORE 1971, HOW SHOULD WE
CONSTREW THIS?
SHOULDN'T YOU HAVE TO HAVE
OR SHOULD YOU HAVE TO HAVE
SOME EXPRESS OR GRANT OF
AUTHORITY BY THE LEGISLATURE
TO ACT IN THE AREA AS
OPPOSED TO BEG ABLE TO ACT
BECAUSE THEY DID NOT SAY YOU
COULDN'T?
>> NO.
THIS HE IS GOES BACK TO THE
CENTRAL QUESTION THAT CHIEF
JUSTICE CLEARLY ASKED OUT OF
THE BOX.
I CAN NOT FIND, PRANKLY,
LOOKING UNDER ANY OTHER CASE
IN THIS COURT OR ANY OTHER
COURT, NOW, I MUST CONFESS,
THERE IS A LOT OF LAW.
A PROHIB BIG, YOU ARE
TALKING ABOUT A PREEMPTION
PROIN BITION, THE UNITED
STATES HAS SPOKEN OUT BUT
THEY ARE RARE ANIMALS OF THE
LEGISLATIVE BODY.
THAT IS WHAT YOU ARE REALLY
TALKING ABOUT.
MR. VAKA'S ARGUMENT WANTS TO
TAKE WHAT HE SAYS IS AN
AUTHORIZATION AN FLIP IT
AROUND TO BE IF NOT
AUTHORIZED, IT IS NEGATED AN
PROBIB ITED.
WHEN I WAS IN LAW SCHOOL
MANY YEARS, THERE IS A
FAMOUS TEACHER THAT USED TO
SAY, WHEN YOU ARE ADVISING
CLIENTS WHEN THE COURTS ARE
ADVISING, THEY WANT TO GET
PREDICTIVE NATURE TO THE
LAW.
WHAT BUSINESS WOULD LOOK AT
THAT STATUTE THAT SAYS YOU
MAY DO, THIS MAY DO THAT.
YOU MAY DO THIS, YOU MAY DO
X, YOU MAY DO Y, READ NIGHT,
YOU MAY NOT DO ANYTHING
ELSE.
THAT IS NOT WHAT THE
LEGISLATURE DID.
THEY COULD HAVE DONE THAT.
MAYBE THERE COULD BE
CONSTITUTIONAL CHALLENGE, I
DON'T KNOW.
>> PIP IS GOING TO GO AWAY?
>> THANK YOU VERY MUCH.
THANK YOU VERY MUCH.
PLEASURE.
>> MR. VAK ACTION WILL GIVE
YOU A FEW MINUTES HERE.
YOU HAVE EXHAUSTED ME,
ACTUALLY.
>> WE HAVE DONE OUR JOB, I
TAKE IT.
>> I APPRECIATE THE
OPPORTUNITY.
MISS WATKINS REFERRED KNOW
AN APEN DIGS OF'S BRIEF THAT
SHE FILED WITH THE COURT.
IN THAT APPENDIX IS AN
ATTACHED AN ORDER IN THE
ACTION THAT MR. GODFREY WAS
REFERRING TO ABOUT ADP.
WHERE ADP FILED JUDGMENT
ACTION IN FRONT OF THE
DEPARTMENT OF INSURANCE
ASKING WHAT THEY WERE DOING
WAS OKAY.
THAT WAS ATTACHED AS THE
ORDER DISMISSING THAT SAYING
IT WAS INAPPROPRIATE FOR D
TOY MAKE ANY COMMENT ABOUT
IT.
>> YEAH, THEN YOU WOULD SAY
AS FAR AS THE KINDS OF
EVIDENCE THERE THEIR ARE
ATTEMPTING TO PUT IN ABOUT
THE, THESE ARE NOT REALLY
THE KIND OF ADMINISTRATIVE
DETERMINATIONS THAT WE FIND
TO BE PERSUASIVE?
>> ALSO, WE POINTED THIS OUT
IN OUR BRIEFS.
WOULD YOU ONLY DEFER TO THAT
IF THERE WAS SOME AC BUY GU
DY IN THE STATUTE.
I DON'T THINK THERE IS ANY
AT ALL.
WE ARGUED THE STATUTE IS
CHRIS CALL CLEAR.
WE ARE THROWING IT IN BOTH
DIRECTIONS ARE ON WHAT IT
IS.
AND, AND I APPRECIATE
APPRECIATE MR. GOD GRY'S
POSITION BUT CAN'T USE THE
AUTHORIZATION MADE AND THEN
SOMEHOW ARGUE PROHIB BIG,
BUT I BELIEVE IT WAS IN THE
LAST ARGUMENT JUSTICE
CANTERO HAD ASKED MAYBE IT
WAS THE ONE BEFORE THAT,
WHAT ABOUT WHEN WE CONSTREW
THE WORDS IN THE SAME
STATUTE, WE HAVE TO CONTINUE
TO CONSTREW THEM ON THE SAME
WAY.
THE WORDS ON THE STATUTE
PARTICULARLY IN SUBSECTION 2
WHICH SAYS INSURERS MAY
INCLUDE CERTAIN EXCLUSIONS
IN THEIR POLICIES, HAS BEEN
CONSTRUED, IT HAS BEEN
CONSTRUED NOT TO AUTHORIZE
EXCLUSIONS THAT ARE HOT THE
ONES THAT WERE LISTED.
