17 Fla. L. Weekly Supp. 591a
Online Reference: FLWSUPP 1707FRAY
Insurance — Personal injury protection — Coverage — 2007 PIP statute in effect at time policy was executed, which provides for payment of 80% of reasonable charges, rather than 2008 PIP statute in effect at time of treatment, which provides for payment of 80% of 200% of Medicare Part B fee schedule, is applicable where statutory change impairs vested rights
ISABEL FRAYLE, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 08-6274 SP 26 (03). Civil Division. April 27, 2010. Patricia Marino-Pedraza, Judge. Counsel: Zachary A. Hicks, Samole, Berger & Hicks, P.A., for Plaintiff. Angela Williams, Office of the General Counsel, Miami, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on the 13th day of April, 2010 on Plaintiff’s Motion for Summary Judgment. After hearing argument of counsel and upon review of the file, affidavits and case law it is:
ORDERED AND ADJUDGED as follows:
1. The policy at issue in this case was effective from August 2007 through March 2008. This is not a GAP period policy.
2. On or about December 25, 2007, the claimant was involved in an automobile accident in which she received medical services. The medical bills at issue in this case are for dates of service from January 2008 through June 2008.
3. The Defendant issued payment pursuant to their interpretation of the 2008 PIP fee schedule in the amount of 80% of the maximum allowable amount of 200% of the Medicare Part B Participating fee schedule for the area in which services were rendered pursuant to Florida Statute 627.736(5) (a) (2).
4. Plaintiff filed their Motion for Summary Judgment as to the issue of RRN. In support of its motion, Plaintiff has filed the affidavits of Dr. Bruce Kohrman, MD and Dr Jorge Cabrerea, MD alleging all services were RRN. Additionally, the Plaintiff asserts that the 2007 PIP Statute applies, which requires the Defendant to pay for all services rendered which were reasonable, related and medically necessary, and not the subsequently enacted 2008 PIP Statute. This Court agrees.
5. The Insured Plaintiff’s rights vested at the time that the insurance policy was purchased. Although the 2008 PIP Statute is clear and unambiguous in its intent to be applied retroactively, it is well settled law that the Statute in effect at the time an insurance contract is executed governs substantial issues arising in connection with the contract. Med Plus Center, Inc. v. Geico General Insurance Company, 17 Fla. L. Weekly Supp. 296a, citing to Hassen v. State Farm Mutual Auto. Ins., 674 So. 2d 106 (Fla. 1996); Lumberman’s Mutual Casualty Co. v. Ceballos, 440 So. 2d 612 (Fla. 3rd DCA 1983).
6. The Court further relies on the recent holding in Menendez v. Progressive Express Insurance Co. Inc., ___So. 3d ___, 2010 WL 1609785 (Fla. 2010) [35 Fla. L. Weekly S222b], in which the Court held that despite the Legislature intent that a statute shall have retroactive application, the Court will reject such application if the Statute impairs a vested right, creates a new obligation, or imposes a new penalty. In this case, Ms. Frayle’s rights were vested in 2007 at the time that the contract was executed and payment pursuant to the 2008 PIP Fee schedule impaired her right.
7. Therefore, the Court grants Plaintiff’s Motion for Summary Judgment as to the application of the 2007 Statute.
8. The Defendant has filed the affidavit of Dr. Sulim Krimshtein, MD in opposition to the Plaintiff’s Motion. The Court grants Summary Judgment as to RRN in favor of the Plaintiff as to the services not contested by Dr. Krimshtein. The Court does find that there is a genuine issue as to material fact as to RRN for the services disputed in the affidavit. Therefore, the Plaintiff’s Motion for Summary Judgment is granted and denied in part.
