PIP Portal

24 Fla. L. Weekly Supp. 732a

Online Reference: FLWSUPP 2409SIFOInsurance — Personal injury protection — Coverage — Emergency medical condition — Under amendments to PIP statute requiring PIP insurer to pay benefits up to $10,000 if qualified medical provider has determined that claimant had emergency medical condition and limiting reimbursement to $2,500 if qualified provider has determined that claimant did not have emergency medical condition, insurer properly limited benefits to $2,500 where qualified provider has not determined that insured suffered emergency medical condition — No merit to argument that insurer was required to pay benefits up to $10,000 unless there was determination of absence of emergency medical condition — Deductible — PIP insurer properly applied statutory fee schedule that was clearly elected in policy to reduce medical provider’s bill before applying bill to deductible

FLORIDA HEALTH PROFESSIONALS GROUP a/a/o Sifontes, Idreinis, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE-15-002261 (55). February 17, 2016. Confirmed on Rehearing August 29, 2016. On Motion for Rehearing August 29, 2016. Daniel J. Kanner, Judge. Counsel: Kelly M. Arias and Ducarmel Saint Louis, Arias Law Group, Hollywood, for Plaintiff. Patrick J. Gerace and Dana J. Girardi, Progressive PIP House Counsel, Fort Lauderdale, for Defendant.

ORDER GRANTING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT ANDDENYING PLAINTIFF’S MOTION FOR PARTIALSUMMARY JUDGMENT AND CROSS MOTIONFOR FINAL SUMMARY JUDGMENT

THIS CAUSE having come on to be heard on January 13, 2016, on Defendant’s Motion for Final Summary Judgment With Memorandum of Law Regarding Emergency Medical Condition; Plaintiff’s Cross Motion for Final Summary Judgment; and Plaintiff’s Motion for Partial Summary Judgment Regarding Misapplication of the Policy Deductible and Defendant’s Response in Opposition, and after hearing argument of counsel, the Court grants Defendant’s Motion for Final Summary Judgment, and denies Plaintiff’s Motion for Partial Summary Judgment and Plaintiff’s Cross Motion for Final Summary Judgment based on the following findings of fact and conclusions of law:

I. FINDINGS OF FACT

FLORIDA HEALTH PROFESSIONALS GROUP, (hereinafter “Plaintiff’) filed the instant action for payment of Personal Injury Protection (PIP) benefits on behalf of the alleged assignor, Idreinis Sifontes, which pertains to a policy of insurance issued by the Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY (hereinafter “Defendant” or “Progressive”) and an automobile accident that occurred on February 5, 2013.

At the time of the accident, Idreinis Sifontes (hereinafter “Claimant”) was covered under a policy of insurance (hereinafter “policy”) issued by the Defendant which provided PIP benefits for covered persons in accordance with the Florida Motor Vehicle No-Fault Law, 627.736, F.S., (as amended 2012). The policy contained a $1,000.00 deductible.

Following the alleged accident, Idreinis Sifontes sought treatment from various medical providers for injuries allegedly sustained as a result of the accident and the Defendant received medical bills for reimbursement. Among the medical bills received, were bills from the Plaintiff for dates of service February 6, 2013 to June 5, 2013.

The Defendant received and processed the medical bills as follows:

a. The first bill the Defendant received for this claim was from Plaintiff, for dates of service 02/06/2013-02/19/2013, in the amount of $3,030.00. The Defendant received this bill on or about February 23, 2013. The Defendant reduced the charges to the covered amount under the policy of insurance and in accordance with the Florida Motor Vehicle No-Fault Law, F.S. 627.736(5)(a)(1)-(5), to $2,788.52.¹ The Defendant then applied the elected $1,000.00 policy deductible to the covered amount for Plaintiff’s bills under the policy. The Defendant issued payment in the amount of $1,430.82, which was eighty (80%) percent of the allowed amount after application of the policy deductible.