ALL WE ARE DOING IS WE ARE
SAYING, MAY MEAN THESE SAME
THING WITHIN THE CONFINES OF
THIS PART OF THE STATUTE AS
IT DOES IN SUBSECTION 2, THE
COLONIAL PENN OUT OF THE
49th DISTRICT IN WITHIN THAT
PROPOSITION WITHIN THE
PERIMETERS OF THE PIP
STATUTE.
WE BLEERX WE THINK YOU HIT
THE NAIL ON YOUR HEAD WITH
YOUR QUESTION MR. GODFREY
ABOUT AUTHORRIZATION.
THIS IS A PURE CREATURE OF
STATUTE.
THE INSURANCE IS DIFFERENT
FROM EAR OWN TYPE OF
CONTRACT IN WILT IS THE MOST
HEAVILY REGULATED AREA OF
CONTRACTS THAT I KNOW OF
WITH EXPENSE OF SECURITYS,
ALL RIGHT?
THIS STATE HAS EVERY RIGHT,
THE U.S. SUPREME COURT HAN
THE UNITED STATES CONGRESS
HAVE GIVEN THAT RIGHT TO
STATES TO REGULATE THESE
TYPE OF CONTRACTS.
SO IT IS NOT A PURE FREEDOM
OF CONTRACT ANALYSIS AND AS
LONG AS THE STATE HAS THE
ABILITY TO REGULATE IT IT
NEVER WILL BE.
THE ISSUE IN THE CASE, AT
LEAST, A WE SEE IT, COULD
THEY HAVE DONE THIS BEFORE
THE STATUTE WAS ENACTED?
WE SAY NO.
WHY WOULD THE LEGISLATURE GO
THROUGH, IF THIS WAS
AUTHORIZED ALL ALONG, WHAT
US THE PURPOSE OF THE
STATUTE?
WHY WOULD THEY DO IT IN '91
AND WHY CHANGE IT IN '92?
>> I THUINGT THE PURPOSE OF
THE STATUTE OVERALL WAS TO
ALLOW THERE TO BE, AS I
THOUGHT IT SAID EARLIER, FOR
THERE TO BE 100% PAYMENT OF
PIP OVER AN ABOVE THE 10,000
DOLLARS.
THAT IS OVERALL PURPOSE OF
THAT STATUTE.
>> IT INSURERS FOR AS LONG
CASE REMEMBER.
I KNOW THERE WERE DECISION
OUT OF THIS COURT.
I WANT TO SAY SMITH VERSUS
USAA WHICH DEALT WITH
BENEFITS.
INSURANCE COMPANY CAN
PROVIDE BENEFITS BROADER
THAN THE MINIMUM REQUIRED BY
YOU A STATUTE SO TO SUGGEST
IN SOME FASHION THEY WERE
NEEDING CLARIFICATION IN
ORDER TO GIVE THIS BENEFIT
TO INSURED THAT I HAVE A
HARD TIME BELIEVING THAT WAS
THE PURPOSE.
IF AS THEY SAY THEY CAN
OPERATE THIS PENT.OF THE
STATUTE THEN, TO ME, THERE
IS ONLY ONE CONCLUSION, THAT
MEANS THE LEGISLATURE PASSED
ONCE, BUT TWICE, THERE WAS
NO LEGISLATION, THERE WAS NO
REASON TO DO SO WHATSOEVER.
THE PRESUMPTION IS AGAINST
THAT.
SO WE THAT PRESUMPTION, YOU
KNOW, AGAIN, I MOW WE COME
BACK TO, WELL, ISN'T THIS A
MATTER OF CONTRACT?
NO, IT IS MOT.
I THINK YOU HAVE TO LOOK AT
THIS, WHY CAN THE
LEGISLATURE DO THIS?
I THINK THEY DID IT FOR A
VARIETY OF REASONS, GOOD
PUBLIC POLICY REASONS.
AND WHICH IS THEIR DOMAIN.
THAT IS THEIR THING.
THEY MAKE UP THE LAW, WE AS
LAWYERS TRY TO INTERPRET
THEM.
YOU TRY TO APPLY THEM, BUT
THE QUESTIONS THAT ALLSTATE
WANTS ANSWERED ISN'T THIS A
GOOD THING?
ISN'T THIS GREAT FOR
CONSUMER IN THE PROPER PLACE
FOR THOSE ARGUMENTS TO HAVE
BEEN HEARD AND WERE THEY
HURT US IN THE CAPITOL
BUILDING NOT HERE.
>> WHEN WILLING'S
CONFLUBLINGING DECISIONS OF
SUCH MAGNITUDE IS THEIR
LEGISLATION BEING PROPOSED
BY SOMEBODY TO TRY TO TAKE
THIS CLEAR STATUTE MAYBE
MAKE IT MORE CLEAR.
>> I AM UNAFFAIR OF ANY TO
ALLOW THE SUNSET FOR US TO
REVERT.
>> NOT DOING ANYTHING.
>> THANK YOU SO MUCH.
>> YOU HAVE EXHAUSTED IT.
IT IS WONDERFUL WAY TO
FINISH OUR WEEK WITH WORTHY
LAWYERING WE THANK YOU FOR
THE QUALITY OF THE ARGUMENTS
AND THE INFORMATION
PRESENTED AND YOU DO US ALL
PROUD BY BEING SUCH GOOD
LAWYER, WE THANK YOU FOR
THAT.
>> WE'LL STAND IN RECESS.
>> THANK YOU VERY MUCH.
>> PLEASE RISE.,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,