17 Fla. L. Weekly Supp. 823a

Online Reference: FLWSUPP 1709ECHA

Insurance — Personal injury protection — Coverage — 2008 version of PIP statute, which incorporates Medicare fee schedule and states that all PIP policies in effect on or after effective date of statute are deemed to incorporate its provisions, does not apply to treatment rendered subsequent to effective date of statute when loss occurred and policy expired prior to effective date of statute — Question certified

FLORIDA MEDICAL & INJURY CENTER, INC., as assignee of JACINTO ECHARTE, Plaintiff, vs. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 08 SC 9466. May 28, 2010. John E. Jordan, Judge. Counsel: Scott A. Hutchens, Banker, Lopez & Gassler, P.A. Aaryn Fuller, Bogin, Munns & Munns, P.A., Orlando.

FINAL SUMMARY JUDGMENT FOR PLAINTIFF

THIS CAUSE having come before the Court on the Defendant’s Motion for Summary Final Judgment and Plaintiff’s Motion for Final Summary Judgment and the Court having heard arguments of Counsel, and otherwise being fully advised in the premises hereby, FINDS, ORDERS AND ADJUDGES as follows:

1. It is undisputed this case arises out of contact for personal injury protection (PIP) insurance, which was in effect from January 4, 2006 to July 4, 2006.

2. The subject accident occurred on May 18, 2006 — while the policy was in effect.

3. The insured sought and received medical treatment subsequent to the May 18, 2006 automobile accident. Geico paid 80% of the Plaintiff’s charges from June 27, 2006 to December 31, 2007. The insured sought treatment from the Plaintiff on January 14, 2008. Instead of paying 80%, the Defendant, Geico, applied the fee schedule set out in the 2008 version of Florida Statute 627.736.

4. The Plaintiff is seeking the remaining balance of $38.24. The amount due under the pre 2008 changes to the PIP Statute.

5. Florida Statute 627.7407(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.” Since the policy period at issue expired on July 4, 2006, it is clear that it was not in effect on January 1, 2008. The 2008 amendment reviving the previously repealed Florida Motor Vehicle No-Fault Law does not apply to insurance policy periods that expired before January 1, 2008.

Therefore, it is ORDERED AND ADJUDGED as follows:

1. Plaintiff’s Motion for Summary Judgment is GRANTED as a matter of law.

2. Defendant’s Motion for Summary Judgment is DENIED.

CERTIFIED QUESTION

The Court having considered the Defendant’s Motion for Certification to the 5th District Court of Appeals, further FIND, ORDERS AND ADJUGES as follows:

3. 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.

4. 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.

5. 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.

6. 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. Therefore, the Court believes that the District Court’s guidance is needed to address that issue of Constitutional significance.

7. 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 AND INSURANCE POLICY EXPIRED PRIOR TO JANUARY 1, 2008, BUT THE LEGISLATURE PRONOUNCED THAT THE ACT IS INTENDED TO BE REMEDIAL AND CURATIVE IN NATURE.

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¹State Farm Mut. Auto Ins. Co. v. Lee, 678 So. 2d 818 (Fla. 1996) [21 Fla. L. Weekly S335a].