b. On or about March 25, 2013, the Defendant received the second bill on the claim from YH Imaging, Inc. in the amount of $2,325.00. The Defendant reduced the charges to the covered amount in accordance with the Florida Motor Vehicle No-Fault Law, F.S. 627.736(5)(a)(1)-(5), and the policy of insurance to $378.86. The Defendant then issued payment to YH Imaging, Inc., in the amount of $303.09, which was eighty (80%) percent of the allowed amount.

c. On or about March 29, 2013, the Defendant received the third bill on the claim from Plaintiff for dates of service 02/21/2013-03/18/2013 in the amount of $4,450.00. The Defendant reduced the charges to the covered amount, in accordance with the Florida Motor Vehicle No-Fault Law, F.S. 627.736 (5)(a)(1)-(5), and the policy of insurance to $957.61. The Defendant issued payment to Plaintiff in the amount of $766.09, which was the remaining benefits available under the policy for the Claimant’s Non-Emergency Medical Condition claim, thus exhausting all $2,500.00 in available PIP benefits for the subject claim.²

d. Thereafter, Defendant received additional bills from Plaintiff. Defendant notified Plaintiff that said charges were not reimbursable as the patient reached the $2,500.00 available in personal injury protection benefits for a non-emergency medical condition.

Defendant’s policy at issue contained Endorsement Form A085 FL (05/12), filed as part of Christina Barrow’s affidavit, which specifically states the following:

The maximum reimbursement for services and care is limited to $2,500, unless it has been determined that the injured person had an emergency medical condition. That determination can affirmatively be made only by a physician or physician assistant licensed under chapter 458 or 459, a dentist licensed under chapter 466, or an advanced registered nurse practitioner licensed under chapter 464, and further can be made only if no physician or physician assistant licensed under chapter 458 or 459, no chiropractic physician licensed under chapter 460, no dentist licensed under chapter 466, and no advanced registered nurse practitioner licensed under chapter 464 has determined that the injured person did not have an emergency medical condition. [Emphasis in original]

Endorsement Form A085 FL (05/12) and Florida Statute § 627.732(16) both specifically define “emergency medical condition” in the following manner:

a medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following: (a) serious jeopardy to patient health; (b) serious impairment to bodily functions; or (c) serious dysfunction of any bodily organ or part.

See § 627.732(16), Fla. Stat. (2013) and Policy.

The Defendant reviewed and adjusted the medical bills received for this claim in accordance with the terms and conditions of the policy and the applicable provisions of the Florida Motor Vehicle No-Fault Law. Progressive limited reimbursement to $2,500.00 because Defendant did not receive, nor do the medical records reflect, an emergency medical condition determination from a physician licensed under chapter 458 or 459, a dentist licensed under chapter 466, a physician assistant licensed under chapter 458 or 459, or an advanced registered nurse practitioner licensed under chapter 464 (hereinafter “qualified provider”).

Furthermore, Plaintiff’s Complaint does not allege that the Claimant suffered an emergency medical condition. In fact, the Plaintiff stipulated in both its Cross Motion for Final Summary Judgment and during oral argument that there has been no determination by a qualified provider under F.S. 627.736(1)(a)(3) that the Claimant suffered an Emergency Medical Condition (EMC) as a result of the alleged accident.³

To date, the Court record contains no evidence whatsoever that Claimant suffered from an emergency medical condition as a result of the alleged subject accident. Thus, this fact is not disputed.

The Plaintiff argues that the Florida No-Fault Law provides $10,000.00 in PIP coverage by default, unless an emergency medical condition is disproven.

The Defendant asserts that the clear language of the subject policy and Florida Motor Vehicle No-Fault Law limits reimbursement of PIP benefits to Claimant to $2,500.00, unless there is an emergency medical condition determination from a qualified provider under Florida Statute 627.736. It is the Defendant’s contention that it properly limited PIP coverage to $2,500.00 in this case as there was no determination from a qualified provider that the Claimant suffered from an emergency medical condition (EMC) as a result of the alleged subject accident.

The second issue in this matter addressed in Plaintiff’s Motion for Partial Summary Judgment pertains to the application of the elected $1,000.00 policy deductible.

