16 Fla. L. Weekly Supp. 680a
Online Reference: FLWSUPP 167MCKEN
Insurance — Personal injury protection — Coverage — Medical expenses incurred during statutory “gap period” — No merit to medical provider’s argument that no statute applies to services rendered during “gap period” created by sunsetting of PIP statute where original policy contained PIP coverage which was revived and amended to continue in effect after “gap period” — Provisions of PIP statute in effect at time policy went into effect applies to bills accrued during “gap period”
MR SERVICES I, LLC D/B/A C & R IMAGING OF HOLLYWOOD, (Tameka McKenzie), Plaintiff, vs. AMERICAN INDEPENDENT INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 08-05342, Civil Division. April 23, 2009. Sharon L. Zeller, Judge. Counsel: Steven Lander, Fort Lauderdale. Neil V. Singh, Allen, Kopet & Associates, Ft. Lauderdale, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came on before the Court at March 2nd, 2009, on Defendant’s Motion for Final Summary Judgment, and the Court having heard argument of counsel and being otherwise fully advised in the premises, hereby finds as follows:
Tameka Sanchez (a/k/a Tameka McKenzie) maintained a policy of automobile insurance with American Independent Insurance Company (Florida Policy Number 2857744), with effective dates of August 30th, 2007, through August 30th, 2008. The policy was cancelled on May 12, 2008, however that cancellation does not affect the analysis herein.
On or about October 26, 2007, Tameka Sanchez (a/k/a Tameka McKenzie) was involved in an automobile accident.
As the result of the automobile accident on October 26, 2007, Tameka Sanchez (a/k/a Tameka McKenzie) sought treatment for medical services through the MR Services I, LLC (d/b/a C & R Imaging of Hollywood) on or about November 19, 2007.
American Independent Insurance Company paid MR Services I, LLC (d/b/a C & R Imaging of Hollywood) for the reasonable amount of the bill for services performed on November 11, 2007, pursuant to Section 627.736(5)(b)(5), Florida Statutes.
MR Services I, LLC (d/b/a C & R Imaging of Hollywood) received the payment and thereafter submitted a demand to American Independent Insurance Company seeking payment of additional amounts.
On September 30, 2007, the Florida Motor Vehicle No-Fault Law, which included Section 627.736, Florida Statutes, expired by operation of the Sunset Provisions included in the statute.
Thereafter, on October 11, 2007, the Florida Legislature re-enacted the Florida Motor Vehicle No-Fault Law, including Section 627.736, Florida Statutes, to take effect on January 1, 2008.
The intervening time between October 1, 2007, and December 31, 2007, is commonly referred to as the “gap period”. Both the accident and treatment took place during this “gap period”.
The October 11, 2007 version of the Florida Motor Vehicle No-Fault Law stated that “Any personal injury protection policy in effect on or after January 1, 2008, shall be deemed to incorporate the Provisions of the Florida Motor Vehicle No-Fault Law, as amended by this act.” Section 627.7407, Florida Statutes.
Moreover, the October 11, 2007 version of the Florida Motor Vehicle No-Fault Law also stated that: “Any personal injury protection policy in effect on or after January 1, 2008, shall be deemed to incorporate the provisions of the Florida Motor Vehicle No-Fault Law, as revived and amended by this act.” Section 627.7407, Florida Statutes.
Further, the October 11, 2007 version of the Florida Motor Vehicle No-Fault Law includes legislative findings concerning the reasons for application of the new statute to all policies, which states: “The Legislature finds that in order to protect the public health, safety, and welfare, it is necessary to revise or endorse policies in effect on January 1, 2008, to add personal injury protection coverage as required by this section, and to provide a uniform date for motor vehicle owners to obtain or continue such coverage and for insurance policies to provide such coverage. In order to avoid revising in-force policies, enforcement would depend on policyholders electing to add such coverage, or providing a nonuniform date for coverage to be mandatory as policies renew which results in unequal treatment under the law, or delaying the effective date for at least 1 year to provide a uniform date after all policies have renewed, any of which options would result in a much greater number of uninsured vehicles, an inability of accident victims to obtain medical care, a greater level of uncompensated medical care, higher costs to other public and private health care systems, and greater numbers of persons being subject to penalties for noncompliance.” Section 627.7407, Florida Statutes.
MR Services I, LLC (d/b/a C & R Imaging of Hollywood) filed suit alleging that the benefits were not properly paid according to Section 627.736, Florida Statutes. At the hearing, however, counsel for MR Services I, LLC (d/b/a C & R Imaging of Hollywood) stipulated that the Complaint was in error and instead argued that Section 627.736, Florida Statutes, did not apply to the bill for services of November 19, 2007, since the Florida Motor Vehicle No-Fault Law had expired at the time of the loss and the October 11, 2007 version did not take effect until January 1, 2008 (i.e. that since the services were performed during the “gap period”, the Florida Motor Vehicle No-Fault Law did not apply). Due to the inconsistencies between the Complaint, Plaintiff’s affidavit, and Plaintiff’s arguments at the hearing, any allegations regarding the calculation of the specific additional amounts are stricken and not at issue herein. Accordingly, the issue is whether or not Section 627.736, Florida Statutes, applies due to the expiration of the statute due to the Sunset Provisions.
