17 Fla. L. Weekly Supp. 296a
Online Reference: FLWSUPP 1704SUAR
Insurance — Personal injury protection — Coverage — 2007 PIP statute, which provides for payment of 80% of reasonable charges, rather than 2008 PIP statute in effect at time of treatment, which provides for reduced payment, is applicable where statutory change is substantive and impairs vested rights
MED PLUS CENTERS, INC., a Florida Corporation (assignee of Suarez, Nelson), Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-17437 COCE 51. February 1, 2010. Martin R. Dishowitz, Judge. Counsel: Russel Lazega. Richard M. Nelson.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court for hearing on February 1, 2010 on Plaintiff’s Motion for Summary Judgment (on the issue of pricing, specifically, whether the 2008 P.I.P. fee schedule is properly applied 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. Nelson Suarez obtained medical treatment from Plaintiff commencing on June 4, 2007. The date of the accident was May 22, 2007. The applicable policy came into effect on January 10, 2007. Plaintiff moves for partial summary judgment as to pricing, asserting that payment under the policy issue must be made in accordance with the 2007 P.I.P. statute, which was in effect at the time the policy was entered. Plaintiff maintains that the language of the 2007 P.I.P. statute is controlling and that the insurer must tender payment of P.I.P. benefits in accordance with the 2007 P.I.P. statute, as to do otherwise would affect the provider’s substantive rights to payment (namely, the contracted payment amount).
Legal Conclusions: The Court bases its current decision off of its previous ruling in Anthony Michael Crothers, P.A. d/b/a Indian Trace Chiropractic Center (a/a/o Monica Ayala) v. Mercury Insurance Company of Florida, Case No.: 09-001887 COCE 51 (Broward County Court, Judge Martin R. Dishowitz, January 14, 2010), which concerned this very same issue.
The Court finds that while the 2008 P.I.P. 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 substantive issues arising in connection with that contract. Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106 (Fla. 1996); see also Lumbermen’s Mutual Casualty Co. v. Ceballos, 440 So. 2d 612 (Fla. 3rd DCA 1983), and the legislature may not retroactively impair vested substantive contract rights without running afoul of Article I, Section 10 of the Florida Constitution. Id.
Therefore, in order to apply the statutory amendment to the insurance policy at issue, the Court must determine whether the application of the statutory amendment impairs the substantive, vested rights of the insured. The Court, in applying this three-pronged analysis, finds as follows:Whether The Rights Under the Policy are Substantive
The amendments to the 2008 statute do not merely alter the process of applying and enforcing the parties’ rights and liabilities; they substantially re-define the actual rights and liabilities. See Alamo Rent-A-Car Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994).
Accordingly, the Court finds that the rights affected by the application of the 2008 P.I.P. statute, which is how much is paid under the insurance contract, are clearly substantive.Whether The Rights Under the Policy are Vested
“A vested right has been defined as ‘an immediate, fixed right of present or future enjoyment’ and also as ‘an immediate right of present enjoyment, or a present, fixed right of future enjoyment.” City of Sanford v. McClelland, 163 So. 513, 514-15 (Fla. 1935); see also Romine; Earnhardt.
The Court finds that the rights under the policy of insurance at issue are substantive and that these rights vested at the time the policy was purchased on January 10, 2007 as the policy that the insured 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).Whether The Application Of The Statutory AmendmentImpairs The Substantive, Vested Rights Underthe Policy of Insurance
The Court agrees with the Plaintiff that the application of the statutory amendment diminishes the value of the contract as it impairs an insured’s ability to seek quality care as not every physician will accept the reduced payment under the 2008 fee schedule (in other words, the fee limitation reduces the insureds available pool of doctors).
The Court further finds that there is no balancing test when it comes to impairment. If the contract is substantively diminished, there is an impairment. As such, this Court finds that there is a diminution of value to the contract when the 2008 fee schedule is applied to a contract commenced in 2007 that effects the substantive, vested rights under the policy of insurance.
ORDERED AND ADJUDGED the Plaintiff’s Motion for Partial Summary Judgment is GRANTED.
