18 Fla. L. Weekly Supp. 894b
Online Reference: FLWSUPP 1809JEAN
Insurance — Personal injury protection — Coverage — 2008 amendment to PIP statute which limits amount insurers reimburse providers for services does not apply retroactively to policy that was in effect and that expired before statute’s effective date of January 1, 2008
TRI-COUNTY DIAGNOSTIC & IMAGING, L.L.C., (Patient: Gerarda Jean), Plaintiff, vs. GEICO INDEMNITY COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 502008SC016652XXXXSB RD. July 15, 2011. Honorable Reginald Corlew, Judge.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
This matter having come before the Court on July 15, 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 & Gassier, 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 Gerarda Jean as the result of injuries suffered in a motor vehicle accident.
2. Its uncontested that Gerarda Jean was involved in a motor vehicle accident on or about December 12, 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 Gerarda Jean on January 21, 2008.
4. Defendant entered into a contract for automobile insurance with Gerard Jean and Ghislaine Jean which provided personal injury protection benefits in the amount of $10,000.00. The policy of insurance inured to the benefit of Gerarda Jean.
5. The policy was in full force and effect on December 12, 2007. The policy was effective from June 25, 2007 through December 25, 2007.
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 argues that the legislature did not intend for the Amended Florida No-Fault Law to apply to policies of insurance that expired prior to January 1, 2008.
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 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, rather it is the date the contract was entered into that is controlling).
10. Further, the Second District Court of Appeal in Geico v. Physicians Group ruled on the identical issue that is presented in the instant case. In Physicians Group, Geico issued a policy where the policy period expired prior to January 1, 2008; however, Physician’s Group provided treatment after January 1, 2008. The Second District affirmed the ruling of the trial court and held that the Amendment to the Florida Motor Vehicle Statute was not intended to apply retroactively to an insurance policy that expired prior to January 1, 2008. Geico Indemnity Company v. Physicians Group, L.L.C., 47 So. 3d 354 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D2448a].
11. This Court agrees with the holding of the Second District, as well as the other case law cited by counsel for Plaintiff. In addition this Court is bound by the holding of the Second 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.
