18 Fla. L. Weekly Supp. 84c
Online Reference: FLWSUPP 1801MORE
Insurance — Personal injury protection — Coverage — Reduced fee schedule in 2008 PIP statute cannot be applied to payment of benefits under policy issued in 2007, prior to effective date of statute — Even if 2008 statute were applicable, insurer is required to pay 80% of medical expenses in accordance with plain language of policy rather than limiting payment in accordance with permissive language of 2008 statute
MIAMI NEUROLOGY & REHABILITATION SPECIALISTS, INC., a Florida Corporation, (assignee of Morera, Jacques 2), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 09-22647 SP 23 (1). October 13, 2010. Myriam Lehr, 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 JUDGMENT
THIS CAUSE came before the Court for hearing on August 23, 2010 on Plaintiff’s Motion for Partial Summary Judgment and the Court, having reviewed the motion; entire Court file; and relevant legal authorities and heard argument of counsel finds as follows:
Background: This is a P.I.P. case. Jacques Morera received medical treatment from Plaintiff from January 24, 2008 through March 13, 2008 for injuries sustained in an automobile accident on January 4, 2008. The applicable policy was issued on August 14, 2007. Defendant maintains that it properly paid Plaintiff’s claim according to the reimbursement limitations set forth in F.S. s. 627.736 (“2008 fee schedule”). The Plaintiff has moved for partial summary judgment asserting that Defendant’s payment pursuant to the 2008 fee schedule was improper as: (1) the policy in question was issued in 2007 (prior to the effective date of the 2008 fee schedule) and, as such, the 2008 fee schedule may not be retroactively applied and (2) even if the 2008 fee schedule is permitted to be applied to a policy first issued in 2007, 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: The Court bases its current decision off of its previous ruling in Virtual Imaging Services, Inc. v. Geico General Ins. Co., Case No.: 2009-24923-SP-23 (Miami Dade County, Judge Myriam Lehr, 2010) and the 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 S81a], which held that the pre-suit 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) [35 Fla. L. Weekly S81a] citing Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996) [21 Fla. L. Weekly S102c]; 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).
The Court recognizes the Defendants argument that the legislative intent was to apply the statute retroactively. However, the Supreme Court has plainly set constitutional limits on when a court may apply a statute retroactively.1 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) [35 Fla. L. Weekly S81a] citing State Farm Mut. Auto Ins. Co. v. Laforet, 658 So. 2d 55, 61 (Fla. 1995) [20 Fla. L. Weekly S173a].
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 the insured purchased the policy on August 14, 2007 as the policy that the insured 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) [16 Fla. L. Weekly Supp. 1185a].
On the second point, the Court is bound to follow State Farm v. Nichols, 21 So.3d 904 (Fla. 5th DCA 2009) [34 Fla. L. Weekly D2275b]. 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 Fifth 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 and indicated that it would pay as follows: “We will pay in accordance with the No-Fault Act. . . medical expenses: 80% of the reasonable charges incurred for necessary medical. . .services.”
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 grants Plaintiff’s Motion for Partial 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.
Accordingly, it is hereby ORDERED AND ADJUDGED, that Partial Summary Judgment as to this issue is entered in favor of the Plaintiff.
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1The parties each dispute the legislative intent, i.e., whether the legislature intended to apply the statute retroactively, however, the Court need not reach this issue.
