17 Fla. L. Weekly Supp. 1111a
Online Reference: FLWSUPP 1711HERRInsurance — Personal injury protection — Coverage — Fee schedule in 2008 version of PIP statute is inapplicable where policy was issued prior to effective date of 2008 PIP statute, and plain language of policy required defendant to pay 80% of reasonable expenses rather than limiting payment in accordance with permissive language of 2008 PIP statute
VIRTUAL IMAGING SERVICES, INC., Yraida Herrera, Plaintiff, vs. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 09-7043 SP 23 (4). June 17, 2010. Eric Hendon, Judge. Counsel: Harley Kane, Kane & Kane, P.A., Boca Raton. Emilio Cacase, Miami.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND FINAL SUMMARY JUDGMENT FOR PLAINTIFF
THIS CAUSE came before the Court for hearing on June 8, 2010 on Plaintiff’s Motion for Summary Judgment. The Defendant has also filed its own Motion for Summary Judgment. The Parties have executed a Joint Stipulation attaching the declaration page, the insurance policy, and all applicable endorsements. The Parties agree that there are no material disputed issues of fact and this matter may be disposed of as a matter of law. 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. Yraida Hererra received diagnostic testing from Plaintiff on April 26, 2008 for injuries from an automobile accident on February 20, 2008. The applicable policy was issued on December 19, 2007. Defendant has asserted as a defense to payment that it properly paid Plaintiff’s claim according to the reimbursement limitations set forth in F.S. s. 627.736 (“2008 fee schedule”). The parties have entered a Joint Stipulation which states that should the Court find that the 2008 fee is inapplicable to the Plaintiff’s bill and, thus, Defendant is not permitted to utilize the reimbursement limitation contained therein, Defendant will not challenge the Plaintiff’s claim that the $1,800.00 charge is reasonable and Plaintiff shall be entitled to judgment equal to 80% of its bill, less any prior payments, plus statutory interest.
The Plaintiff makes two arguments: (1) that since the policy in question was issued in 2007 (prior to the effective date of the 2008 fee schedule) and therefore the 2008 PIP fee schedule may not be retroactively applied and (2) even if the 2008 PIP fee schedule is permitted to be applied to a policy first issued in 2007, that the defendant is bound by the plain language of its policy, and cannot rely on the permissive language in the 2008 no-fault act rather than the contractual language of its policy.
Legal Conclusions:
This Court agrees with the Plaintiff and bases its ruling on the recent decision of the Florida Supreme Court in Louis R. Menendez, Jr., Et Al. v. Progressive Express Ins. Co. Inc., (Florida Supreme Court, Case No. SC08-789, February 4, 2010) [35 Fla. L. Weekly S222b], which held that the presuit notice provision of the P.I.P. statute (section 627.736(11), Florida Statutes (2001)), could not be applied retroactively to insurance policies issued prior to the effective date of the statute because it, “as a whole, is a substantive statute.”
The Menendez Court found as follows:
In our analysis, we look at the date the insurance policy was issued and not the date that the suit was filed or the accident occurred, because “the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.”
Louis R. Menendez, Jr., Et Al. v. Progressive Express Ins. Co., Inc., (Florida Supreme Court, Case No. SC08-789, February 4, 2010) citing Hassen v. State Farm Mut. Auto. Ins. Co. 674 So. 2d 106, 108 (Fla. 1996); see also Lumbermens Mut. Cas. Co. v. Ceballos, 440 So. 2d 612, 613 (Fla. 3d DCA 1983) (holding that a liability policy is governed by the law in effect at the time the policy is issued, not the law in effect at the time a claim arises); Hausler v. State Farm Mut. Auto. Ins. Co., 374 So. 2d 1037, 1038 (Fla. 2d DCA 1979) (holding that the date of the accident does not determine the law that is applicable to a dispute).
While this court is always leary to rule contrary to a stated legislative intent, the Supreme Court has plainly set constitutional limits on when a court may apply a statute retroactively. Specifically, the Court has stated that
“Even where the Legislature has expressly stated that a statute will have retroactive application, this Court will reject such an application if the statute impairs a vested right, creates a new obligation, or imposes a new penalty.”
Menendez, (Fla., Case No. SC08-789, February 4, 2010) citing State Farm Mut. Auto Ins. Co. v. Laforet, 658 So. 2d 55, 61 (Fla. 1995).
In the instant case, the Court finds that the rights under the policy of insurance at issue are substantive and that these rights vested at the time Ms. Herrera purchased the policy on December 18, 2007 as the policy that Ms. Herrera 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). Moreover, the court finds relevant that there appears to be little or no notice from the insurer to the policyholder that PIP benefits would be paid at a lower rate under the new 2008 P.I.P. changes.
On the second point, the Court is bound to follow State Farm v. Nichols, 21 So.3d 904 (Fla. 5th DCA 2009). In Nichols, the insurer argued that it was entitled to pay in accordance with the limitation language in a statute that was not specifically mentioned in the policy, while at the same time the policy provided a means to determine payment. The 5th DCA, however, considered the “may limit” language appearing in the sinkhole statute to be permissive. Id. At 905. Similarly, the language “may limit” appears in the new PIP statute. In both Nichols and this matter, the insurer failed to reference the permissive language in the policy. As a result, the Court concludes, consistent with Nichols, that the defendant is obligated to pay “80 % of medical expenses” as required by the plain language of its policy regardless of the limitation permitted by the statute.
The Court disagrees with the Defendant’s interpretation of the cases and authority relied upon by Defendant. See Allstate Insurance Company v. Holy Cross Hospital, Inc., 961 So. 2d 328 (Fla. 2007); R.A.M. of South Florida, Inc. v. WCI Communities, Inc., 869 So. 2d 1210 (Fla. 2d DCA 2004), Century Village, Inc. v. Wellington, E, F, K, L, H, J, M, & G, Condominium Association, 361 So. 2d 128 (Fla.1978); Fla. Stat. §§627.7407(2)-(3), Fla. Stat. (2008).
Accordingly, the Court grants Plaintiff’s Motion for Summary Judgment and denies the Defendant’s motion for Summary Judgment and finds the 2008 fee schedule inapplicable in this case because (1) the policy was issued in 2007, before the effective date of the 2008 PIP statute and (2) the plain language of the policy required the defendant to pay 80% of the medical expenses rather than limiting payment in accordance with the permissive language of the 2008 PIP statute.
It is therefore, ORDERED AND ADJUDGED that the Plaintiff’s is awarded summary final judgment in the principal amount of $812.54 (100% of $3,600.00 – $2,787.46) together with prejudgment interest from June 10, 2008 in the amount of $178.51, for a total judgment of $991.05 for which let execution issue. The Court finds that Plaintiff is entitled to its reasonable attorneys fees and costs and reserves jurisdiction to determine the amount of same and enter judgment thererfor.
