17 Fla. L. Weekly Supp. 469b
Online Reference: FLWSUPP 1706CAZE
Insurance — Personal injury protection — Coverage — Reduced fee schedule in 2008 PIP statute cannot be applied to payment of benefits under policy issued in 2007, prior to effective date of statute
COUNTY LINE CHIROPRACTIC CENTER, INC., a Florida Corporation (assignee of Cazeau, Stephanie), Plaintiff, v. MGA INSURANCE COMPANY, INC., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 09-219 SP 23 (4). March 17, 2010. Eric Hendon, Judge. Counsel: Russel Lazega, The Law Office of Russel Lazega, P.A., for Plaintiff. Felipe E. Diez, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE came before the Court for hearing on February 22, 2010 on Plaintiff’s Motion for Partial Summary Judgment (on the issue of whether Defendant improperly and retroactively applied the 2008 P.I.P. fee schedule to a claim made under a 2007 policy). The Court, having reviewed the motion and entire Court file; relevant legal authorities; heard argument, and been sufficiently advised in the premises, finds as follows:
Background: This is a P.I.P. case. Stephanie Cazeau received medical treatment from Plaintiff commencing February 1, 2008 for injuries from an automobile accident on January 27, 2008. The applicable policy was in effect from September 28, 2007 through March 28, 2008. Defendant has asserted as a defense to payment that it properly paid Plaintiff’s claim according to the fee limitations set forth in F.S. s. 627.736 (“2008 fee schedule”). Plaintiff moves for partial summary judgment as to this defense alleging that the policy in question was issued in 2007 (prior to the effective date of the 2008 fee schedule) and therefore the 2008 PIP fee schedule may not be applied.
Legal Conclusions: This Court agrees with the Plaintiff and bases its ruling on the recent decision of the Florida Supreme Court in Louis R. Menendez, Jr., Et Al. v. Progressive Express Ins. Co. Inc., (Florida Supreme Court, Case No. SC08-789, February 4, 2010), which held that the presuit notice provision of the P.I.P. statute (section 627.736(11), Florida Statutes (2001)), could not be applied retroactively to insurance policies issued prior to the effective date of the statute because it, “as a whole, is a substantive statute.”
The Menendez Court found as follows:
In our analysis, we look at the date the insurance policy was issued and not the date that the suit was filed or the accident occurred, because “the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.”
Louis R. Menendez, Jr., Et Al. v. Progressive Express Ins. Co., Inc., (Florida Supreme Court, Case No. SC08-789, February 4, 2010) citing Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996); see also Lumbermens Mut. Cas. Co. v. Ceballos, 440 So. 2d 612, 613 (Fla. 3d DCA 1983) (holding that a liability policy is governed by the law in effect at the time the policy is issued, not the law in effect at the time a claim arises); Hausler v. State Farm Mut. Auto. Ins. Co., 374 So. 2d 1037, 1038 (Fla. 2d DCA 1979) (holding that the date of the accident does not determine the law that is applicable to a dispute).
While this court is always leary to rule contrary to a stated legislative intent, the Supreme Court has plainly set constitutional limits on when a court may apply a statute retroactively. Specifically, the Court has stated that
“Even where the Legislature has expressly stated that a statute will have retroactive application, this Court will reject such an application if the statute impairs a vested right, creates a new obligation, or imposes a new penalty.”
Menendez, (Fla., Case No. SC08-789, February 4, 2010) citing State Farm Mut. Auto Ins. Co. v. Laforet, 658 So. 2d 55, 61 (Fla. 1995).
In the instant case, the Court finds that the rights under the policy of insurance at issue are substantive and that these rights vested at the time Ms. Cazeau purchased the policy on September 28, 2007 as the policy that Ms. Cazeau was issued “had a ‘present fixed right of future enjoyment’ of a certain level of benefits which is diminished by the statutory amendment.” Glenn Corkins, D.C. PH.D., P.A. d/b/a Advanced Spine Center of the Palm Beaches (Yamileth Rodriguez) v. GEICO Indemnity Co., Case No.: 08-15105 (Broward County Court, Judge Robert W. Lee, 2009). Moreover, the court finds relevant that there appears to be little or no notice from the insurer to the policyholder that PIP benefits would be paid at a lower rate under the new 2008 P.I.P. changes.
Accordingly, the Court grants Plaintiff’s Motion for Summary Judgment as to Defendant’s affirmative defense of payment per fee schedule and finds the 2008 fee schedule inapplicable in this case.
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Partial Summary Judgment is GRANTED.
