16 Fla. L. Weekly Supp. 463a
Online Reference: FLWSUPP 165FORES
Insurance — Personal injury protection — Coverage — Medical expenses — Law in effect at time of execution of PIP contract controls rights and liabilities of parties, irrespective of fact that plaintiff is medical provider/assignee rather than insured
FOREST HILL INJURY CENTER, INC., A/A/O SEBASTIAN C. JARAMILLO, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50-2008-SC010424 XXXXSB. March 16, 2009. James L. Martz, Judge. Counsel: Lindsay Porak, Law Office of Stephen D. Deitsch, P.A., Boca Raton, for Plaintiff. Rory Biggins, for Defendant. Christopher Kirwan.
ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court on Plaintiff’s Motion for Summary Judgment and Defendant’s Cross-Motion for Partial Summary Judgment and the Court being fully advised in the premises, it is hereby:
FACTS:
1. Maria Pelaez and Defendant entered into a contract for Personal Injury Protection Insurance (PIP) which was in effect from November 29, 2006 through November 29, 2007.
2. On November 27, 2007, an accident allegedly occurred involving Sebastian Jaramillo.
3. The Plaintiff alleges that their patient, Sebastian Jaramillo, qualifies for Personal Injury Protection benefits under Maria Pelaez’s policy with Defendant as an omnibus insured.
4. That the Plaintiff pursues the instant action as an alleged assignee of benefits from the Defendant’s alleged omnibus insured, Sebastian Jaramillo.
5. At the time of the accident, the relevant portion of the PIP statute provided that an insurer shall provide medical benefits condition of:
. . .Eighty percent of all reasonable expenses for medically necessary medical, surgical, x-ray, dental and rehabilitative services. . . Fla. Stat.§627.736(1)(a)
6. The current version of the statute, which took effect on January 1, 2008, amended section 627.736 to add the following provision:
. . .The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges Fla. Stat. 627.736(5)(a)(2).
7. That the alleged automobile accident that is the subject matter of the instant action occurred during the sunset period when there was no statutory Personal Injury Protection coverage; however, the policy of insurance at issue in the instant action provided for Personal Injury Protection coverage.
8. Sebastian Jaramillo allegedly received treatment from Plaintiff from November 28, 2007 through March 20, 2008.
ORDERED AND ADJUDGED:
1. The law in effect at the time an insurance contract is executed controls the rights and liabilities of the parties to that contract. Lumbermen’s Mutual Casualty Co. v. Ceballos, 440 So. 2d 612 (Fla. 3rd DCA 1983). Thus, the result in this action does not depend on when the claim arose or actually became ripe, i.e., when the benefits were denied or reduced. Hausler v. State Farm Mutual Automobile Ins. Co., 374 So. 2d 1037 (Fla. 2d DCA 1979).
2. The Florida Supreme Court has held that as a general rule that the statute in effect at the time an insurance contract is executed governs the substantive issues arising in connection with that contract. Hassen v. State Farm Ins. Co., 674 So. 2d 106 (Fla. 1996). In Progressive Exp. Ins. Co. Inc. v. Menendez, the Third District Court of Appeals held that “retroactive application of a statute that alters the substantive, vested, or contractual rights is prohibited absent clear legislative intent.” 979 So. 2d 324, 330 (Fla. 3rd DCA 2008). Statutes cannot constitutionally alter contractual or vested rights. Id. at 331.
3. The Defendant has argued that because the Plaintiff in the instant action is not the Defendant’s insured, but rather an alleged assignee of benefits from an alleged omnibus insured, the effect of the Defendant’s reimbursement method pursuant to Fla. Stat. § 627.736 (2008) does not retroactively alter any substantive, vested, or contractual rights to the Defendant’s insured and, if anything, the Defendant has provided their insured person more benefits because of the fee schedule ascribed under Fla. Stat. § 627.736 (2008). Hausler v. State Farm Mutual Automobile Ins. Co., 374 So. 2d 1037 (Fla. 2d DCA 1979).
4. Moreover, the Defendant has argued that because their duty is to their insured, and not to an alleged assignee or benefits or an alleged omnibus insured, that the line of case law cited by the Plaintiff is inapplicable to the instant case as the case law cited by the Plaintiff concerns itself with an insurer’s duty to their insured, not to those seeking benefits under a policy of insurance which they did not contract for; however, the Court finds that, as of the date of hearing, the law as interpreted by the County Court in Sarasota County in Physicians Group, LLC a/a/o Paul Androski v. GEICO Indemnity Co., is persuasive and finds, in the instant action, in accordance with the same.
5. In Physicians Group, LLC (a/a/o Paul Androski) v. GEICO Indemnity Co., the 12th Judicial Circuit Court in and for Sarasota County determined whether the 2007 or the 2008 version of Florida Statute §627.736 should be applied when the accident occurred in 2007 and the medical treatment occurred in 2008. 15 Fla. L. Weekly Supp. 1207c (October 22, 2008). The Court held that the amendments to the statute “were substantive, not remedial changes in the law that should not be applied retroactively.” Id. “Such a change, which affects the rights and obligation of both the insurance companies and the policyholders, cannot fairly be deemed a remedial amendment.” Id., citing State Farm Mutual Automobile Ins. Co. v. Laforet, 658 So. 2d 55 (Fla. 1995).
6. WHEREFORE, Plaintiff’s Motion for Partial Summary Judgment is Granted and the 2007 Fla. Statute shall be applied.
