17 Fla. L. Weekly Supp. 1031a
Online Reference: FLWSUPP 1710AWOO
Insurance — Personal injury protection — Coverage — 2007 PIP statute in effect at time policy was executed rather than 2008 PIP statute in effect at time of treatment controls reimbursement where statutory change is substantive change and impairs vested rights
ALEN E. GORDON, M.D., P.A. (a/a/o Antoinette Woodard), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 09 04219 CC 23 (1). April 20, 2010. Myriam Lehr, Judge. Counsel: Benjamin G. Partlow, Topkin & Egner, P.L., Deerfield Beach. Michael A. Rosenberg.
ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO COUNT I AND FINAL SUMMARY JUDGMENT AS TO COUNT II AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT
THIS CAUSE, having come before the Court upon Plaintiff’s Motion for Partial Summary Judgment as to Count I Breach of Contract for Personal Injury Protection Benefits and Final Summary Judgment as to Count II Declaratory relief and Defendant’s Cross-Motion for Summary Judgment and the Court having considered same, and having reviewed the file and being otherwise duly advised in the premises, it is thereupon:
ORDERED AND ADJUDGED that Plaintiff’s Motion is GRANTED and Defendant’s Motion is DENIED as follows:
I. FINDINGS OF FACT
1. The following facts are not in dispute.
2. Defendant wrote a policy of insurance to Shirley Woodward Plummer, which provided coverage for personal injury protection benefits, and had a policy period of August 18, 2007 through February 18, 2008.
3. Antoinette Woodard was entitled to receive benefits for personal injury protection under Defendant’s policy with Shirley Woodward Plummer.
4. The Complaint arises from the circumstances surrounding an automobile accident which occurred on February 17, 2008, in which Antoinette Woodard sustained personal injuries as a result of the accident.
5. The above insurance contract was in full force and effect on the date of the above accident and provided PIP coverage for medical expenses incurred by Antoinette Woodard for bodily injuries sustained in said accident.
6. As a result of the injuries sustained in the February 17, 2008 accident, Antoinette Woodard went to the Plaintiff for treatment.
7. Antoinette Woodard assigned her right to receive insurance benefits to the Plaintiff.
8. Antoinette Woodard received treatment from the Plaintiff for dates of service February 22, 2008 through March 3, 2008.
9. Defendant reimbursed Plaintiff according to the Medicare or Worker’s Compensation fee schedule pursuant to the 2008 version of section 627.736.
10. The Plaintiff alleges that Defendant improperly utilized the 2008 version of section 627.736 when it reimbursed Plaintiff according to the 2008 version of section 627.736 and Medicare and Worker’s Compensation fee schedule.
11. The Defendant alleges that it properly utilized the 2008 version of section 627.736 because the amendment is specifically incorporated into the insurance policy by the plain language of the statute.II. ISSUES OF LAW
12. The Court finds that the general rule is that the statute in effect at the time an insurance policy is executed governs substantive issues arising from the contract. Menendez v. Progressive, 2010 WL 375080 * 2 (Fla. 2010) [35 Fla. L. Weekly S222b] (citing Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106 (Fla. 1996); Lumbermen’s Mut. Cas. Co. v. Ceballos, 440 So. 2d 612 (Fla. 3rd DCA 1983); Hausler v. State Farm Mut. Auto. Ins. Co., 374 So. 2d 1037 (Fla. 2nd DCA 1979).
13. This Court finds that the legislature intended for the 2008 amendment to apply to all policies in effect as of January 1, 2008.
14. However, the Defendant may not apply the 2008 amendments to the instant policy and claim because the amendments, and specifically, the inclusion of the permissive fee schedule, is a substantive change and impairs vested contractual rights. See Menendez, 2010 WL 375080.
15. As such, the Defendant may not apply the fee schedule contained in the 2008 amendment to the subject policy and dates of service that were rendered in 2008 because the policy had an effective date prior to the effective date of the amendment.
16. Therefore, the Plaintiff’s motion is granted and the Defendant’s motion is denied.
