22 Fla. L. Weekly Supp. 649b
Online Reference: FLWSUPP 2205STEPInsurance — Personal injury protection — Coverage — Medical expenses — Initial treatment within 14 days after accident — Where PIP policy contains amendatory endorsement adopting 2013 PIP statute requirement that party seeking PIP benefits must receive initial treatment within 14 days after accident, insurer has no obligation to pay claim submitted by assignee of insured who did not receive initial treatment within 14 days after accident
MDM CHIROPRACTIC CENTER, P.A. a/a/o, Ernanie Stephon, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 13-010137-COCE-56. October 27, 2014. Honorable Linda R. Pratt, Judge. Counsel: Harley Kane, for Plaintiff. Jeff Kolokoff, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT ANDDENYING PLAINTIFF’S MOTION FORPARTIAL SUMMARY JUDGMENT
THIS CAUSE came upon to be heard on September 15, 2014 on Plaintiff’s Motion for Partial Summary Judgment and Defendant’s Motion for Final Summary Judgment and the Court having heard argument of counsel and being otherwise fully advised in the premises, it is hereby
ORDERED AND ADJUDGED as follows the following facts are undisputed:FACTUAL BACKGROUND
1. This lawsuit for personal injury protection (PIP) benefits arose out of a motor vehicle accident that occurred on January 12, 2013.
2. Defendant issued a policy of insurance to claimant on October 25, 2012 with an effective date of December 2, 2012 through June 2, 2013.
3. § 627.736(1)(a), Fla. Stat. (2013) provides that a party seeking PIP benefits must receive initial treatment within fourteen days after the motor vehicle accident.1
4. The policy of insurance issued by Defendant to Claimant on October 25, 2012, contained an amendatory endorsement adopting the statutory language that stated, in pertinent part, “Effective January 1, 2013. . . Medical Benefits only include: 1) services and care received within the initial 14 days after the motor vehicle accident, or 2) follow up services and care beyond the initial 14 days after the motor vehicle accident. . . .”
5. Claimant did not receive initial treatment within the 14 day period following the accident.
6. Plaintiff MDM Chiropractic (“Plaintiff”) sought payment of medical bills for treatment rendered to Claimant Ernanie Stephon (“Claimant”) pursuant to an assignment of benefits executed by Claimant in favor of Plaintiff.
7. Defendant refused to pay PIP benefits to Plaintiff based upon Claimant’s failure to receive treatment within the fourteen (14) day period prescribed by § 627.736(1)(a), Fla. Stat. (2013) and the terms of the policy of insurance and raised this defense in its answer and affirmative defenses.
8. Plaintiff filed a reply and motion to strike the affirmative defenses. The motion to strike affirmative defenses was never set for hearing.
9. Defendant filed its Motion for Final Summary Judgment and Plaintiff filed its Motion for Partial Summary Judgment.
10. The Court heard oral argument on both motions on September 15, 2014 and has thoroughly reviewed the record and authorities relied on by the parties.
11. The Plaintiff argued that under Menendez v. Progressive Express Ins. Co., 35 So. 3d 873 (Fla. 2010) [35 Fla. L. Weekly S81a], the statute in effect at the time the policy was issued controls the substantive issues in this matter.
12. The Defendant argued that Menedez does not apply.
13. It is undisputed that, prior to January 1, 2013, the no-fault statute contained no “14 day requirement.”CONCLUSIONS OF LAW
A policy of insurance is a contract and, like other contracts, should be interpreted in a reasonable, practical, and sensible manner. State Farm Mut. Auto Ins. Co., v. Mashburn, 15 So. 3d 701 (Fla. 1st DCA 2009) [34 Fla. L. Weekly D1320a] (quoting Gen. Star Indem. Co. v. W. Fla. Village Inn, Inc., 874 So. 2d 26, 29 [29 Fla. L. Weekly D348a]. Courts should interpret insurance contracts to “give each provision its full meaning and operative effect.” Mashburn, 15 So. 3d at 704 (quoting Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000) [25 Fla. L. Weekly S211a]). Further, trial courts should consider the plain language of the policy at time of loss Florida Windstorm Underwriting v. Gajwani, 934 So.2d 501 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D1213a]. Finally, coverage may be limited so long as the language of the amendatory endorsement is clear, plain, and unambiguous. Kickliter v. National Union Fire Ins. Co., 188 So. 2d 872 (Fla. 3d DCA 1966) see also American Liberty Ins. Co. v. Gaffney, 230 So. 2d 720, 721 (Fla. 2d DCA 1970). The Florida Supreme Court, in interpreting insurance contracts has emphasized the need for notice. In Hausler v. State Farm Mut. Ins. Co., 374 So. 2d 1037 (Fla. 1979), the Court stated that the statute at the time of the policy’s issuance governed the policy because “neither party was on notice” of the new statute. Id. at 1038.
In support of its Motion, Plaintiff cited Menendez v. Progressive Express Ins. Co., 35 So. 3d 873 (Fla. 2010) [35 Fla. L. Weekly S81a]. There, the Court concluded that an insurer could not retroactively impose a demand letter requirement upon an insured when the demand letter was not required by statute at the time the policy was enacted. (Emphasis Added). In Menendez, it was undisputed that the insured was not given notice of the demand letter requirement when the policy was incepted. The Court held that because the demand letter provision affected substantive rights (attorney’s fees), that it could not be applied retroactively. Further, the cases cited in Menendez2 are similarly devoid of any notice to the insured.
Accordingly, the Court concludes that Menendez does not apply to the instant case. Here, policy of insurance clearly laid out the coverage allowed which adopted by endorsement the 2013 PIP statute. Further, the amended 2013 PIP statute was enacted prior to the issuance of the policy of insuranceand the Claimant was given adequate notice of the coverage provided under the policy of insurance thorough the amendatory endorsement to the policy effective on January 1, 2013 and through enactment of the statute seven months before its effective date. Further, the language of the amendatory endorsement is clear, plain, and unambiguous which advised the insured that in order to obtain PIP benefits that it must have an initial treatment fourteen (14) days after the accident.
The court finds, in accordance and the reasons stated above, that there is no genuine issue of material fact and that Defendant is entitled to judgment as a matter of law as it is undisputed that the insured did not receive initial treatment within fourteen (14) days of the accident and therefore Defendant has no obligation to pay Plaintiff’s claim as required by the policy of insurance which adopted the 2013 PIP statute which was enacted prior to the issuance of the policy.
Wherefore, for the foregoing reasons, the Court hereby orders and adjudges that:
1. Defendant’s Motion for Final Summary Judgment is GRANTED.
2. Plaintiff’s Motion for Partial Summary Judgment is DENIED.
3. Defendant shall go henceforth without day.
4. The Court reserves jurisdiction to entertain any timely served motion to tax attorney’s fees and costs.
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1The 2013 amendments to § 627.736 were enacted on May 4, 2012 and effective January 1, 2013. The 14 day language is contained in the amendment.
2Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106 (Fla. 1996) [21 Fla. L. Weekly S102c]; Lumbermans Mut. Cas. Co., 440 So. 2d 612 (Fla. 3d DCA 1983) and Hausler, 374 So. 2d at 1038, supra.