American Independent Insurance Company moved for summary judgment based on the fact that the Florida Motor Vehicle No-Fault Law was in place at the time the contract was entered into. Moreover, they argued that the October 11, 2007 version of the Motor Vehicle No-Fault Law included a clear expression of intent by the Legislature that it was amended and re-enacted to provide consistent application of the Florida Motor Vehicle No-Fault Law.
Alternately, American Independent Insurance Company moved for summary judgment based on Accord and Satisfaction, since they paid for the services and the check was deposited by MR Services I, LLC (d/b/a C & R Imaging of Hollywood). The Court denies American Independent Insurance Company’s motion based on accord and satisfaction without prejudice, however addresses the other issues presented herein.
MR Services I, LLC (d/b/a C & R Imaging of Hollywood) contended that because the Legislature allowed the Florida Motor Vehicle No-Fault Law to expire, the provisions of Section 627.736, Florida Statutes, within the Florida Motor Vehicle Law simply did not apply.
American Independent Insurance Company correctly points out that the general rule in Florida is that the date of the inception of the policy controls. See Lumbermens Mutual Casualty Company v. Ceballos, 440 So.2d 612 (Fla. 3rd DCA 1983) (“The law in effect at the time the insurance contract is executed governs the issues arising under that contract.”) In this instance, the earlier version of the statute controls on this issue.
The Legislature addressed the circumstance at issue in this case, where an insured had PIP coverage notwithstanding the expiration of the earlier version of the law. Chapter 2007-234, Florida Laws, the October 11, 2007 version of Florida Motor Vehicle No-Fault Law. The law included pronouncements of the Legislature’s intent, as follows:
“Section 19. This act revives and reenacts, with amendments, the Florida Motor Vehicle No-Fault Law, which expired by operation of law on October 1, 2007. This act is intended to be remedial and curative in nature and to minimize confusion concerning the changes made by this act to ss. 627.730-627.7405, Florida Statutes. Therefore, the Florida Motor Vehicle No-Fault Law shall continue to be codified as ss. 627.730-627.7405, Florida Statutes, notwithstanding the repeal of those sections contained in s. 19, chapter 2003-411, Laws of Florida.” (emphasis added)
“The Legislature finds that in order to protect the public health, safety, and welfare, it is necessary to revise or endorse policies in effect on January 1, 2008, to add personal injury protection coverage as required by this section, and to provide a uniform date for motor vehicle owners to obtain or continue such coverage and for insurance policies to provide such coverage.” (emphasis added)
Moreover, the October 11, 2007 version of the Motor Vehicle No-Fault Law included a requirement that companies notify their insureds with PIP coverage that effective January 1, 2008, as follows: “That if the policyholder already has personal injury protection coverage, that coverage will be amended effective January 1, 2008, to incorporate legally required changes without any additional premium and that the policyholder is not required to take any further action.” Section 627.7407, Florida Statutes (emphasis added).
The Plaintiff’s argument that the expiration of the statute means that no statute would apply to the bills at issue is also contrary to the intent of the Motor Vehicle No-Fault Law. In reviving and re-enacting the law on October 11, 2007, the Legislature clearly indicated its underlying concern for consistent application. Importantly, they also recognized that some policies (as in this case) would still continue to include PIP coverage and provided for a uniform application.
Since the original policy at issue contained PIP coverage, which was revived and amended to continue in effect after January 1, 2008, the Court rejects the argument that no statute would apply because the services were rendered in the “gap period”. Moreover, the provisions of the Motor Vehicle No-Fault Law would apply as espoused by the Lumbermen‘sCourt.
As such, the Court finds as a matter of law that the provisions of Section 627.736, Florida Statutes, in effect at the time the policy went into effect did apply to the bill at issue herein. Moreover, the Court declares that the Legislative intent codified into the October 11, 2007 version of the Motor Vehicle No-Fault Law clearly enunciated the goal of being curative and remedial to promote consistent application including the continuation of PIP coverage. The result requested by Plaintiff would render the Legislature’s intent meaningless.
Accordingly, it is hereby ORDERED and ADJUDGED as follows:
1) Defendant’s Motion for Summary Judgment based on Accord and Satisfaction is denied, without prejudice.
2) Final Summary Judgment is hereby GRANTED in favor of Defendant, American Independent Insurance Company, that payment was properly performed pursuant to Section 627.736(5)(b)(5), F.S., since the Florida Motor Vehicle No-Fault Law would be applicable to the instant payment.
3) Plaintiff shall take nothing by this action, and American Independent Insurance Company shall go hence without day. The Court reserves jurisdiction to award attorneys’ fees and costs in favor of American Independent Insurance and against Plaintiff, including jurisdiction to determine the issue of entitlement and the amount of such attorneys’ fees.
