17 Fla. L. Weekly Supp. 478a
Online Reference: FLWSUPP 1706SUAR
Insurance — Personal injury protection — Coverage — 2007 PIP statute that was in effect at time policy was executed and policy language requiring that medical expenses be paid at 80% of reasonable charges, rather than 2008 PIP statute which provides for reduced payment, is applicable
A REHAB ASSOCIATES OF S. FLA, CORP, a Florida Corporation (assignee of Suarez, Nelson 2), Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-17434 COCE 54. March 16, 2010. Lisa Trachman, Judge. Counsel: Russel Lazega and Yasmin Babain Law Office of Russel Lazega, North Miami, for Plaintiff. Law Office of Richard M. Nelson, Plantation, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT (Re: RetroactiveApplication of the 2008 Fee Schedule)
THIS CAUSE came before the Court at hearing on January 19, 2010 on Plaintiff’s Motion for Summary Judgment (on the issue of whether payment made by Defendant pursuant to the 2008 P.I.P. fee schedule for a claim under a 2007 policy is proper) and the Court, having reviewed the Motion and entire Court file; reviewed the relevant legal authorities; heard argument of counsel, and been sufficiently advised in the premises, finds as follows:
Background:This is a P.I.P. case. The applicable policy of insurance commenced on January 10, 2007 when the 2007 P.I.P. statute was in effect. The date of loss occurred on May 22, 2007. The Plaintiff rendered treatment to the patient from June 25, 2007 through February 7, 2008. Defendant denied payment for dates of service October 11, 2007 through February 7, 2008, which were rendered after an independent medical examination (hereafter “IME”) on September 22, 2007. Defendant made payment at 80% for all services rendered prior to the IME (June 25, 2007 through September 4, 2007).
Plaintiff moves for partial summary judgment on the issue of pricing asserting that payment for all treatment dates must be made at 80% (the amount authorized by Defendant for the services rendered prior to the IME and is not properly reimbursed under the 2008 Medicare Part B participating physician’s fee schedule pursuant to F.S. s. 627.736 (“2008 fee schedule”). Specifically, Plaintiff maintains that the 2007 P.I.P. statute and the applicable policy of insurance are controlling because the insurance contract was entered into when the 2007 P.I.P. statute was in effect, prior to the effective date of the 2008 P.I.P. statute. As such, the insurer must apply the P.I.P. law in place at the time the contract was executed as to do otherwise would affect the provider’s substantive rights to payment (namely, the contracted payment amount).
Legal Conclusions: The Court bases its current decision off of its previous ruling in Fidel S. Goldson, D.C., P.A. v. GEICO Indemnity Co., 17 Fla. L. Weekly Supp. 43b (Broward County Court, Judge Lisa Trachman, 2009), which concerned this very same issue. In fact, the facts of the instant case are even more compelling than those of Fidel S. Goldson, D.C., which involved a policy that commenced during the GAP period, a vehicle accident that occurred in 2008, and services that were rendered in 2008. Specifically, the instant case involves a policy that commenced in 2007 (prior to the GAP period), a vehicle accident that occurred in 2007, and services that were rendered both in 2007 and 2008.
“In the context of a policy of insurance issued to an insured, Courts have held that the ‘statute in effect at the time the insurance contract is executed governs any issues arising under that contract.’ ” See MR Services, LLC v. United Auto. Ins. Co., 16 Fla. L. Weekly Supp. 678a (Broward County, Judge Robert W. Lee, 2009) quoting Lumbermens Mutual Casualty Company v. Ceballos, 440 So.2d 612 (Fla. 3rd DCA 1983); citing to Metropolitan Life Insurance Co. v. Fugate, 313 F.2d 788 (5th Cir. 1963); Allison v. Imperial Casualty & Indemnity Co., 222 So.2d 254 (Fla. 4th DCA 1969); Poole v. Travelers Ins. Co., 130 Fla. 806, 179 So. 138 (1937); See also Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 108 (Fla.1996), citing with approval Lumbermens for this well settled legal proposition.
Moreover, the Florida Supreme Court has consistently adhered to the sound legal principle that neither the Courts nor the legislature may retroactively modify or impair established substantive rights under a contract. See Smiley v. State, 966 So. 2d 330 (Fla. 2007).
In the instant case, the Defendant’s unilateral, retroactive application of the fee schedule in the 2008 P.I.P. statute (which undisputedly pays less than contract/policy of insurance) clearly affects the substantive rights and obligations of both the insurance companies and the policyholders, and cannot properly be deemed a remedial amendment. See State Farm Mutual Automobile Ins. Co. v. Laforet, 658 So. 2d 55 (Fla. 1995).
Accordingly, the Defendant’s payment under the policy of insurance at issue must be made pursuant to the 2007 P.I.P. statute and the applicable language of the policy as to do otherwise would retroactively affect the substantive rights of the Plaintiff (how much is paid under the insurance contract).
Accordingly, it is hereby
ORDERED AND ADJUDGED the Plaintiff’s Motion for Summary Judgment is GRANTED. Partial summary judgment is entered in favor of Plaintiff as to pricing.