The Plaintiff asserts that the $1,000.00 policy deductible should apply to the total amount billed by the provider, regardless of whether that amount is a reasonable amount covered under the policy of insurance and in accordance with the Florida No Fault Law.

It is the Defendant’s contention that the elected $1,000.00 policy deductible can only be applied to medical bills that are covered and allowed under the policy and the Florida No Fault Law. The Defendant also asserts alternatively that Plaintiff’s motion regarding the deductible is moot as the Defendant has paid out the full $2,500.00 in policy limits prior to the initiation of the instant lawsuit, and thus the Plaintiff is not entitled to any additional benefits under the policy.II. ANALYSISEmergency Medical Condition

This Court has previously decided three cases involving virtually identical facts. However, in this case there is still no EMC determination from a qualified provider. The Court re-adopts its previous position on this issue. As this Court has consistently ruled in its previous Orders:

When, read together, the reimbursement clauses of the statute have a clear meaning-reimbursement of the insured’s medical benefits is limited to $2500 in the absence of a determination that the patient had an emergency medical condition determined by a qualified provider. In the opinion of this court, no other reading of the statute makes sense. ⁴

Plaintiff’s argument in this case is the same argument that was previously addressed by this Court when it ruled that there is “[n]o merit to argument that insurer was required to pay benefits up to $10,000 unless there was determination of absence of emergency medical condition.”⁵ “The statute does not contain a default provision establishing the coverage limit when a qualified medical professional ‘makes no determination that the patient did not have an emergency medical condition’.”⁶

Twenty-one (21) courts, have now agreed with Defendant’s position that benefits are limited to $2,500.00, unless a qualified provider has determined that the claimant had an emergency medical condition. This includes seventeen (17) County Courts, two (2) Federal Courts, and the United States Court of Appeals for the Eleventh Circuit; several of which ruled on the Defendant’s specific policy language at issue in this case.⁷

In the consolidated appeal of the Federal cases of Robbins v. Garrison Prop. & Cas. Ins. Co., and Enivert v. Progressive Select Ins., The United States Court of Appeals for the Eleventh Circuit affirmed the district court rulings and held that:

The Florida legislature sought to reduce fraudulent claims by making the full $10,000 amount of benefits available only to those insured’s who suffered severe injuries, a restriction defined into the term ‘emergency medical’. . . Allowing an insured to escape that restriction on the higher limit would defeat the legislative intent and policy behind the amendments, which we are bound to honor.⁸

This Court upholds its previous rulings and maintains its position that “when read together, the reimbursement clauses of the statute have a clear meaning — reimbursement of the insured’s medical benefits is limited to $2,500.00 in the absence of a determination that the patient had an emergency medical condition as determined by a qualified provider. In the opinion of this court, no other reading of the statute makes sense.”⁹

Progressive’s policy of insurance clearly allows Defendant to limit coverage for PIP benefits to $2,500.00 when there is no emergency medical condition determination from a qualified provider under the statute. As such, there was no statutory violation and there was no breach of contract. The Defendant properly limited reimbursement to $2,500.00 in this case as there is no EMC determination from a qualified provider.Deductible Application

The second issue pertains to the application of the elected $1,000.00 policy deductible. As previously stated herein, the Plaintiff argues that the $1,000.00 policy deductible should apply to the total amount billed by the provider, regardless of whether that amount is deemed to be a reasonable amount covered under the policy of insurance and in accordance with the Florida No Fault Law.

The Defendant asserts that the elected $1,000.00 policy deductible can only be applied to medical bills that are covered/allowed under the policy and the Florida No Fault Law. The Defendant also asserts alternatively that Plaintiff’s motion is moot as the Defendant has paid out the full $2500.00 in policy limits prior to the initiation of the instant lawsuit, and thus the Plaintiff is not entitled to any additional benefits under the policy.

