17 Fla. L. Weekly Supp. 197a
Online Reference: FLWSUPP 1703JOHN
Insurance — Personal injury protection — Coverage — Version of PIP statute in effect at time of treatment, which provides for payment of 80% of 200% of Medicare Part B fee schedule, rather than version in effect at time PIP policy was executed, which provided for payment of 80% of reasonable charges, is applicable where legislature pronounced statute to be remedial and curative, changes are procedural in nature and do not affect substantive rights, medical provider/assignee had no vested rights regarding policy until 2008 date of service, and 2008 statute retains requirement that charges be reasonable and only gives option to pay charges pursuant to Medicare fee schedule — Question certified
FLORIDA MEDICAL & INJURY CENTER, INC., as assignee of RENITA JOHNSON, Plaintiff, vs. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 08-SC-10201. December 17, 2009. Antoinette Plogstedt, Judge. Counsel: Dale L. Parker. Aaryn Fuller.
AMENDED FINAL JUDGMENT FOR DEFENDANT
THIS CAUSE having come before the Court on Defendant’s and Plaintiff’s Motions for Summary Judgment on October 15, 2009, 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. 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 on the date of loss at issue.
B. The date of loss at issue was September 24, 2007.
C. The date of service at issue was January 11, 2008.
D. The Defendant paid all of Plaintiff’s bills at issue timely based on 200% of the applicable Medicare Part B fee schedule pursuant to the 2008 PIP Statute.
2. The Small Claims Rules apply in this case and no answer or affirmative defenses are required. The Defendant chose to file an Answer that denies paragraphs in Plaintiff’s Complaint alleging that the charges were reasonable. Accordingly, the Court finds that Defendant’s Answer sufficiently raised the issue.
3. The Court disagrees with Plaintiff’s interpretation of Defendant’s Responses to Plaintiff’s Request for Admissions. Defendant properly preserved the issue by denying Plaintiff’s request number 13, which asks Defendant to admit that the charges are reasonable,
4. 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.
5. 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.
6. 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.”
7. 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.”
8. 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.
9. 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).
10. 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. The 2008 PIP Statute did not impose any new obligations to 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.
11. 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).
12. 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.
WHEREFORE Defendant’s Motion for Summary Judgment is hereby GRANTED as payments were properly made pursuant to the 2008 PIP Statute. Plaintiff’s Motion for Summary Judgment is DENIED. Plaintiff shall take nothing by this action and Defendant shall go hence without day. Final Judgment is hereby awarded to Defendant.
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:
13. 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.
14. 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.
15. 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.
16. 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.
17. 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 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.
18. For the foregoing reasons, this Court certifies the following question 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.
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1State Farm Mut. Auto Ins. Co. v. Lee, 678 So. 2d 818 (Fla. 1996).
