17 Fla. L. Weekly Supp. 226a
Online Reference: FLWSUPP 1703DORS
Insurance — Personal injury protection — Coverage — Version of PIP statute in effect at time PIP policy was executed, which provided for payment of 80% of reasonable charges, rather than version in effect at time of treatment, which provides for payment of 80% of 200% of Medicare fee schedule, is applicable where statutory change is substantive, and statement in policy that insurer “will pay in accordance with Florida Motor Vehicle No-Fault Law, as amended” does not clearly and unambiguously provide that insured has expressly consented to future statutory changes
DORSAL REHAB, INC F/K/A UNITED DIAGNOSTIC AND REHAB ASSOCIATES, a Florida Corporation (assignee of Exantus, Rony 2) Plaintiff, v. GEICO INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-17308 COCE 53. December 22, 2009. Robert W. Lee, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, North Miami. Dale Parker, Banker, Lopez, Gassler, St. Petersburg.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE came before the Court at hearing on December 8, 2009 on Plaintiff’s for 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) and the Court, having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background: This is a P.I.P. case. Rony Exantus obtained medical treatment and services from the Plaintiff from January 4, 2008 through February 1, 2008. The date of the accident was November 15, 2007. The applicable policy commenced July 30, 2007. Defendant reduced the allowable amount for the medical treatment and services to 200% of the 2008 participating physician’s fee schedule under Medicare Part B pursuant to F.S. s. 627.736 (“2008 fee schedule”). Defendant maintains that the 2008 fee schedule applies. Plaintiff responds that the 2007 P.I.P. statute applies because the insurance contract was entered into in 2007, 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).
Conclusions of law: The Court bases its current decision off of its previous ruling in Glenn Corkins, D. C., PH.D., P.A. (Yamileth Rodriguez) v. GEICO Indemnity Company, (Case No.: 08-15105 COCE 53), which concerned this very same issue. 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 Lumbermen Mutual Casualty Company v. Ceballos, 440 So.2d 612 (Fla. 3d 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.
In order to apply the statutory amendment to the insurance policy at issue, the Court must first determine whether the statutory amendment is one that affects substantive rights. If so, the amendment can be applied to the insurance policy only if the insured policy holder expressly consented to the application of the amendment.
In Florida, “[a] ny legislative action which diminishes the value of a contract is repugnant to and inhibited by the [Florida] Constitution.” In re Advisory Opinion, 509 So.2d 292 314 (Fla. 1987) (emphasis added). The test to determine whether a substantive right is affected is whether the amended “statute impairs vested rights, creates new obligations, or imposes new penalties.” State Farm Mutual Automobile Ins. Co. v. Laforet, 658 So.2d 55, 61 (Fla. 1995); Progressive Express Ins. Co. v. Menendez, 979 So. 2d 324, 331 (Fla. 3d DCA 2008). Stated another way, “[a]n impairment occurs [. . .] when a contract is made worse or is diminished in quantity, value, excellence or strength. ” Lawnwood Medical Center, Inc. v. Seeger, 959 So.2d 1222, 1224 (Fla. 1st DCA 2007). A substantive right is vested if it is an “immediate right of present enjoyment, or a present fixed right of future enjoyment.” School Board of Miami-Dade County v. Carralero, 992 So.2d 353, 355 (Fla. 3d DCA 2008) (emphasis added).
If the statute does not “alter contractual or vested rights but relate[s] only to remedies of procedure,” then the statute may be applied retroactively. See Menendez, 979 So.2d 324, 330 (Fla. 3d DCA 2008).
In this case, the policy holder received a policy and paid a premium for the insurance policy that expressly provided how medical benefits would be paid over the course of the next year. After the policy was issued, but before the policy expired, the Florida Legislature enacted a statutory amendment which is more advantageous to the insurer and results directly in the payment of a lesser amount for specific medical services. The Defendant’s argument that benefits continue to be capped at $10,000.00 is of no import. This argument assumes incorrectly that each automobile accident will result in treatment equal to or exceeding $10,000.00. This is clearly not the case. Because the insured at the time the policy was issued then had a “present fixed right of future enjoyment” of a certain level of benefits, which is diminished by the statutory amendment, the new law can only apply to the policy if the insured consented to the retroactive application. See Carralero, 992 So. 2d at 355; Lawnwood Medical, 959 So.2d at 1224.
Therefore, the Court next considers whether the insured consented to the retroactive application. In order to retroactively apply a change to a statute affecting substantive rights, a party has to expressly consent to the application. See Pomponio v. Claridge of Pompano Condominium, Inc., 378 So.2d 774, 782 (Fla. 1979); Kaufman v. Shere, 347 So.2d 627, 628 (Fla. 3d DCA 1977). Courts in Florida have upheld the retroactive application of a statutory amendment when the subject contract “clearly and unambiguously incorporates” future amendments to the statute. Kosow v. Condominium Ass’n of Lakeside Village, Inc., 512 So.2d 349, 350-51 (Fla. 4th DCA 1987). In Kosow, the contract noted that it “incorporated by reference the Condominium Act [. . .] as the same may be amended from time to time.” Id at 350. The key is whether the contract clearly evidences express consent to incorporate a specific statute and its future amendment into the contract. See Angora Enterprises, Inc. v. Cole, 439 So.2d 832, 835 (Fla. 1983). In Cole, similar to Kosow, the contract incorporated a statute “as the same may be amended from time to time.” Id. at 834. See also Halpern v. Retirement Builders, Inc., 507 So.2d 622, 623-24 (Fla. 4th DCA 1987) (incorporating provisions of a statute “as the same may be amended from time to time”).
In the instant case, the parties have stipulated that the policy merely states that the insurer “will pay in accordance with the Florida Motor Vehicle No-Fault Law, as amended.” The question for the Court is whether this language is sufficient on its own to demonstrate “clearly and unambiguously” that the policy holder has “expressly consented” to the incorporation of future amendments to the statute. See Kosow, 512 So.2d at 351; Cole, 439 So.2d at 835. The Florida Motor Vehicle No-Fault law was originally adopted in 1971. Ch. 71-252, sl, Fla. Laws. Since then, it has been amended numerous times. Therefore, at the time the policy in the instant case was issued, the No-Fault Law had already been amended up to that point. The Court agrees with Plaintiff’s argument that the mere language “as amended” more likely refers to the No-Fault Law as it had been amended to that point. In any event, the meager language in the policy does not “clearly and unambiguously” provide that the policy holder has “expressly consented” to future amendments. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Partial Summary Judgment is GRANTED.
