21 Fla. L. Weekly Supp. 706a
Online Reference: FLWSUPP 2107MCGUInsurance — Personal injury protection — Attorney’s fees — Choice of law — Where claim for treatment of Florida resident by Florida medical provider for accident that occurred in New York was paid pursuant to hybrid of New York and Florida law, but policy was issued in Florida with expectation that Florida law would apply to all disputes and Florida is forum state, motion to apply New York law to issue of attorney’s fees is denied
WASSERMAN CHIROPRACTIC (Patient: Patricia McGuire), Plaintiff, vs. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO 11-14173 (72). March 4, 2014. Honorable Jill K. Levy, Judge. Counsel: Chad L. Christensen, Ellis, Ged & Bodden, P.A., Boca Raton, for Plaintiff.
ORDER ON DEFENDANT’S MOTION FORAPPLICATION OF NEW YORK NO-FAULTINSURANCE LAW TO ISSUE OF ATTORNEY’S FEES
THIS CAUSE, having come before the Court on Defendant’s Motion for Application of New York No-Fault Insurance Law to Issue of Attorney’s Fees, and the Court having heard argument of counsel, having reviewed the relevant case law and the court file, and otherwise being fully advised in the premises, finds as follows:
UNDISPUTED FACTS
The insured, Patricia McGuire, entered into an auto policy with Defendant, Geico General Insurance Co., (“GEICO”) which was written and delivered in the state of Florida where Patricia McGuire resides. The vehicles listed in the policy are registered in the state of Florida. Patricia McGuire was involved in an auto accident in New York State on November 29, 2010. Patricia McGuire was treated by the Plaintiff, Wasserman Chiropractic (“WASSERMAN”) in Florida from January 18- April 20, 2011. She assigned her rights and benefits under her policy to WASSERMAN. A claim was submitted to GEICO but was not paid timely. This lawsuit for breach of contract was filed on November 30, 2011. On or about August 14, 2013, GEICO confessed judgment in the amount of $1991.16 plus interest in the amount of $228.41.
FACTS
There is no dispute that attorney’s fees are due to WASSERMAN but GEICO claims that New York law should apply as to the issue of attorney’s fees, not Florida. GEICO states that it paid pursuant to NY No Fault Insurance law and has cited New York’s “deemer” statute which provides for an out of state policy issued by an insurer authorized to transact business in NY to include in the policy coverage to satisfy the financial security requirements and provide payment of first party benefits pursuant to §5103(a) when a covered motor vehicle is operated in NY. §5107 Comprehensive Motor Vehicle Insurance Reparations Act (2013). New York’s No-Fault Insurance benefits are payable at 100% the NY fee schedule up to a maximum of $50,000 in first party benefits.
GEICO ultimately utilized a hybrid methodology for payment using both New York and Florida law. Upon reviewing the Explanations of Review submitted by GEICO, each and every review indicates that: “Fee reduced per Florida Statute 627.736(5)(a)(2). Unless otherwise noted, all bill review reductions are due to charges exceeding the guidelines of the Florida Motor Vehicle No-Fault Law.” GEICO paid its Confession of Judgment pursuant to the Florida Medicare Part B fee schedule but paid at 100% the fee schedule.
CONCLUSIONS OF LAW
The sole issue before the Court is whether NY or Florida law applies to the attorney’s fees; a choice of law matter. GEICO argued that the holding in American Family Mutual Insurance Co. v. Alvis, 72 So.3d 314 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D2340a] applies in the instant case. The facts in that case were as follows: Alvis, a resident of Nebraska who held insurance coverage under policies issued in Nebraska, was involved in an accident in Florida in which he died. His personal representative pursued a claim to collect coverage in Florida court. The Court held that Florida, as the forum state, has determined that the statutory right to attorney’s fees is a substantive right. Because the fee claim was based solely on the Nebraska statute, Nebraska law governs the substantive right to attorney’s fees. Alvis at 317., See also Menendez v. Progressive Express Ins. Co., 35 So.2d 873 (Fla. 2010) [35 Fla. L. Weekly S81a]. GEICO made the argument that because Florida views attorney’s fees as substantive, not procedural, New York law should apply because payment was made under New York’s “deemer” statute.
The breach of contract claim made by WASSERMAN was based upon the insurance policy/ contract entered into between Patricia McGuire and GEICO which was issued and delivered in Florida. Florida courts have long adhered to the rule of lex loci contractus when determining liability under a contract. That rule, as applied to insurance contracts, provides that “the law of the jurisdiction where the contract was executed governs the rights and liabilities of the parties when determining an issue of coverage”. Sturiano v. Brooks, 523 So.2d 1126 (Fla. 1988). The breach of contract claim was actually paid under some hybrid of Florida and NY law in order to satisfy the NY “deemer” statute. However, the policy was issued in Florida with the expectation of Florida law applying to any disputes. The Court notes that the GEICO insurance policy was not taken into consideration for any possible choice of law provision as the policy was not provided to the Court or made a part of any argument.
The Federal District Court in Carr v. American Universal Insurance Co., 341 F.2d 220 (6th Cir. 1965) dealt with a similar issue. In Carr, there was an auto accident in Tennessee involving the insured who resided in Florida and who were issued issuance policies in Florida. The case was transferred to Tennessee court from Florida based upon diversity of citizenship. The Court held that the liability of the insurance companies under the policies of insurance were to be governed by the lex loci contractus which was Florida. Carr at 222. The Court had to consider whether Florida law or Tennessee law should apply to the statutory claim of attorney’s fees. In Florida, attorney’s fees may be awarded pursuant to an entitling statute or agreement among the parties. Dade County v. Pena, 664 So.2d 959 (Fla.1995) [20 Fla. L. Weekly S593b]. The Court in Carr held that Florida law applies since it was initially the forum state. If the case was tried in Florida, the Court would have conceivably applied the Florida statute for the allowance of attorney’s fees. Carr at 224.
Florida statutes provide for attorney’s fees against an insurer and in favor of an insured upon rendition of a judgment or decree by any courts of this state. §627.428(1), Florida Statutes (2013). As such, once GEICO confessed judgment, WASSERMAN is entitled to attorney’s fees under Florida statute. Lewis v. Universal Property and Casualty Insurance Co., 13 So.2d 1079 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D1104a], First Floridian Auto & Home Ins. Co. v. Myrick, 969 So.2d 1121 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D2672a]. It is hereby
ORDERED AND ADJUDGED that Defendant’s Motion for Application of New York No-Fault Insurance Law to Issue of Attorney’s Fees is DENIED.
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