16 Fla. L. Weekly Supp. 962b

Online Reference: FLWSUPP 1610BURC

Insurance — Personal injury protection — Coverage — Version of PIP policy in effect at time of execution of policy, which provided for payment of 80% of reasonable medical expenses, rather than version in effect at time of treatment, which provides for payment of 80% of Medicare fee schedule, is applicable

PHYSICIANS GROUP, LLC a/a/o JOSEPH BURCHFIELD, Plaintiff, v. GEICO INDEMNITY COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 09 CC 003180, Division J. July 28, 2009. Gaston J. Fernandez, Judge. Counsel: Anthony D. Barak, Barak & Zitani, L.L.C., Sarasota. Dale L. Parker.

ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT¹ AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE having come to be heard on June 25, 2009 on Plaintiff’s Motion for Summary Judgment and Defendant’s Motion for Summary Judgment. The parties stipulated for the purposes of these motions, only an issue of law is presented. Specifically, whether Defendant can apply the Medicare fee schedule contained in the revived and amended No-Fault Act, F.S. 627.736 (“PIP statute”), which took effect on January 1, 2008, in reimbursement of claims made under Personal Injury Protection insurance policies issued in 2007, for medical treatment occurring in 2008.

Florida Statute §627.736 (2007), in effect at the time the subject policy became effective, mandated payment of bills at 80% of the reasonable charge. The patient assigned their rights to PIP benefits to Plaintiff. In this case, for treatment rendered to the patient in 2007, Defendant paid Plaintiff’s bills at 80% of the billed amount pursuant to Florida Statute §627.736 (2007). However, for treatment Plaintiff rendered to the patient during 2008, Defendant paid Plaintiff’s medical bills based upon the Medicare fee schedule under the revived and amended version of Florida Statute §627.736, which did not go into effect until January 1, 2008.

In this case, the Court finds as follows:

1) The Court finds Judge Barton’s decision in the case of Explorer Insurance Company v. Physicians Group, LLC, 16 Fla. L. Weekly Supp. 317a (Hillsborough Circuit Ct., January 21, 2009) well reasoned and thought out wherein Judge Barton stated, “altering the amount paid to medical providers under the new PIP statute is a substantive change, not procedural that imposes new obligations on policyholders and the medical providers.”;

2) The Court is also influenced in the decisions of Lumbermens Mutual Casualty Company v. Ceballos, 440 So.2d 612 (Fla. 3rd DCA 1983) and Hausler v. State Farm Mutual Automobile Ins. Co., 374 So.2d 1037 (Fla. 2nd DCA 1979). As well, this Court agrees with Plaintiff’s argument distinguishing Defendant’s chief case of R.A.M. of South Florida, Inc. v. WCI Communities, Inc., 869 So.2d 1210 (Fla. 2nd DCA 2004) (Wherein the Court found that R.A.M, an unlicensed contractor, had no vested right to cure its unlicensed status after the statutory cure provision had been repealed in order to enforce an illegal contract) from the present matter as the rights of Plaintiff were vested in that they were standing in the shoes of the insured under a policy of insurance that went into effect prior to the effective date of the new PIP statute; and

3) The Court grants Plaintiff’s Motion for Summary Judgment and denies Defendant’s Motion for Summary Judgment.

ORDERED AND ADJUDGED that based upon the foregoing Plaintiff’s Motion for Summary Judgment is granted and Defendant’s Motion for Summary Judgment is denied. The Court reserves jurisdiction to award Plaintiff reasonable attorney’s fees and costs.

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¹The parties and the Court have agreed that this order shall apply to the consolidated cases attached as exhibit “1.”