Florida Statute Section 627.739(2) states:

(2) Insurers shall offer to each applicant and to each policy holder, upon the renewal of an existing policy, deductibles, in amounts of $250, $500, and $1,000. The deductible amount must be applied to 100 percent of the expenses and losses described in s. 627.736. After the deductible is met, each insured is eligible to receive up to $10,000 in total benefits described in s. 627.736(1). However, this subsection shall not be applied to reduce the amount of any benefits received in accordance with s. 627.736(1)(c). [Emphasis Added].

The Defendant’s policy contained Policy Endorsement Form A085 FL (05/12). The pertinent portion of Defendant’s A085 Endorsement states as follows:

When a deductible applies, the deductible will be applied to 100% of the expenses and losses covered under Personal Injury Protection Coverage. [Emphasis Added]

The policy at issue clearly states in no uncertain terms that the deductible will be applied to the expenses and losses covered under the PIP coverage portion of the policy. Because the Defendant clearly and unambiguously states in its policy endorsement that it will utilize the fee schedules and payment methodologies found in § 627.736(5)(a)(1)-(5), F.S., the insured and insured’s medical providers were put on notice of the Defendant’s method of applying the deductible. In the case at hand, the Defendant applied the $1,000 elected policy deductible to 100% of the covered expenses and losses under the policy in accordance with the Florida No Fault Statute.

The Plaintiff cites to Section 627.739(2), F.S., to argue that the deductible must apply to 100% of the total amount billed. However, the Plaintiff fails to read the Statute and policy language in its entirety. Specifically, the Plaintiff ignores the language “expenses and losses described in section 627.736.” Thus, this Court finds that Plaintiff’s position fails to adequately take into account the complete language of Section 627.739, F.S. and the required cross-reference to Section 627.736, F.S.

The plain language of § 627.739, F.S., does not state that the deductible amount must be applied to 100 percent of the total charges billed by the provider. Such a reading would require this Court to add words to the statute. “[This] Court is not at liberty to add words to statutes that were not placed there by the legislature; to do so, would be an abrogation of legislative power.” Bay Holdings, Inc. v. 2000 Island Blvd. Condo. Ass’n., 895 So. 2d 1197 (Fla. 3rd DCA 2005) [30 Fla. L. Weekly D547c]; Knowles v. Beverly Enterprises, 898 So. 2d 1,11, 2004 WL 2922097, slip op. at 11 (Fla. December 16, 2004) [29 Fla. L. Weekly S788a], citing Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999); Donato v. American Tel. & Tel. Co., 767 So. 2d 1146, 1150 (Fla. 2000) [25 Fla. L. Weekly S44a].

The interpretation and application requested by Plaintiff would essentially eliminate any reasonableness determination as to the expenses submitted by health care providers, which has long been a part of the PIP statutes. Garrison Property and Casualty Insurance Company v. New Smyrna Imaging, LLC a/a/o Megan McClanahan, Case No. 2011-SC-001593, Appeal No. 13-03-AP (18th Cir. App. 2015) [23 Fla. L. Weekly Supp. 708a]. Furthermore, if the Court adopted Plaintiff’s method and applied the deductible to the total charges submitted by the provider without regard to whether the charges are reasonable — it would result in the deductible not being applied uniformly or in accordance with the plain language of sections 627.739(2) and 627.736 of the Florida Statutes.

Courts have long held that a “. . . statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts”. Jones v. ETS of New Orleans, Inc., 793 So.2d 912, 914-15 (Fla. 2001) [26 Fla. L. Weekly S549a]. “Statutory phrases are not to be read in isolation, but rather within the context of the entire section.” Id. “It is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole. Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992). “Courts are not to read statutory language in isolation; it must be taken in context, so that its meaning may be illuminated in the light of the statutory scheme of which it is a part. The doctrine of in pari materia requires courts to construe statutes relating to the same subject matter together in order to harmonize them and to give effect to the Legislature’s intent.” O’Hara v. State, 964 So. 2d 839 (Fla. 2nd DCA 2007) [32 Fla. L. Weekly D1707a].

