16 Fla. L. Weekly Supp. 763c
Online Reference: FLWSUPP 168STEVE
Insurance — Personal injury protection — Insolvent insurers — Florida Insurance Guaranty Association Act — Motion to dismiss PIP case pursuant to provision of FIGA prohibiting commencement or continuation of action against insolvent insurer is denied where insurer was subject of order of rehabilitation, not order of liquidation — Insurer that is subject to order of rehabilitation is not “insolvent insurer” as defined by FIGA
RONALD J. TRAPANA, M.D., P.A. a Florida Corporation (Assignee of Roxanna Stevens), Plaintiff, vs. AEQUICAP PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 07-21230 CC 23 (2). April 17, 2009. Caryn Canner Schwartz, Judge. Counsel: Russel Lazega, The Law Office of Russel Lazega, North Miami. Michael Goldstein, Aequicap Property and Casualty Insurance Company, Ft. Lauderdale.
ORDER DENYING DEFENDANT’S AMENDED MOTION TO DISMISS
THIS MATTER came before the Court on Defendant, AEQUICAP PROPERTY AND CASUALTY INSURANCE COMPANY’S, Amended Motion to Dismiss. After the court reviewed the file, Defendant’s said Motion and Memorandum of Law, Plaintiff’s Response and Amended Response, Chapter 631, Florida Statutes, Parts I and II, case law provided by the parties, and after considering argument of counsel, the Court Denies Defendant’s Amended Motion to Dismiss. The Court determined that Section 631.68 (under Part II of Chapter 631) is clearly not applicable to the Defendant since the Defendant is not an “insolvent insurer” as defined in Section 631.54(6), under Part II of Chapter 631.
SUMMARY OF FACTS
The Plaintiff filed a complaint for Florida no-fault “PIP” insurance medical benefits. The complaint was filed on August 8, 2007. The relevant dates of service for PIP benefits were September 25, 2001-October 23, 2001. Aequicap Property and Casualty Insurance Company was formerly known as Underwriters Guarantee Insurance Company (“Underwriters Guarantee”). Underwriters Guarantee went into receivership on November 6, 2001 pursuant to Consent Order Appointing The Florida Department Of Insurance As Receiver For Purposes Of Rehabilitation, Injunction And Notice Of Automatic Stay. F.S. s. 631.041(1) provides: “An application or petition under s. 631.031 operates as a matter of law as an automatic stay . . . and which shall prohibit:
(a) The commencement or continuation of judicial, administrative, or other action or proceeding against the insurer or against its assets or any part thereof;” (emphasis added).
Because Underwriters Guarantee went into receivership, Part I, Chapter 631, the “Insurer Rehabilitation and Liquidation Act”, governs. The Act was created to put in place a procedure that must be followed when an insurer becomes insolvent and placed in receivership. Part II of this chapter is the “Florida Insurance Guaranty Association,” which also governs.
On March 6, 2006, the Second Judicial Circuit Court of Leon County Florida issued an order approving the sale of Underwriters Guarantee Insurance Company to APC Financial Holdings, Inc., terminating receivership and provided final discharge of the receiver. On August 15, 2006, the Florida Department of Financial Services approved the name change of Underwriters Guarantee Insurance Company to Aequicap Property and Casualty Insurance Company.
APPLICABLE LAW
There are two parts of Chapter 631. Part I, the Insurer Rehabilitation and Liquidation Act, establishes a comprehensive procedure for administrating insurer receiverships and protecting the interest of policy holders, creditors and other claimants and the public. Part II is known as the “Florida Insurance Guaranty Association Act” (FIGA). One of the purposes of FIGA as set forth in Florida Statutes Section 631.51(1), is to provide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer.
Florida Statute Section 631.57(1)(b), places FIGA in the shoes of an insolvent insurer and states FIGA shall have all rights, duties, defenses, and obligations of the insolvent insurer as if the insurer had not become insolvent. FIGA takes the place of the insolvent insurer for the purpose of administering covered insurance claims. Defendant alleges in its memorandum of law that the Plaintiff violated the terms of F.S. s. 631.68 when the Plaintiff failed to the file its claim within one year (and is forever barred from bringing its claim as it has not complied with the applicable statute of limitation period).
Based upon the language in Part II of Section 631.50 — Title, which states, “This part shall be known and may be cited as the “Florida Insurance Guaranty Association Act” [emphasis added], the language of Section 631.51 — Purposes, which states, “The purposes of this part are to: . . .” [emphasis added], the language of Section 631.54 — Definitions, which states, “As used in this part: . . .” [emphasis added], and the express terms of the statute itself, Section 631.68 applies only to “an insolvent insurer”. F.S. s. 631.68 — Limitation; Certain Actions, states, “A covered claim as defined herein with respect to which settlement is not effected and suit is not instituted against the insured of an insolvent insurer or the association within 1 year after the deadline for filing claims, or any extension thereof, with the receiver of the insolvent insurer shall thenceforth be barred as a claim against the association and the insurer.” [emphasis added].
According to F.S. s. 631.54(6)(definitions), also in Part II,
“Insolvent insurer” means a member insurer authorized to transact insurance in this state, either at the time the policy was issued or when the insured event occurred, and AGAINST WHICH AN ORDER OF LIQUIDATION WITH A FINDIND OF INSOLVENCY HAS BEEN ENTERED BY A COURT OF COMPETENT JURISDICTION if such order has become final by the exhaustion of appellate review.” [Emphasis added].
Here, the undisputed facts reveal that the order of rehabilitation was entered by the Second Judicial Circuit Court, not an order of liquidation. Since the statute is unambiguous, the basic rules of statutory interpretation are applicable (e.g., the plain meaning rule). Ford v. Browning, 992 So. 2d 132 (Fla. 2008) (finding “[t]his Court consistently has adhered to the plain meaning rule in applying statutory and constitutional provisions.”). F.S. s. 631.54(6) is clear in its definition of an “insolvent insurer”, and in order to be an “insolvent insurer” pursuant to the statute, the carrier must have an order of liquidation entered against it. Also note that the definitions of “insolvency” and “insurer” in Part I of Chapter 631, are under separate subsections of Section 631.011 and that there is no definition of the term “insolvent insurer” in Part I. Furthermore Chapter 631 provides separate sections and subsections that specifically govern liquidations and that specifically govern rehabilitations.CONCLUSION
Therefore, F.S. s. 631.68 (in Part II) applies only to an “insolvent insurer” as defined in Section 631.54(6), also in Part II and, as such, F.S. s. 631.68 is inapplicable in the instant case. As a result, all actions against Defendant were stayed as a matter of law from November 6, 2001 until March 6, 2006, thus preventing Plaintiff from initiating suit against Defendant and tolling the applicable statue of limitations period. Plaintiff is in compliance if Plaintiff filed its lawsuit within the applicable statute of limitations period. For all the reasons set forth above, the Court Denies Defendant’s Amended Motion to Dismiss.
