18 Fla. L. Weekly Supp. 907a
Online Reference: FLWSUPP 1809GUER Insurance — Personal injury protection — Coverage — PIP policy, which provides for payment of reasonable expenses, rather than version of PIP statute in effect at time of treatment, which provides for payment at reduced rate, governs reimbursement
THE IMAGING CENTER OF WEST PALM BEACH, L.L.C., (Patient: Luz Guerrero), Plaintiff, vs. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant. County Court, 15 Judicial Circuit in and for Palm Beach County. Case No. 502008SC014418XXXXSB RD. July 14, 2011. Honorable Reginald Corlew, Judge.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT AND DENYING DEFENDANT’SMOTION FOR FINAL SUMMARY JUDGMENT
This matter having come before the Court on July 14, 2011 for hearing on Plaintiff’s Motion for Final Summary Judgment and Defendant’s Motion for Summary Judgment. Present before the Court appeared counsel for Plaintiff, Nicholas A. Zacharewski, Esquire, Ellis Ged & Bodden, P.A., and counsel for the Defendant, Jesse Drawas, Esquire, Banker, Lopez & Gassler, P.A. Having heard arguments of counsel, reviewed the pleadings, motions and having been otherwise fully advised in the premises, the Court finds as follows:
1. Plaintiff filed the instant action alleging breach of contract for failure to pay personal injury protection benefits for magnetic resonance imaging (MRI) services provided to Luz Guerrero as the result of injuries suffered in a motor vehicle accident.
2. It’s uncontested that Luz Guerrero was involved in a motor vehicle accident on or about September 27, 2007.
3. Plaintiff is claiming entitlement to personal injury protection benefits based on the submission of a CMS-1500 claim form for magnetic resonance imaging services provided to Luz Guerrero on July 12, 2008.
4. Defendant entered into a contract for automobile insurance with Luz Guerrero which provided personal injury protection benefits in the amount of $10,000.00.
5. The policy was in full force and effect on September 27, 2007. The subject police contained a policy period effective from July 19, 2007 through January 19, 2008.
6. Plaintiff timely submitted the subject bill to Defendant. Defendant made payment of the subject bill pursuant to Florida Statute Section 627.736(5)(a)(2)(f)(2008).
7. On or about October 1, 2007, the Florida Motor Vehicle No-Fault Law sunset. On October 11, 2007, the Florida Legislature enacted the Amended Florida Motor Vehicle No-Fault Law which became effective on January 1, 2008.
8. Plaintiff argues that Defendant is not entitled to apply the fee schedules contained in Florida Statute Section 627.736(5)(a)(2)(f)(2008) as the policy was issued on May 10, 2007, and the law in effect at the time the contract was entered into governs substantive issues arising under the contract. Plaintiff further contends that the application of the statue impairs rights and obligations under the subject contract and is not constitutional. Further, Plaintiff contends that Defendant’s policy of insurance does not contain the permissive fee schedule contained in Section 627.736(5)(a)(2) and therefore Defendant cannot utilize the same to reimburse Plaintiffs claim.
9. In Florida, the general rule is that the statute in effect at the time an insurance contract is executed governs the substantive issues arising in connection with that contract. Menendez v. Progressive Express Insurance Company, 35 So. 3d 873 (Fla. 2010) [35 Fla. L. Weekly S81a]. See also; Hassen v. State Farm Mutual Automobile Insurance Company, 674 So. 2d 106, 108 (Fla. 1996) [21 Fla. L. Weekly S102c]; Lumberman’s Mutual Casualty Company 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 Mutual Automobile Insurance Company, 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 the dispute, rather it is the date the contract was entered into that is controlling).
10. Further, the Fourth District Court of Appeal, recently decided Kingsway Amigo Insurance Company v. Ocean Health. The Fourth District held that if an insurer wishes to utilize the permissive fee schedule contained in Section 627.736(5)(a)(2), then it must indicate the same in the policy of insurance. Defendant’s policy of insurance indicates that it will pay 80% of a reasonable expense and does not indicate it intends to utilize the permissive fee schedule. Kingsway Amigo Insurance Company v. Ocean Health, Inc., Case No. 4D10-4887 (Fla. 4d DCA 2011) [36 Fla. L. Weekly D1062a](rehearing denied July 5, 2011).
11. This Court agrees with the holding of the Menendez, as well as the other case law cited by counsel for Plaintiff. In addition this Court is bound by the holding of the Fourth District. See State v. Bamber, 592 So. 2d 1129 (Fla. 2d DCA 1991)(holding that trial courts are obligated to follow decisions of the district courts of appeal in the absence of conflicting authority and where the appellate court in its own district has not ruled on the issue).
12. As such, Plaintiff is entitled to summary judgment as a matter of law as there is no genuine issue of material fact that the subject policy was issued before the Amendments to the Florida Motor Vehicle No-Fault Law became effective, and reimbursement is controlled by the terms of the subject policy and not Florida Statutes Section 627.730-627.7405(2008).
Therefore it is ORDERED and ADJUDGED that Plaintiff’s Motion for Summary Judgment is Granted and Defendant’s Motion for Summary Judgment is Denied. This court reserves jurisdiction to enter final judgment in favor of Plaintiff and to determine reasonable attorney’s fees and costs.
