17 Fla. L. Weekly Supp. 845a
Online Reference: FLWSUPP 1709EXAN
Insurance — Personal injury protection — Coverage — Version of PIP statute in effect at time policy was executed, rather than version of statute in effect at time of treatment, controls payment of benefits where to do otherwise would affect substantive vested rights under contract, and policy did not incorporate permissive fee schedule available in current statute
MIRAMAR CHIROPRACTIC CENTER, LLC, d/b/a Miramar Medical Center, Inc., a Florida Corporation, (assignee of Exantus, Rony), Plaintiff, v. GEICO INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-17321 COCE 56. June 4, 2010. Linda Pratt, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, P.A., North Miami. Dale L. Parker.
FINAL SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF
THIS CAUSE came before the Court for hearing on March 19, 2010 on Plaintiff’s Motion for Final Summary Judgment and Defendant’s Motion for Final 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 motions; entire Court file; relevant legal authorities; heard argument, and been sufficiently advised in the premises, finds as follows:
Factual Background:This is a P.I.P. case. The following facts have been stipulated to by the parties: 1) Rony Exantus received related, reasonable, and necessary medical treatment from Plaintiff commencing November 21, 2007 through February 1, 2008 for injuries sustained in an automobile accident on November 15, 2007; 2) the effective date of the applicable policy of insurance is August 21, 2007 (policy form number A30FL(2/98) and amendment form CRA233FL (08/00)); and 3) Defendant paid dates of service January 4, 2008 through February 1, 2008 at the 2008 Medicare Part B Fee Schedule. Therefore, the only remaining issue in this case is whether the 2008 P.I.P. statute can be retroactively applied to a claim made under a 2007 policy. The parties have moved for summary judgment as to the issue. Defendant maintains that the 2008 fee schedule applies. Plaintiff maintains that the policy in question was issued in 2007 (prior to the effective date of the 2008 fee schedule) and therefore the 2008 P.I.P. fee schedule may not be applied.
Conclusion:The Court bases its current decision on its prior ruling in Omi Of Orange Park, Inc. v. Geico General Insurance Company, 16 Fla. L. Weekly Supp. 971a (Broward County Court; Judge Linda R. Pratt, 2009) and holds that the fee limitations set forth in the 2008 P.I.P. statute are not controlling on the policy at issue which commenced in 2007 and that 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 substantive vested rights under the contract. See also Progressive Express Ins. Co. v. Menendez, 979 So. 2d 324, 331 (Fla. 3d DCA 2008).
Additionally, even if Defendant was correct that the 2008 amendment to the Fla. Motor Vehicle law should apply to the services rendered in this case, Plaintiff would still be entitled to final summary judgment based upon the recent decision of State Farm Florida Ins. Co. v. Boyd Nichols and Linda Nichols, et al., 34 Fla. L. Weekly D2275b (Fla. 5th DCA 2009) (holding that the mandatory language of a home owner’s policy providing that the “loss will be payable 60 days after we receive your proof of loss” was controlling over the permissive language of the applicable statutory language provided in F.S. s. 627.707(5)(b) which stated that “the insurer may limit payment. . . until the policyholder enters into a contract for the performance of building stabilization or foundation repairs”) (emphasis added).
In the instant case, the policy of insurance did not incorporate the permissive fee schedule available to the insurer in the 2008 amendment to the Fla. Motor Vehicle law, therefore, based upon Nichols, this Court finds that the mandatory language of the policy of insurance (which states that the Defendant “will pay in accordance with the Florida Motor Vehicle No-Fault Law, as amended, to or for the benefit of the injured person 80% of medical expenses”)would control over the permissive language of F.S. s. 627.736(5)(a)(2)(f) (which provides that “the insurer may limit reimbursement to 80 percent of the following schedule of maximum charges: For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B”).
Accordingly, it is hereby ORDERED AND ADJUDGED:
That Defendant’s Motion for Final Summary Judgment is denied and that Final Summary Judgment is entered in favor of the Plaintiff. The Plaintiff, MIRAMAR CHIROPRACTIC CENTER, LLC D/B/A MIRAMAR MEDICAL CENTER, INC., 6890 Miramar Parkway, shall recover from the Defendant, GEICO INDEMNITY COMPANY, 3535 West Pipkin Rd., Lakeland, FL 33811, the principal sum of $1,012.85 together with interest at the rate of 11% pursuant to F.S. s. 627.736(4) in the amount of $246.66.
This judgment shall bear interest at the rate of 6% per year from date of entry until satisfied. The draft shall be made payable to MIRAMAR CHIROPRACTIC CENTER, LLC D/B/A MIRAMAR MEDICAL CENTER, INC., and delivered to Russel Lazega, Esq. at the Law Office of Russel Lazega, 13499 Biscayne Blvd., Suite 107, North Miami, Florida 33181 or current business address at the time of payment.
This Court reserves jurisdiction to award attorney’s fees and costs in favor of the Plaintiff, and to enter a Final Judgment for Attorney’s Fees and Costs accordingly.
Let execution issue for the above sums.
