18 Fla. L. Weekly Supp. 104a
Online Reference: FLWSUPP 1801PARK
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 medical expenses be paid at 80% of reasonable charges controls reimbursement
FIDEL S. GOLDSON, D.C., PA., a Florida Corporation (assignee of Parker, Madinah), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 09-00355 COCE 54. October 11, 2010. Lisa Trachman, Judge. Counsel: Law Office of Russel Lazega, North Miami. Roig, Tutan, Rosenberg & Zlotnick, P.A., Deerfield Beach.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
(Re: Retroactive Application of the 2008 Fee Schedule)
THIS CAUSE came before the Court for hearing on October 1, 2010 on Plaintiff’s Motion for Partial 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; reviewed the relevant legal authorities; heard argument of counsel, and having been sufficiently advised in the premises, finds as follows:
Background:This is a P.I.P. case. The applicable policy of insurance commenced on December 8, 2007 when no P.I.P. statute was in effect (and no mandatory P.I.P. insurance was required). The policy included optional P.I.P. coverage and the relevant policy language indicated that medical expenses would be paid at “80% of all reasonable expenses incurred for medically necessary. . .treatment.” The accident occurred on February 17, 2008 and medical treatment began on March 17, 2008. Defendant reduced the allowable amount for the chiropractic 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”) and has asserted as a defense that it paid the “appropriate and allowable amount of Plaintiff’s claim” and, therefore, no additional benefits are owed.
Plaintiff moves for partial summary judgment as to the defense asserting that the Defendant’s payment made according to the 2008 fee schedule was an impermissible retroactive application that impaired the substantive and vested rights under the policy. Plaintiff maintains that the insurer must apply the P.I.P. law in place at the time the contract was executed and, since there was none in effect, the terms of the policy (which provide broader coverage than the 2008 fee schedule) control and, as such, the Defendant was required to issue payment according to policy.
Legal Conclusions:The Court continues to follow its prior rulings in A Rehab Associates of S. Fla. Corp. (Suarez, Nelson) v. Geico General Ins. Co., 17 Fla. L. Weekly Supp. 478a (Broward County Court, 2010); Totalcare Chiropractic VII, Inc. d/b/a Coast Chiropractic Center (a/a/o Klein Myrtil) v. Geico General Ins. Co., 17 Fla. L. Weekly Supp. 1035b (Broward County Court, 2010); Bernard S. Burton, D.C., P.A. (a/a/o Robin Dubowtiz) v. Geico General Ins. Co., 17 Fla. L. Weekly Supp. 842a (Broward County Court, 2010); and Fidel Goldson, D.C., P.A. (Trishella Jean-Louis) v. Geico Indemnity Co., 17 Fla. L. Weekly Supp. 43b (Broward County Court, 2009).
Accordingly, it is hereby:
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Partial Summary Judgment is GRANTED. The Defendant was not permitted to apply the permissive fee limitation set forth in the 2008 P.I.P. statute to the Plaintiff’s claim, which was made under a 2007 policy when no P.I.P. statute was in effect. Rather, Defendant was required to issue payment at “80% of all reasonable expenses incurred for medically necessary. . .treatment” as required by the applicable policy language, which provides broader coverage than the permissive language of the 2008 P.I.P. statue.
