17 Fla. L. Weekly Supp. 824a
Online Reference: FLWSUPP 1709APOP
Insurance — Personal injury protection — Coverage — Medical expenses — Because amendment to PIP statute giving insurer option to pay charges at 200% of applicable Medicare Part B Fee Schedule is procedural in nature, amendment operates prospectively and applies to all policies in effect on or after January 1, 2008 — Question certified
APOPKA WELLNESS CENTER, INC., (as assignee of Cheri Hohmeister), Plaintiff, vs. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2008-SC-9066. April 9, 2010. Antoinette Plogstedt, Judge. Counsel: Scott A. Hutchens, Banker, Lopez, & Gassler, P.A., St. Petersburg. Charles M. Rand, Charles M. Rand, P.A.
FINAL JUDGMENT FOR DEFENDANT
THIS CAUSE having come before the Court on Plaintiff’s and Defendant’s Cross-Motions for Summary Judgment on March 30, 2010, and the Court having heard arguments from counsels for Plaintiff and Defendant, and otherwise being fully advised in the premises hereby, FINDS, ORDERS AND ADJUDGES as follows:
1. By Joint Stipulation of the Parties, the undisputed facts in this case demonstrate as follows:
A. The contract of automobile insurance at issue provided Personal Injury Protection benefits and was in effect from May 6, 2007 to November 6, 2007.
B. The date of loss at issue was September 8, 2007.
C. The dates of service at issue all occurred on or after January 1, 2008.
D. The Defendant paid all of Plaintiff’s bills at issue timely based on 200% of the applicable Medicare Part B fee schedule as set forth in Florida Statutes §627.736(5)(a)(2)(f) (2008).
2. This Court finds in accordance with its earlier decisions in Waterford Lakes Wellness & Injury Clinic, Inc., a/a/o Damaris Fernandez v. Progressive American Ins. Co., Case No. 08-CC-10977; Florida Medical & Injury Center, Inc., a/a/o Renita Johnson v. Government Employees Insurance Company, Case No. 08-SC-10201, and; Physiocare Medical & Wellness Center a/a/o Marie Dominguez v. GEICO Indemnity Company, Case No.: 09-SC-2425.
3. On October 11, 2007, the Florida Legislature reenacted the Florida Motor Vehicle No-Fault Law (PIP Statute) codified as Chapter 2007-234, Florida Laws, which took effect upon becoming a law on October 11, 2007, except for sections 8 through 20 which took effect on January 1, 2008.
4. The legal basis for applying the new PIP Statute to all dates of service after January 1, 2008 is found in various parts of the Statute.
5. Specifically, Section 19 states in its pertinent part: “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.”
6. Also, Section 21(2) states: “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.”
7. In addition, Section 23 states: “This act shall take effect upon becoming a law, except that sections 8 through 20 of this act shall take effect January 1, 2008.
8. Chapter 2007-234, Florida Laws, included the pronouncement by the Florida Legislature on its face that the act was “intended to be remedial and curative in nature”. (Emphasis added.)
9. The changes made to the PIP Statute were procedural in nature and did not affect any substantive rights of the insured under the contract. The value of the policy of insurance, the amount of PIP coverage available to the insured, and the amount of premiums were not affected by the changes and remained the same. Application of the statutory fee schedules set forth in the 2008 PIP statute to the bills at issue does not impose new obligations or impair vested rights of the insured. In many instances, the insured has increased rights under the legislative changes. For example, the insured may not be sued for recovery of unpaid charges by the provider.
10. Until the date the service at issue was actually provided by the Plaintiff provider in this case, the Plaintiff provider had no vested rights regarding the policy of insurance held by the insured. R.A.M of South Florida, Inc. v. WCI Communities, Inc., 869 So. 2d 1210, 1218 (2d DCA 2004) [29 Fla. L. Weekly D761b].
11. The 2008 PIP Statute retains the requirement that charges submitted by the medical providers be reasonable and only gives an option to the insurer to pay those charges at the applicable 200% Medicare Part B Fee Schedule should the insurer choose to do so.
12. Plaintiff’s position is also incorrect because the Insured’s policy specifically contemplates — and more importantly incorporates — amendments to the payment provisions of the PIP statute.
13. The insuring agreement states: “the Company will pay, in accordance with the Florida Motor Vehicle No-Fault Law, as amended, . . .”(Emphasis added.)
14. This language clearly and unambiguously sets forth the express intention of the parties to the policy that any subsequent amendments to the PIP statute were to become part of the controlling document and therefore govern the reimbursements at issue, regardless of when they were enacted. Century Village, Inc. v. Wellington, E, F, K, L, H, J, M, & G, Condominium Association, 361 So. 2d 128, 133 (Fla. 1978).
WHEREFORE Defendant’s Motion for Summary Judgment is hereby GRANTED and Plaintiff’s Motion is DENIED, as payments were properly made pursuant to the 2008 PIP Statute. Final Judgment is hereby awarded to Defendant. Plaintiff shall take nothing by this action and Defendant shall go hence without day.
