16 Fla. L. Weekly Supp. 960c
Online Reference: FLWSUPP 1610OCAN
Insurance — Personal injury protection — Coverage — Determination of applicable PIP statute is based on date of accident and treatment, not date policy was issued
M & E DIAGNOSTIC SERVICES, INC., (as assignee of Ocana, Anais), Plaintiff, vs. DIRECT GENERAL INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Dade County. Case No. 08-020510-SP-05. July 30, 2009. Wendell M. Graham, Judge. Counsel: Neil M. Gonzalez, Miami. Don Mathews, Don Mathews & Associates, P.A., Fort Myers.
ORDER
THIS CAUSE came before the Court on the Defendant’s Motion for Summary Judgment, and the Court having heard argument of counsel on, and being fully advised on the premises it is hereby:
ORDERED AND ADJUDGED that:
1. Defendant’s Motion for Summary Judgment is GRANTED regarding the application of Florida Statute § 627.736(5)(a)(2)(f) (2008).
2. After review of Defendant and Plaintiff’s uncontested facts, the Court determined that the policy at issue had effective dates of August 13, 2007 through August 13, 2008.
3. Claimant, Anais Ocana was involved in a motor vehicle accident that occurred on May 5, 2008.
4. As a result of the May 5, 2008 accident Anais Ocana sought medical treatment from the Plaintiff on May 8, 2008 covered under PIP No-Fault benefits.
5. The policy provides for covered losses within the applicable policy period that “[a]ll Personal Injury Protection benefits will be payable in accordance with Florida Statute §627.736.”
6. Defendant, DIRECT GENERAL INSURANCE COMPANY, processed Plaintiff’s bills in accordance with Fla. Stat. §627.736(5). Specifically, the amount allowed by Defendant for Plaintiff’s charges was calculated pursuant to Medicare Part B and Worker’s Compensation fee schedules for the region in which Plaintiff’s services were rendered.
7. It is well settled that plain language of a statute controls the application of that statute. Donato v. American Telephone and Telegraph Co., 767 So.2d 1146, 1150 (Fla. 2000). Where the statutory language is clear and unambiguous, “the statute must be given its plain and obvious meaning.” Id.; Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984). The plain language of the enacting legislation states that “sections 8 through 20 of this act shall take effect January 1, 2008.” Ch. 2007-324 §23, Laws of Florida.
8. With the advent of §627.736(5)(a)2, Fla. Stat. (2008), the Legislature set forth a specific statutory scheme for application of the subject fee schedules, thereby eliminating any supposition as to whether and how an insurer may apply them. Ch. 2007-324 §23, Laws of Florida. Sections 13 and 20 of the enacting legislation revive and amend the statute that existed prior to sunsetting in October of 2007.
9. Section 20 includes the language codified in Florida Statute §627.736(5)(a)(2)(f), establishes payment for medical services at 80 percent of “200 percent of the applicable Medicare Part B fee schedule”. Id. §20. Based on this language, the new fee schedule provision of F.S. §627.736 shall apply beginning January 1, 2008. Thus, the plain language of the enacting legislation reflects the subject fee schedule became effective January 1, 2008.
10. Section 19 of the 2008 legislation states that the “act is intended to be remedial and curative in nature and to minimize confusion concerning the changes made by this act.” Id. § 19. As such, Defendant’s application of the fee schedule in the instant case is wholly consistent with the remedial and curative legislative intent as described herein.
11. The Legislature’s ability to enact a statute with retroactive application turns on whether the result is substantive or procedural in nature. As the Florida Supreme Court has explained,“substantive law prescribes duties and rights and procedural law concerns the means and methods to apply and enforce those duties and rights.” Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla. 1994).
12. This issue was addressed in the context of a PIP case in Progressive Express Ins. Co. v. Menendez, 979 So.2d 324, 330 (Fla. 3d DCA 2008) (finding retroactive application of the pre-suit demand requirement in s. 627.736(11) appropriate notwithstanding that policy inception and the subject date of loss both preceded enactment of the demand letter requirement). The court stated:
Although the plaintiffs’ lawsuit clearly arises out of events (the execution of the policy and [the subject] accident) predating the enactment of subsection 627.736(11), Florida Statutes (2001), applying subsection 627.736(11) to the plaintiffs’ action would not violate the general rule against retrospective operation unless new legal consequences attach to these events. If application of the statute is merely procedural, retroactive application is not prohibited. On the other hand, retroactive application of a statute that alters the substantive, vested, or contractual rights is prohibited absent clear legislative intent. Because we conclude that the application of subsection 627.736(11) to the plaintiffs’ claim for PIP benefits is procedural in nature, and it does not alter any contractual or vested rights of the plaintiffs, we find that to require the plaintiffs to provide presuit notice before filing their lawsuit after the enactment of the statute does not violate the general rule against retrospective operation.
13. In Florida Superior Imaging (a/a/o Jean Major) v. Direct General Insurance Co., Case No.: 08-14790 [16 Fla. L. Weekly Supp. 777a], County Court in and for Miami-Dade County, Florida, Judge Lawrence King entered Summary Judgment in favor of Defendant Direct General Insurance where an insured’s policy had an effective date of July 16, 2007 through July 16, 2008, an accident occurred on January 8, 2008, and treatment was rendered on January 21, 2008 and payment by Defendant was made according to §627.736(5)(a)(2)(f), Fla. Stat. (2008). The Florida Superior Court, relying upon Progressive v. Mendez highlighted the importance of the accident and treatment occurring after the effective date of the statutory amendment and during the policy period in ruling that payment made by Defendant, according to §627.736(5)(a)(2)(f), Fla. Stat. (2008) was correctly made.
14. Based upon the reasoning in Florida Superior Imaging (a/a/o Jean Major) v. Direct, Case No.: 08-14790 [16 Fla. L. Weekly Supp. 777a], and Progressive v. Mendez, 979 So.2d 324 (Fla. 3d DCA 2008) and the clear legislative intent the Court finds that the subject policy is binding and incorporates the amendments to the 2008 PIP statute and it should be anticipated by the provider that based on the dates of treatment, policy issued to the claimant/insured, and aforementioned case law, payment was correctly made pursuant to §627.736(5)(a)(2)(f) (2008).
IT IS ADJUDGED that Plaintiff, M & E DIAGNOSTIC SERVICES, INC. (as assignee of Anais Ocana), take nothing by this action and Defendant, DIRECT GENERAL INSURANCE COMPANY, shall go hence without day and the Court retains jurisdiction for the purpose of determining the entitlement of attorney’s fees and costs upon proper Motion from Defendant.