As stated by the Honorable Judge Arlene Backman in the case of Goldcoast Physicians Center a/a/o Charles Bradford) v. Garrison,

The plain language of the statute says that a PIP deductible applies to “100% of the expenses and losses described in 627.736′. . . . . .Therefore, the Court must follow the cross-reference and examine the language of section 627.736 in order to determine what expenses and loses are ‘described in s.627.736′ ” [emphasis in original] ¹⁰

Thus, in order to adequately address the interplay of sections 627.739(2) and 627.736, F.S., this Court must look at what is meant by “expenses and losses described in s. 627.736.” in order to apply the deductible to 100 percent of said “expenses and losses.”

Section 627.736, F.S., contains several references to expenses, almost all of which are described as or used in the context of reasonable expenses or expenses “covered by the policy.” Thus, when read together, § 627.739(2) and § 627.736, F.S., require that a PIP deductible be applied to 100 percent of the reasonable and necessary medical expenses, or those expenses covered by the policy. Garrison Property and Casualty Insurance Company v. New Smyrna Imaging, LLC a/a/o Megan McClanahan, Case No. 2011-SC-001593, 13-03-AP (18th Cir. App. 2015) [23 Fla. L. Weekly Supp 708a]; Progressive American Insurance Company v. Munroe Regional Health System, Inc. d/b/a Munroe Regional Medical Center a/a/o Kayla Christopher, Case No. 14-11-AP, Consolidated with: 14-13-AP & 14-14-AP (18th Cir. App. 2015) [23 Fla. L. Weekly Supp. 707a].

Section 627.736, F.S., provides two means for determining what is a reasonable and necessary medical expense. § 627.736, Fla. Stat.; Geico Gen. Ins. Co. v. Virtual Imaging Svcs., Inc., 141 So. 3d 147 (Fla. 2013). Section 627.736(5)(a) sets forth several factors to consider in determining the reasonableness of medical expenses. Section 627.736(5)(a)(1)-(5) (previously (5)(a)(2)), states that “[t]he insurer may limit reimbursement to 80 percent of [a defined] schedule of maximum charges.” § 627.736, Fla. Stat. In order to pay in accordance with this fee schedule limitation, the insurer must clearly and unambiguously select that payment methodology such that the insured and medical providers are aware of it. Geico, 141 So. 3d at 160. Therefore, if the insurer has clearly stated its intention to use the fee schedule, the deductible can be applied to 100 percent of the reasonable expenses found in the fee schedules, as referenced in § 627.736, Fla. Stat. Garrison Property and Casualty Insurance Company v. New Smyrna Imaging, LLC a/a/o Megan McClanahan, Case No. 2011-SC-001593, Appeal No. 13-03-AP (18th Cir. App. 2015) [23 Fla. L. Weekly Supp. 708a].

Progressive’s Policy and Endorsement clearly state Progressive’s intention to utilize the fee schedules and payment methodologies found in § 627.736(5)(a)(1)-(5). The same policy and endorsement at issue in this lawsuit was previously analyzed by the 18th Judicial Circuit in the case of Progressive American Insurance Company vs. Munroe Regional Medical Center a/a/o Kayla Christopher [23 Fla. L. Weekly Supp. 707a]. In that matter Judge Recksiedler held that “. . . the policy at issue contained a proper endorsement allowing Progressive to utilize the fee schedule.” Progressive American Insurance Company v. Munroe Regional Health System, Inc. d/b/a Munroe Regional Medical Center a/a/o Kayla Christopher, Case No. 14-11-AP, Consolidated with: 14-13-AP & 14-14-AP (18th Cir. App. 2015) [23 Fla. L. Weekly Supp. 707a].

In the instant matter, the Defendant properly determined the reasonable covered expenses and losses pursuant to the fee schedules and payment methodologies as outlined in Defendant’s policy of insurance and Florida Statute 627.736(5)(a)(1)-(5). The Defendant applied the elected policy deductible to one hundred (100%) percent of the Plaintiff’s covered medical bills. After application of the deductible, the Defendant paid Plaintiff eighty (80%) percent of the remaining allowed amount in accordance with the terms and conditions of the policy and the PIP Statute. This Court finds that the Defendant’s application of the policy deductible to the covered amount was in agreement with the statutory language of Sections 627.739(2) and 627.736, F.S.