CERTIFIED QUESTION
The Court, having considered Defendant’s Motion for Certification to the Fifth District Court of Appeal, further FINDS, ORDERS AND ADJUDGES as follows:
15. The Court finds that the issue presented by this case should be certified to the Fifth District Court of Appeal to prevent inconsistent results among the State’s 67 Counties and 20 Judicial Circuits. This issue is capable of great repetition in County Courts throughout the State of Florida and, without controlling precedent from a District Court, will be subject to inconsistent results. Since PIP disputes generally concern coverage amounts of less than $10,000, primary jurisdiction for these cases rests with the County Courts, and appellate jurisdiction with the Circuit Courts. Thus, the normal appellate process cannot lead to a decision which will govern the entire state.
16. Furthermore, this Defendant alone is currently litigating this issue in hundreds of lawsuits throughout several different counties in the State. Given the Florida department of Highway Safety and Motor Vehicles’ estimates that approximately 250,000 auto accidents involving personal injuries occur annually in Florida, and given the mandatory nature of PIP insurance and the number of insurance carriers operating within the State, this issue will likely be considered by every County, and thus appealed to, every Circuit Court in Florida.
17. In addition, the dispute concerns a January 1, 2008 change to the PIP law. Since PIP claims are subject to a five (5) year statute of limitations, and since that limitations period does not begin to run until the date of the actual “breach” of the contract occurs,1 claims of this nature may continue to arise until the year 2013 or, given the right set of circumstances with a particular insured’s accident date and treatment plan, beyond that date.
18. For those reasons, the Court believes that a District Court decision will not only ensure uniformity in this disputed area of law for all pending and future cases, but will also serve to avoid the needless waste of judicial resources for County and Circuit Courts throughout the State, as well as the resources of Florida’s PIP insurers and countless known and presently unknown insured individuals.
19. Finally, this issue has great Constitutional significance. The enacting legislation indicates that the changes to the payment guidelines were to become effective on January 1, 2008, and this Court has determined that those guidelines apply to all treatments occurring subsequent to January 1, 2008. This Court finds the changes to be remedial, procedural and curative in nature and does not impair any of the insured’s substantive rights. The Plaintiff argues that since the policy of insurance became effective prior to January 1, 2008, to apply them retroactively would unconstitutionally alter substantive rights. Therefore, the Court believes that the District Court’s guidance is needed to address that issue of Constitutional significance.
20. For the foregoing reasons, this Court certifies the following questions to the Fifth District Court of Appeal:
WHETHER THE LEGISLATURE’S JANUARY 1, 2008 REENACTMENT/REVISION TO THE FLORIDA NO-FAULT LAW, WHICH INCORPORATES THE MEDICARE FEE SCHEDULE, APPLIES TO ALL DATES OF TREATMENT RENDERED SUBSEQUENT TO JANUARY 1, 2008, WHEN THE LOSS OCCURRED PRIOR TO JANUARY 1, 2008, BUT THE LEGISLATURE PRONOUNCED THAT THE ACT IS INTENDED TO BE REMEDIAL AND CURATIVE IN NATURE.
__________________
1State Farm Mut. Auto Ins. Co. v. Lee, 678 So. 2d 818 (Fla. 1996) [21 Fla. L. Weekly S335a].
__________________
STIPULATED ORDER ON DEFENDANT’S MOTION TO DETERMINE ENTITLEMENT AND TO TAX ATTORNEY’S FEES AND COSTS
This cause having come before the Court upon The Defendant, GEICO GENERAL INSURANCE COMPANY’S Motion to Determine Entitlement and to Tax Attorney’s Fees and Costs, the Court having-reviewed the file and being otherwise fully advised,
THE COURT HEREBY FINDS, ORDERS AND ADJUDGES:
1. On or about August 18, 2008, Plaintiff, APOPKA WELLNESS CENTER, INC., (as assignee of Cheri Hohmeister), filed its Complaint against GEICO GENERAL INSURANCE COMPANY for breach of contract, alleging the Defendant failed to pay the proper amount of Personal Injury Protections benefits to the Plaintiff for medical care provided to Cheri Hohmeister.
2. Defendant GEICO GENERAL INSURANCE COMPANY, served a Proposal for Settlement for $125.00 on Plaintiff, APOPKA WELLNESS CENTER, INC., (as assignee of Cheri Hohmeister), pursuant to Florida Rule of Civil Procedure 1.442 on December 30, 2009. Plaintiff did not accept this Proposal for Settlement.
3. On April 9, 2010, This Court entered Final Judgment in this matter in favor of Defendant, GEICO GENERAL INSURANCE COMPANY, finding that no further benefits were owing because the Defendant paid Plaintiff’s bills properly in accordance with the Medicare Fee Schedule, as set forth in Florida Statutes §627.736(5)(a)(2)(f) (2008).
4. Plaintiff, APOPKA WELLNESS CENTER, INC., (as assignee of Cheri Hohmeister), failed to recover damages in this matter that exceed 75% of Defendant’s Proposal for Settlement.
5. The Defendant timely filed its Motion to Determine Entitlement and to Tax Fees and Costs on May 10, 2010.
6. Accordingly, Defendant is entitled to reasonable attorney’s fees and costs pursuant to Fla. R. Civ. P. 1.442 and Florida Statutes §768.79, the amount of same to be determined at a later date.
