18 Fla. L. Weekly Supp. 408a
Online Reference: FLWSUPP 1804GASB
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
THE IMAGING CENTER OF WEST PALM BEACH, L.L.C., (Patient: Yolene Gasbard), Plaintiff, vs. NATIONWIDE GENERAL INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 5020008SC009327XXXXMB RL. February 9, 2011. Honorable Paul A. Damico, Judge. Counsel: Nicholas A. Zacharewski, Ellis, Ged & Bodden, P.A., Boca Raton, for Plaintiff. Michael J. Laporte, Law Offices of Patricia E. Garagozlo, Lake Mary, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT REGARDING THE APPLICATION OF FLORIDA STATUTES SECTION 627.730-627.7405(2008)
This matter having come before the Court on January 12, 2011 for hearing on Plaintiff’s Motion for Summary Judgment Regarding the Application of Florida Statutes Sections 627.730-627.7405(2008). Present before the Court appeared counsel for Plaintiff, Nicholas A. Zacharewski, Esquire, Ellis Ged & Bodden, P.A., and counsel for the Defendant, Michael J. Laporte, Esquire, Law Offices of Patricia E. Garagozlo. 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 services rendered by Plaintiff to Yolene Gasbard for injuries suffered arising out of a motor vehicle accident on March 2, 2008.
2. Its uncontested that Yolene Gasbard was involved in a motor vehicle accident on or about March 2, 2008.
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 Yolene Gasbard on April 10, 2008.
4. Defendant entered into a contract for automobile insurance with Frantz Berrouet which provided personal injury protection benefits in the amount of $10,000.00. At the time of the subject accident, Yolene Gasbard was a passenger in the vehicle being driven by Frantz Berrouet, As such, Ms. Gasbard qualified for personal injury protection benefits under the policy granted to Frantz Berrouet.
5. The policy was in full force and effect on March 2, 2008. The policy was issued on November 1, 2007 and was effective from December 2, 2007 through June 2, 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) and made payment pursuant to the Outpatient Prospective Payment Schedule (OPPS).1
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 November 1, 2007, and the law in effect at the time the contract was entered into governs substantive issues arising under the contract. Plaintiff further contended that the retroactive application of the statue impairs rights and obligations under the subject contract and is not constitutional. In addition, Plaintiff asserted that the policy language governs and the policy does not reference the provisions of the Amended Motor Vehicle No-Fault Law and require reimbursement pursuant to the terms of the contract which require payment of 80% of a reasonable medical expense.
9. Defendant contends that the policy was issued after the enactment of the Amended Florida Motor Vehicle No-Fault Law, therefore Defendant’s was not retroactive application of the statute. Defendant further contended that the Legislature, nevertheless, intended for the retroactive application of the Amended Florida No-Fault Law pursuant to s. 627.7407, Fla. Stat., which provides that “[a]ny personal injury protection policy in effect on or after January 1, 2008, shall be deemed to incorporate the provisions of the Florida Motor Vehicle No-Fault Law, as revived and amended by this act.” Further, Defendant argued that the amendment did not impair any vested rights.
10. 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 S222b]. 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); Beaver & Kirshner, P.A. d/b/a Infinity Medical and Rehab v. Government Employees Insurance Company, 17 Fla. L Weekly Supp. 475c (Fla. 15th Jud. Cir. 2010).
11. Defendant argues that the Supreme Court in the Menendez case used the word enactment and the dispositive issue is whether the policy was issued prior to the enactment of the statute. Menendez, 35 So. 3d 873 at 876.
12. Careful review of the Menendez case clearly shows that the cases cited and reviewed by the Supreme Court follow the general rule that the law in effect at the time the contract was entered into is controlling, not the date the statute was enacted. Menendez, 35 So. 3d 873 at 876.
13. This Court finds that the Legislature failed to distinguish between the words “enactment” and “in effect”, and the dispositive issue is the date the statute was in effect and not the date the statute was enacted. See Hausler v. State Farm Mutual Automobile Insurance Company, 374 So. 2d 1037, 1038 (Fla. 2d DCA 1979); Lumberman’s Mutual Casualty Company v. Ceballos , 440 So. 2d 612, 613 (Fla. 3d DCA 1983).
14. This Court agrees with the several cases cited by Plaintiff finding that insurance policies issued during the statutory gap period are not subject to the fee schedule provisions of the Amended Florida Motor Vehicle No-Fault Law. See Plantation Open MRI, L.L.C. v. State Farm Mutual Automobile Insurance Company, 17 Fla. L Weekly Supp. 701a (Fla. 17th Jud. Cir. 2010); OMI of Orange Park, Inc. v. State Farm Mutual Automobile Insurance Company, 17 Fla. L. Weekly Supp. 697a (Fla. 17th Jud. Cir. 2010); Frayle v. United Automobile Insurance Company, 17 Fla. L. Weekly Supp, 591a (Fla. Jud. Cir. 2010); A Rehab Associates of S. Fla. Corp, v. Geico General Insurance Company, 17 Fla. L. Weekly Supp. 478a (Fla. 17th Jud. Cir. 2010); Beaver & Kirshner, P.A. d/b/a Infinity Medical and Rehab v. Government Employees Insurance Company, 17 Fla. L. Weekly Supp. 475c (Fla. 15th Jud. Cir. 2010).
15. 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). Defendant is required to reimburse Plaintiff for 80% of a reasonable expense.
Therefore it is ORDERED and ADJUDGED that Plaintiff’s Motion for Summary Judgment is Granted. This court reserves jurisdiction to enter final judgment in favor of Plaintiff and to determine reasonable attorney’s fees and costs.
__________________
1Plaintiff moved for summary judgment regarding the payment made by Defendant which was made pursuant to the Outpatient Prospective Fee Schedule. The Court did not rule on the issue of whether payment may be made pursuant to the Outpatient Prospective Payment System as the granting of the subject motion made Plaintiff’s Motion moot.
