17 Fla. L. Weekly Supp. 596a
Online Reference: FLWSUPP 1707BURG
Insurance — Personal injury protection — Coverage — Policy issued during statutory gap period — Where PIP policy was executed during statutory gap period when there was no PIP statute, policy language requiring that insurer pay 80% of medical expenses controls reimbursement — 2008 amendment to PIP statute to provide for payment of 200% of Medicare and/or workers’ compensation fee schedules cannot be applied retroactively to policy executed prior to effective date of amendment where statutory change is substantive, and policy does not clearly and unambiguously provide that insured has expressly consented to incorporate future statutory changes into policy
NORTHWEST CENTER FOR INTEGRATIVE MEDICINE & REHABILITATION, INC. (a/a/o April Burger), Plaintiff, vs. GEICO CASUALTY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 08017925 (56). April 22, 2010. Linda R. Pratt, Judge. Counsel: Benjamin G. Partlow, Topkin & Egner, P.L., Deerfield Beach. Dale Parker. Julie Terry.
ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT’SMOTION FOR SUMMARY JUDGMENT
THIS CAUSE, having come before the Court upon Plaintiff’s Motion for Partial Summary Judgment Breach of Contract for Personal Injury Protection Benefits and Defendant’s Motion for Summary Judgment and the Court having considered same, and having reviewed the file and being otherwise duly advised in the premises, it is thereupon:
ORDERED AND ADJUDGED that Plaintiff’s Motion is GRANTED and Defendant’s Motion is DENIED as follows:
I. FINDINGS OF FACT
1. The facts are not in dispute since the parties have filed a joint stipulation of facts.
2. Defendant wrote a policy of insurance to Claudia Schmidt, which covered April Burger for personal injury protection benefits and had a policy period of December 19, 2007 through June 19, 2008.
3. Defendant’s policy of insurance with Claudia Schmidt provided for personal injury protection coverage of $10,000.00.
4. April Burger was involved in a motor vehicle accident on February 26, 2008, in which she sustained injuries.
5. April Burger was afforded coverage for personal injury protection benefits under Defendant’s policy of insurance with Claudia Schmidt, and said policy was in full force and effect on February 26, 2008.
6. As a result of April Burger’s accident on February 26, 2008, she went to treat with the Plaintiff.
7. April Burger assigned her right to receive insurance proceeds under Defendants policy of insurance with Claudia Schmidt to Plaintiff.
8. Plaintiff treated April Burger from February 25, 2008 through June 10, 2008.
9. Defendant reimbursed Plaintiff within thirty days of the receipt of the bills at issue.
10. For all dates of service Defendant reimbursed Plaintiff according to the 2008 version of section 627.736 or 200% of the Medicare and/or Worker’s Compensation fee schedule rates.
11. The only issues to be decided in the instant cause is whether the 2008 version of section 627.736 which provides for a fee scheduled amount to be reimbursed applies to the instant claim where the insurance policy that affords coverage to the insured was effective in 2007, prior to the effective date of the 2008 version of section 627.736, and whether Defendant may lawfully reimburse Plaintiff according to the 2008 version of section 627.736.
II. ISSUES OF LAW
12. The Court finds that the general rule is that the statute in effect at the time an insurance policy is executed governs substantive issues arising from the contract. Anthony Michael Crothers, P.A. d/b/a Indian Trace Chiro. Ctr. (a/a/o Monica Ayala) v. Mercury Ins. Co. of Fla., 17 Fla. L. Weekly Supp. 221b (Cty. Ct. Broward Cty. Jan. 2010)(citing Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106 (Fla. 1996); Lumbermen’s Mut. Cas. Co. v. Ceballos, 440 So. 2d 612 (Fla. 3rd DCA 1983).
13. Since there was no mandatory personal injury protection law at the time that the insurance contract was executed, the language of the policy controls. Id.
14. The applicable insurance policy states that Geico will pay “in accordance with the Florida Motor Vehicle No-Fault Law, as amended,” for “80% of medical expenses” among other things.
15. Medical expenses are defined as “reasonable expenses for necessary medical . . .services. . .”
16. Defendant makes two arguments: The first is that the 2008 amendment to the statute is not substantive in nature and may be applied retroactively to the policy even though the policy was executed prior to the effective date of the amendment. The second is that the language of the policy evidences an intent that the future amendment in 2008 would be incorporated into the policy because the policy was written after the amendment had already been signed into law and the parties were on notice of the amendment.
17. As to Defendant’s first argument this Court follows its previous ruling and finds that the 2008 amendment to section 627.736 is substantive in nature and may not be applied retroactively to a policy of insurance executed prior to the effective date of the statutory amendment. OMI of Orange Park, Inc. (a/a/o Catherine Lynn) v. Geico Gen. Ins. Co., 16 Fla. L. Weekly Supp. 971a (Cty. Ct. Broward Cty. Aug. 2009)(following Explorer Ins. Co. v. Physicians Group, LLC, 16 Fla. L. Weekly Supp. 317a (Cty. Ct. Hillsborough Cty. Jan. 2009); Physicians Group, LLC v. GEICO Indemnity Co., 15 Fla. L. Weekly Supp. 1207c (Cty. Ct. Orange Cty. Oct. 2008).
18. As to Defendant’s second argument, this Court follows Judge Lee’s well-reasoned ruling in Glenn Corkins, D.C., PH.D., P.A. d/b/a Advanced Spine Ctr. Of the Palm Beaches (a/a/o Yamileth Rodriguez) v. Geico Indemnity Co. and finds that the specific language in the policy does not demonstrate that the insured “clearly and unambiguously” “expressly consented” to incorporate future amendments to the statute into the insurance policy. 16 Fla. L. Weekly Supp. 1185a (Cty. Ct. Broward Cty. Sept. 2009)(quoting Kosow Condominium Ass’n of Lakeside Village, Inc., 512 So. 2d 349, 350-51 (Fla. 4th DCA 1987).
19. As such, the Defendant may not apply the fee schedule contained in the 2008 amendment to the subject policy and dates of service that were rendered in 2008 because the policy had an effective date prior to the effective date of the amendment and the language of the policy is not sufficient to demonstrate that the insured expressly consented to incorporate future amendments to the statute into the policy.
20. Therefore, the Plaintiff’s motion is granted and the Defendant’s motion is denied.
