17 Fla. L. Weekly Supp. 475c
Online Reference: FLWSUPP 1706WEIN
Insurance — Personal injury protection — Coverage — 2007 PIP statute in effect at time policy was issued, rather than 2008 PIP statute which was in effect at time of treatment and which provides for reduced payment, is applicable where express language of 2008 statute forbids application to policy which had expired prior to effective date of statute, and statutory change is substantive and may not be applied retroactively
BEAVER & KIRSHNER, P.A. d/b/a/ INFINITY MEDICAL AND REHAB (a/a/o Lillian Weiner), Plaintiff, vs. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 502008SC009431XXXXMB RL. March 9, 2010. Paul A. Damico, Judge. Counsel: Benjamin G. Partlow, Topkin & Egner, P.L., Deerfield Beach. Dale Parker. Danniel Madden.
ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO COUNT I AND FINAL SUMMARY JUDGMENT AS TO COUNT II
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 for Declaratory Relief 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 said Motion is hereby GRANTED as follows:
I. FINDINGS OF FACT
1. Defendant wrote a policy of insurance to Lillian Weiner, which had a policy period of June 9, 2007 through December 9, 2007.
2. Defendant’s policy of insurance with Lillian Weiner provided for personal injury protection coverage of $10,000.00.
3. Lillian Weiner was involved in a motor vehicle accident on November 20, 2007, in which she sustained injuries.
4. Lillian Weiner was afforded coverage for personal injury protection benefits under Defendant’s policy of insurance with Lillian Weiner, and said policy was in full force and effect on November 20, 2007.
5. As a result of Lillian Weiner’s accident on November 20, 2007, she went to treat with the Plaintiff
6. Lillian Weiner assigned her right to receive insurance proceeds under Defendant’s policy of insurance with Lillian Weiner to Plaintiff.
7. Plaintiff treated Lillian Weiner from December 4, 2007 through March 10, 2008.
8. Defendant reimbursed Plaintiff within thirty days of the receipt of the bills at issue.
9. For dates of service December 4, 2007 through December 26, 2007, Defendant reimbursed Plaintiff in full at eighty percent of the amount charged.
10. For dates of service January 2, 2008 through March 10, 2008, Defendant reimbursed Plaintiff according to the 2008 version of section 627.736 or 200% of the Medicare and/or Worker’s Compensation fee schedule rates.
11. The only issue to be decided in the instant cause is whether the January 1, 2008 reenactment/revision to the Florida No-Fault Law applies to all dates of treatment occurring on or after January 1, 2008 regardless of the policy inception date, or whether it applies only to those insurance policies which were written on or after January 1, 2008.
II. ISSUES OF LAW
12. This Court finds that Defendant may not apply the 2008 amendment to section 627.736 to the instant claim for two reasons:
13. The express language of section 627.7407 states that the amendment does not apply to policies that were not in effect after January 1, 2008, and the amendment is a substantive change in the statute and may not be applied retroactively to an insurance policy that was written prior to the effective date of the amendment.
A. THE EXPRESS LANGUAGE OF THE STATUTE FOR BIDS APPLICATION OF THE 2008 AMENDMENT TO THE SUBJECT POLICY
14. Section 627.7407, entitled “[a]pplication of the Florida Motor Vehicle No-Fault Law” provides that “[a]ny 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.” Fla. Stat. § 627.7407(2)(2008).
15. By corollary, policies that are not in effect on or after January 1, 2008 do not incorporate the 2008 amendment to section 627.736.
16. The subject insurance policy had an effective period of June 9, 2007 through December 9, 2007, and therefore was not in effect on or after January 1, 2008.
17. By the plain language of the statute, the 2008 amendment to section 627.736 cannot be applied to the subject insurance policy because the policy expired prior to January 1, 2008 and as such Defendant may not apply the fee schedule contained in the amendment.
B. THE 2008 AMENDMENT IS SUBSTANTIVE ANDMAY NOT BE APPLIED RETROACTIVELY
18. Generally the statute in effect at the time an insurance contract is executed governs the substantive issues arising in connection with that contract. Menendez v. Progressive, 2010 WL 375080 (Fla. 2010) [35 Fla. L. Weekly S81a; revised 35 Fla. L. Weekly S222b]; Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996).
19. Substantive statutes are presumed to apply prospectively except when the Legislature expresses in clear intent that it is to apply retroactively. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994).
20. Even if the Legislature shows clear intent that a statute be applied retroactively, the Courts will refuse to do so when that statute “impairs vested rights, creates new obligations, or imposes new penalties.” Basel v. McFarland & Sons, Inc., 815 So. 2d 687, 692 (Fla. 5th DCA 2002)(citing State Farm Mutual Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 61 (Fla. 1995).
21. This Court finds the 2008 amendment to be substantive, and as such may not be applied retroactively to an insurance policy entered into, and expired prior to the effective date of the amendment. Menendez, 2010 WL 375080; Hassen, 674 So. 2d 108; Gupton v. Village Key & Saw Shop, Inc., 656 So. 2d 475, 478 (Fla. 1995); Smiley v. State, 966 So. 2d 330, 335-36 (Fla. 2007).
22. As such, the Defendant may not apply the fee schedule contained in the 2008 amendment to the subject policy because the policy had an effective date prior to the effective date of the amendment.