The Court’s analysis is consistent with the case law which holds that the deductible can only apply to covered loss. “The notion that a deductible could be applied to loss that is not covered by the policy is fundamentally unreasonable.” General Star Indem. Co. v. West Florida Village Inn, Inc., 874 So. 2d 26 (Fla. 2nd DCA 2004) [29 Fla. L. Weekly D348a].

This position is further supported by the analysis of the 18th Judicial Circuit. In Garrison Property and Casualty Insurance Company v. New Smyrna Imaging LLC, Case No 13-03-AP (18th Cir. App. January 12, 2015) [23 Fla. L. Weekly Supp. 708a], Judge Galluzzo held:

“in the current case, the policy issued by Garrison clearly defines ‘reasonable fees’ in accordance with the fee schedule language of 627.736(5)(a)1. In calculating the payment owed to NSI, Garrison determined the reasonable expense per the fee schedule. Garrison then applied the deductible to that amount, reduced it to the allowed 80% and paid that sum to NCI. This Court finds that this was in agreement with the statutory interpretation outlined above.” Id.

In Progressive American Insurance Company v. Munroe Regional Health System, Inc., d/b/a Munroe Regional Medical Center a/a/o Kayla Christopher Munroe Regional Health System, Inc. [23 Fla. L. Weekly Supp. 707a], the 18th Judicial Circuit issued a ruling on Progressive’s Policy and Endorsement and held that “when read together, Sections 627.739 and 627.736 require that a PIP deductible be applied to 100 percent of the reasonable and necessary medical expenses, or those expenses covered by the Policy.”¹¹ There, the court further held that Progressive’s policy at issue contained a proper endorsement allowing Progressive to utilize the fee schedule and thus Progressive properly applied the deductible to that amount. See Id.

In a recent decision, Broward County Court Judge Honorable Robert Lee upheld the analysis of the 18th Judicial Circuit, stating that:

The Court has reviewed and carefully considered the conflicting decisions, both positions of which are legally defensible. However the Court believes the analysis set forth in the New Smyrna Imaging case to be better reasoned.¹²

Plaintiff cites to various county court orders addressing other insurance carriers’ policy language or out dated policy language. However, none of these orders address Progressive’s policy language as amended by itsA085 Endorsement. Furthermore, the cases Plaintiff references are instances in which the court determined that the insurance carrier failed to clearly incorporate the fee schedules and payment methodologies into their policy. That is not the situation here, as Progressive’s policy clearly and unambiguously adopts the fee schedules and payment methodologies outlined in section 627.736(5)(a)(1)-(5) of the Florida Statutes.¹³

Moreover, Plaintiff relies upon twenty-five year old case law that cites to the old version of 627.739(2); that existed prior to the 2003 statutory amendment. However, these cases further support this Court’s interpretation of the current Statute.

Florida Statute 627.739(2) (1975) originally stated:

Insurers shall offer to each applicant and to each policy holder, deductibles, in amounts of $250, $500, $1,000 and $2,000, such amount to be deducted from the benefits otherwise due each person subject to the deduction.

In 1989, the Supreme Court of Florida held that the original language of § 627.739(2), F.S., allowed the insurance carrier to apply eighty (80%) percent of (100%) the amount due under the PIP policy to the deductible. See Govan v. International Bankers Ins. Co., 521 So. 2d 1086 (Fla. 1988); International Bankers Ins. Co. v. Arnone, 552 So. 2d 908 (Fla. 1989).

