17 Fla. L. Weekly Supp. 592b

Online Reference: FLWSUPP 1707SAN2

Insurance — Personal injury protection — Coverage — Version of PIP statute in effect at time PIP policy was executed, which provided for payment of 80% of reasonable charges, rather than version 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 is substantive, and statement in policy that insurer “will pay in accordance with Florida Motor Vehicle No-Fault Law, as amended” does not clearly and unambiguously provide that insured has expressly consented to future statutory changes — Question certified

RONALD J. TRAPANA, M.D., P.A., a Florida Corporation, (assignee of Santoro, Anthony) Plaintiff, v. GEICO INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-008902 COCE (53). April 20, 2010. Robert W. Lee, Judge. Counsel: J.D. Underwood, Law Office of Russel Lazega, P.A., North Miami. Jeffrey B. Tutan, Roig, Kasperovich & Tutan, P.A., Deerfield Beach, for Defendant.

FINAL SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF, and CERTIFICATION TO THEFOURTH DISTRICT COURT OF APPEAL ASA QUESTION AFFECTING THE UNIFORM ADMINISTRATION OF JUSTICE, PURSUANT TOFLA. STAT. §34.017(1)(b), RULES 9.030(b)(4) and9.160, FLA. R. APP. P.¹

THIS CAUSE came before the Court at hearing on April 5, 2010 on Plaintiff’s Motion for 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 motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:

Background: This is a P.I.P. case. Anthony Santoro obtained medical treatment and services from the Plaintiff on February 12, 2008. The date of the accident was November 18, 2007. The applicable policy commenced September 21, 2007. Defendant reduced the allowable amount for the medical treatment and services to 200% of the 2008 participating physician’s fee schedule under Medicare Part B Pursuant to F.S. s. 627.736 (“2008 fee schedule”).

The only remaining issue in this suit is whether the Defendant was permitted to apply the 2008 fee schedule to a claim made under a 2007 policy. Defendant maintains that the 2008 fee schedule applies. Plaintiff moved for summary judgment asserting that the 2007 P.I.P. statute applies because the insurance contract was entered into in 2007, prior to the effective date of the 2008 P.I.P. statute. As such, 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 provider’s substantive rights to payment (namely, the contracted payment amount).

Conclusions of Law: The Court bases its current decision on its previous rulings in Glenn Corkins, D.C., Ph.D., P.A. (Yamileth Rodriguez) v. GEICO Indemnity Company, (Case No.: 08-15105 COCE 53) [16 Fla. L. Weekly Supp. 1185a] and Dorsal Rehab, Inc. f/k/a United Diagnostic & Rehab Associates v. GEICO Indemnity Company, 17 Fla. L. Weekly Supp. 226a (Broward County Ct., 2009), which concerned this very same issue and is supported by the analysis of the recent decision of the Florida Supreme Court in Menendez v. Progressive Express Ins. Co., 35 Fla. L. Weekly S81a (Fla. 2010).

In the context of a policy of insurance issued to an insured, courts have held that “the statute in effect at the time the insurance contract is executed governs any issues arising under that contract. ” See MR Services, LLC v. United Auto. Ins. Co., 16 Fla. L. Weekly Supp. 678a (Broward County Ct., 2009) quoting Lumbermen’s Mutual Casualty Company v. Ceballos, 440 So.2d 612 (Fla. 3d DCA 1983), citing to Metropolitan Life Insurance Co. v. Fugate, 313 F.2d 788 (5th Cir. 1963); Allison v. Imperial Casualty & Indemnity Co., 222 So.2d 254 (Fla. 4th DCA 1969); Poole v. Travelers Ins. Co., 130 Fla. 806, 179 So. 138 (1937). See also Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 108 (Fla.1996), citing with approval Lumbermen’s for this well settled legal proposition.

In order to apply the statutory amendment to the insurance policy at issue, the Court must first determine whether the statutory amendment is one that affects substantive rights. If so, the amendment can be applied to the insurance policy only if the insured policy holder expressly consented to the application of the amendment.

In Florida, “[a] ny legislative action which diminishes the value of a contract is repugnant to and inhibited by the [Florida] Constitution.” In re Advisory Opinion, 509 So.2d 292, 314 (Fla. 1987) (emphasis added). The test to determine whether a substantive right is affected is whether the amended “statute impairs vested rights, creates new obligations, or imposes new penalties.” State Farm Mutual Automobile Ins. Co. v. Laforet, 658 So.2d 55, 61 (Fla. 1995). Stated another way, “[a]n impairment occurs [. . .] when a contract is made worse or is diminished in quantity, value, excellence or strength. ” Lawnwood Medical Center, Inc. v. Seeger, 959 So.2d 1222, 1224 (Fla. 1st DCA 2007). A substantive right is vested if it is an “immediate right of present enjoyment, or a present fixed right of future enjoyment.” School Board of Miami-Dade County v. Carralero, 992 So.2d 353, 355 (Fla. 3d DCA 2008) (emphasis added).

