RONALD J. TRAPANA, M.D., P.A, (assignee of Ware, Carla), v. GOVERNMENT EMPLOYEES INSURANCE COMPANY
Jan 13, 2010
OUTCOME: Plaintiff's MSJ GRANTED and Defendant's MSJ DENIED
ORDER GRANTING PLAINTIFF'S MOTION
FOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE came before the Court for hearing on Plaintiff's Motion for Partial Summary Judgment and Defendant's Motion For Summary J...udgment. Having reviewed the motion and entire Court file, the relevant legal authorities and considered legal argument,
IT IS ORDERED AND ADJUDGED
The Plaintiff's Motion for Partial Summary Judgment is hereby GRANTED, and Defendant's Motion for Summary Judgment is DENIED, for reasons stated in OMI of Orange Park, Inc. v. GEICO General Insurance Company, 16 Fla. L. Weekly Supp 1088 (Broward County Court -- August 19, 2009). Jurisdiction is reserved to enter final judgment in favor of Plaintiff on the amount of damages, after hearing if the parties cannot agree, and to award fees and costs to Plaintiff as the prevailing party.
Insurance
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT (Re: Retroactive Application of the 2008 Fee Schedule)
Jan 06, 2010
OUTCOME: Plaintiff's Motion for Summary Judgment is GRANTED. Plaintiff has obtained a “judgment or decree” entitling Plaintiff to recover from Defendant attorney's fees and costs in an amount to be determined at a later hearing.
Background: This is a P.I.P. case. The applicable policy of insurance commenced on or about November 24, 2007, when no P.I.P. statute was in effect and no mandatory P.I.P. insurance was required.
Th...e relevant policy language indicates medical expenses will be paid at 80% of the medically necessary expenses. The accident occurred on or about April 3, 2008 and the services were rendered from July 22, 2008 through July 24, 2008. Defendant reduced the allowable amount for the chiropractic services provided to 200% of the 2008 participating physician's fee schedule under Medicare Part B Pursuant to F.S. s. 627.736 (“2008 fee schedule”). Defendant maintains that the 2008 fee schedule applies. Plaintiff responds that the policy of insurance is controlling because the insurance contract was entered into in November of 2007, during which time there was no P.I.P. statute in effect, and prior to the effective date of the 2008 P.I.P. statute. As such, the insurer must apply the P.I.P. law in place at the time the contract was executed (and since there was none in effect, the policy is controlling), as to do otherwise would affect the provider's substantive rights to payment (namely, the contracted payment amount).
Legal Conclusions: This Court agrees with both the Supreme Court of Florida and the United States, and its progeny, in finding that, “[i]n the context of a policy of insurance issued to an insured, Courts have held that ‘the statute in effect at the time the insurance contract is executed governs any issues arising under that contract.' ” See MR Services, LLC v. United Auto. Ins. Co., 16 Fla. L. Weekly Supp. 678a (Broward County, Judge Robert W. Lee, 2009) quoting Lumbermens Mutual Casualty Company v. Ceballos, 440 So.2d 612 (Fla. 3rd DCA 1983); citing to Metropolitan Life Insurance Co. v. Fugate, 313 F.2d 788 (5th Cir. 1963); Allison v. Imperial Casualty & Indemnity Co., 222 So.2d 254 (Fla. 4th DCA 1969); Poole v. Travelers Ins. Co., 130 Fla. 806, 179 So. 138 (1937); See also Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 108 (Fla.1996), citing with approval Lumbermens for this well settled legal proposition.
Moreover, the Florida Supreme Court has consistently adhered to the sound legal principle that neither the Courts nor the legislature may retroactively modify or impair established substantive rights under a contract. See Smiley v. State, 966 So. 2d 330 (Fla. 2007). Courts are clear to note the distinction between changes to substantive rights under a contract (which are prohibited) and changes to procedural rights under a contract (which are permitted). See Id; compare Progressive Express Ins. Co. v. Menendez, 979 So. 2d 324, 331 (Fla. Dist. Ct. App. 3d Dist. 2008) (holding, “[b]ecause we conclude that the application of subsection 627.736(11) to the plaintiffs' claim for PIP benefits is procedural in nature, and it does not alter any contractual or vested rights of the plaintiffs, we find that to require the plaintiffs to provide presuit notice before filing their lawsuit after the enactment of the statute does not violate the general rule against retrospective operation.”). In the instant case, the Defendant has retroactively affected the substantive rights of the Plaintiff (how much is paid under the insurance contract) by its unilateral, retroactive application of the fee schedule in the 2008 P.I.P. statute (which undisputedly pays less than contract/policy of insurance). This fee schedule application clearly affects the substantive rights and obligations of both the insurance companies and the policyholders, and cannot properly be deemed a remedial amendment. See State Farm Mutual Automobile Ins. Co. v. Laforet, 658 So. 2d 55 (Fla. 1995).
Insurance
GLENN CORKINS, D.C., PH.D., P.A. d/b/a ADVANCED SPINE CENTER OF THE PALM BEACHES vs. GEICO INDEMNITY COMPANY
Sep 30, 2009
OUTCOME: ORDERED AND ADJUDGED that the Plaintiff's Motion for Partial Summary Judgment is GRANTED.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on September 24, 2009 for hearing of the Plaintiff's Motion for Summary Judgment (on the issue of whether Defend...ant improperly applied the 2008 P.I.P. fee schedule retroactively to a claim made under a 2007 policy), and the Court's having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background. This is a P.I.P. case. Yamileth Rodriguez obtained medical treatment and services from the Plaintiff from February 5, 2008 through March 3, 2008. The date of the accident was November 9, 2007. The applicable policy commenced May 18, 2007. Defendant reduced the allowable amount for the medical treatment and services to 200% of the 2008 participating physician's fee schedule under Medicare Part B pursuant to F.S. §627.736 (“2008 fee schedule”). Defendant maintains that the 2008 fee schedule applies. Plaintiff responds that the 2007 fee schedule applies because the insurance contract was entered into in 2007, prior to the effective date of the 2008 P.I.P. statute. As such, the insurer must apply the P.I.P. law in place at the time the contract was executed, as to do otherwise would affect the provider's substantive rights to payment (namely, the contracted payment amount).
Insurance -- Personal injury protection -- Coverage -- Version of PIP statute in effect at time PIP policy was executed, which provided for payment of 80% of reasonable charges, rather than version in effect at time of treatment, which provides for payment of 80% of 200% of Medicare fee schedule, is applicable where statutory change is substantive, and statement in policy that insurer “will pay in accordance with Florida Motor Vehicle No-Fault Law, as amended” does not clearly and unambiguously provide that insured has expressly consented to future statutory changes
