17 Fla. L. Weekly Supp. 1126a
Online Reference: FLWSUPP 1711HENR
Insurance — Personal injury protection — Coverage — Version of PIP statute in effect at time PIP policy was executed rather than version in effect at time of treatment, which provides for payment of 200% of Medicare and/or workers’ compensation fee schedule, is applicable where statutory change affects substantive rights
POMPANO BEACH CHIROPRACTIC CENTER, INC., (a/a/o Johnny Henry), Plaintiff, vs. GEICO INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO 08-3232 (70). June 3, 2010. Edward H. Merrigan, Jr., Judge. Counsel: Benjamin G. Partlow, Topkin & Egner, P.L., Deerfield Beach. Dale Parker. Julie Terry.
ORDER ON PLAINTIFF’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO COUNT I AND FINAL SUMMARY JUDGMENT AS TO COUNT II AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE, having come before the Court upon Plaintiff’s Cross-Motion for Partial Summary Judgment as to Count I Breach of Contract for Personal Injury Protection Benefits and Final Summary Judgment as to Count II for Declaratory Relief 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 as the parties have filed a joint stipulation of facts.
2. Defendant wrote a policy of insurance to Stephanie Henry, which had a policy period of September 11, 2007 through March 11, 2008.
3. Defendant’s policy of insurance with Stephanie Henry provided for personal injury protection coverage of $10,000.00.
4. Johnny Henry was involved in a motor vehicle accident on November 28, 2007, in which he sustained injuries.
5. Johnny Henry was afforded coverage for personal injury protection benefits under Defendant’s policy of insurance with Stephanie Henry, and said policy was in full force and effect on November 28, 2007.
6. As a result of Johnny Henry’s accident on November 28, 2007, he went to treat with the Plaintiff.
7. Johnny Henry assigned his right to receive insurance proceeds under Defendant’s policy of insurance with Stephanie Henry to Plaintiff.
8. Plaintiff treated Johnny Henry from December 3, 2007 through March 4, 2008.
9. Defendant reimbursed Plaintiff within thirty days of the receipt of the bills at issue.
10. For dates of service December 3, 2007 through December 28, 2007, Defendant reimbursed Plaintiff in full at eighty percent of the amount charged.
11. For dates of service January 3, 2008 through March 4, 2008, 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.
12. The only issue to be decided in the instant cause is whether the January 1, 2008 reenactment/revision to the Florida No-Fault Law applies to all dates of treatment occurring on or after January 1, 2008 regardless of the policy inception date, or whether it applies only to those insurance policies which were written on or after January 1, 2008,
II. ISSUES OF LAW
13. This Court notes that the statute which is in effect at the time the insurance policy becomes effective governs the substantive issues arising under that contract. Menendez v. Progressive 2010 WL 375080 (Fla. 2010).
14. Further, Courts may not apply statutory amendments retroactively that modify or impair established substantive rights under a contract. Id.
15. This Court finds that applying the fee schedule contained in the 2008 version of section 627.736 to the subject policy which was written prior to the effective date of the amendment affects substantive rights and thus may not be applied retroactively. Id.
16. 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.
17. Therefore, the Plaintiff’s motion is granted and the Defendant’s motion is denied.