In this case, the policy holder received a policy and paid a premium for the insurance policy that expressly provided how medical benefits would be paid over the course of the next year. After the policy was issued, but before the policy expired, the Florida Legislature enacted a statutory amendment which is more advantageous to the insurer and results directly in the payment of a lesser amount for specific medical services. The Defendant’s argument that benefits continue to be capped at $10,000.00 is of no import. This argument assumes incorrectly that each automobile accident will result in treatment equal to or exceeding $10,000.00. This is clearly not the case. Because the insured at the time the policy was issued then had a “present fixed right of future enjoyment” of a certain level of benefits, which is diminished by the statutory amendment, the new law can only apply to the policy if the insured consented to the retroactive application. See Carralero, 992 So. 2d at 355; Lawnwood Medical, 959 So.2d at 1224.

Therefore, the Court next considers whether the insured consented to the retroactive application. In order to retroactively apply a change to a statute affecting substantive rights, a party has to expressly consent to the application. See Pomponio v. Claridge of Pompano Condominium, Inc., 378 So.2d 774, 782 (Fla. 1979); Kaufman v. Shere, 347 So.2d 627, 628 (Fla. 3d DCA 1977). Courts in Florida have upheld the retroactive application of a statutory amendment when the subject contract “clearly and unambiguously incorporates” future amendments to the statute. Kosow v. Condominium Ass ‘n of Lakeside Village, Inc., 512 So.2d 349, 350-51 (Fla. 4th DCA 1987). In Kosow, the contract noted that it “incorporated by reference the Condominium Act [. . .] as the same may be amended from time to time.” Id. at 350. The key is whether the contract clearly evidences express consent to incorporate a specific statute and its future amendment into the contract. See Angora Enterprises, Inc. v. Cole, 439 So.2d 832, 835 (Fla. 1983). In Cole, similar to Kosow, the contract incorporated a statute “as the same may be amended from time to time.” Id. at 834. See also Halpern v. Retirement Builders, Inc., 507 So.2d 622, 623-24 (Fla. 4th DCA 1987) (incorporating provisions of a statute “as the same may be amended from time to time”).

In the instant case, the policy merely states that the insurer “will pay in accordance with the Florida Motor Vehicle No-Fault Law, as amended.” The question for the Court is whether this language is sufficient on its own to demonstrate “clearly and unambiguously” that the policy holder has “expressly consented” to the incorporation of future amendments to the statute. See Kosow, 512 So.2d at 351; Cole, 439 So.2d at 835. The Florida Motor Vehicle No-Fault law was originally adopted in 1971. Ch. 71-252, §1, Fla. Laws. Since then, it has been amended numerous times. Therefore, at the time the policy in the instant case was issued, the No-Fault Law had already been amended up to that point. The Court agrees with Plaintiff’s argument that the mere language “as amended” more likely refers to the No-Fault Law as it had been amended to that point. In any event, the Court finds that the meager language in the policy does not “clearly and unambiguously” provide that the policy holder has “expressly consented” to future amendments, and the Court’s finding is consistent with the analysis of the Fifth District Court of Appeal in State Farm Florida Ins. Co. v. Nichols, 34 Fla. L. Weekly D2275b (Fla. 5th DCA 2009).

Accordingly, it is hereby ORDERED AND ADJUDGED, that Final Summary Judgment is entered in favor of the Plaintiff. The Plaintiff, RONALD J. TRAPANA, M.D., P.A., 4018 Sheridan St., Hollywood, FL 33021, shall recover from the Defendant, GEICO INDEMNITY COMPANY, 3535 West Pipkin Rd., Lakeland, FL 33811, the principal sum of $962.59 together with interest at the rate of 11% pursuant to F.S. s. 627.736(4) in the amount of $198.16.

This judgment shall bear interest at the rate of 6% per year from date of entry until satisfied.

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.

The Court recognizes that this ruling is contrary to other rulings issued on this issue by other county courts in this state. Because of the great number of these cases pending in the county courts of this State; the continuing conflict on the County Court level; the probability that parties will continue to obtain conflicting rulings based on the “luck of the draw” of which County Judge they are assigned at the trial level and which Circuit Judge they are assigned on appeal; and the fact that this issue likely comes up weekly in each county court civil division of this Circuit, this Court certifies to the Fourth District Court of Appeal the following question as affecting the uniform administration of justice:

DOES THE LEGISLATURE’S JANUARY 1, 2008 REENACTMENT/REVISION TO THE FLORIDA NO-FAULT LAW APPLY TO TREATMENT OCCURRING ON OR AFTER JANUARY 1, 2008, WHERE THE EFFECTIVE DATE OF THE INSURANCE POLICY AND THE DATE OF THE ACCIDENT ARE PRIOR TO JANUARY 1, 2008?

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¹Pursuant to Rule 9.160(b), any appeal of the Court’s decision in this matter must be filed in the Fourth District Court of Appeal, and not the Circuit Court.