This interpretation of the prior version of § 627.739(2), F.S., necessitated the change to current language which controls the subject matter:

(2) Insurers shall offer to each applicant and to each policy holder, upon the renewal of an existing policy, deductibles, in amounts of $250, $500, and $1,000. The deductible amount must be applied to 100 percent of the expenses and losses described in s. 627.736. After the deductible is met, each insured is eligible to receive up to $10,000 in total benefits described in s. 627.736(1). However, this subsection shall not be applied to reduce the amount of any benefits received in accordance with s. 627.736(1)(c). [Emphasis Supplied]

In this Court’s opinion, the 2003 amendment to § 627.739(2), F.S., clarifies that the legislature intends for PIP carriers to apply policy deductibles to one hundred (100%) percent of expense(s) and loses described in F.S. 627.736, and not eighty (80%) percent of one-hundred (100%) percent as it was done prior to the latest amendments. This clarification does not mean that PIP carriers are required to apply the deductible to 100% of the total amount billed by a medical provider regardless of whether that amount is a reasonable medical expense. To do so would require PIP carriers to apply losses that are not covered under the policy or the Florida PIP Statute to the deductible, which is illogical and in contradiction to well-established case law. See General Star Indem, Co. v. West Florida Village Inn, Inc., 874 So. 2d 26 (Fla. 2nd DCA 2004) [29 Fla. L. Weekly D348a].

This Court finds that the Defendant’s application of the policy deductible was in agreement with the statutory interpretation outlined above. As Progressive properly applied the deductible, there is no statutory violation and there is no breach of contract.

Furthermore, even assuming the Court’s analysis on the application of the policy deductible is misplaced, this Court finds the Plaintiff’s argument to be without merit or consequence as applied to the particular facts of this case as it has no bearing on the outcome. The Defendant paid out the full $2,500 in available benefits for this claim. The amount Plaintiff is claiming it was underpaid ($193.18) on the first bill due to the application of the deductible is far less than the amount Plaintiff was paid on its next bill ($766.09), which exhausted the available benefits. Here this amounts to a distinction without a difference. Either way, Plaintiff would not have been paid any more than the amount it was paid in this claim and Plaintiff’s argument regarding the deductible application would not change the outcome of this case: all $2,500 in benefits have been paid. “The reason an insurer that has paid out the policy limits may not be held liable on a claim for disputed benefits is that it has already fulfilled its contractual obligation to pay a given amount of benefits, and it cannot be required to pay more than it agreed to pay under the policy. Once the suit for disputed benefits dissolves, there can be no judgment that the disputed benefits are due. It therefore follows that, if disputed benefits cannot be deemed due, they cannot be deemed overdue.” Sheldon v. United Servs. Auto. Ass’n, 55 So. 3d 593, 595-96 (Fla. Dist. Ct. App. 2010) [36 Fla. L. Weekly D23a].III. CONCLUSION OF LAW

This Court finds that there are no genuine issues of material fact in this case and that the Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, is entitled to Final Summary Judgment as a matter of law. The Defendant properly limited reimbursement to $2,500 in this case as there is no emergency medical condition determination from a qualified provider.

Plaintiff’s Motion for Partial Summary Judgment regarding the deductible application is hereby denied. This Court finds that the Defendant’s application of the policy deductible was proper and in agreement with the statutory interpretation outlined above and Defendant’s policy of insurance. Furthermore, this Court finds the Plaintiff’s motion to be without merit or consequence as applied to the particular facts of this case since Defendant paid out the full $2,500 in available benefits.IV. FINAL JUDGMENT

It is hereupon,

ORDERED AND ADJUDGED that the Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY’S Motion for Final Summary Judgment and Memorandum of Law Regarding Emergency Medical Condition be and hereby is, GRANTED.

ORDERED AND ADJUDGED that Plaintiff, FLORIDA HEALTH PROFESSIONALS GROUP’S Cross Motion for Final Summary Judgment is hereby DENIED and Plaintiff, FLORIDA HEALTH PROFESSIONALS GROUP’S Motion for Partial Summary Judgment Regarding Misapplication of the Policy Deductible is hereby DENIED.

The Plaintiff, FLORIDA HEALTH PROFESSIONALS GROUP shall take nothing by this action and that the Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY shall go hence without day. The Court reserves jurisdiction to determine Defendant’s entitlement and amount of attorney fees and costs.

__________________

¹There is no dispute that the Defendant’s policy makes a clear and unambiguous election of the Fee Schedules found in F.S. 627.736 (5)(a)(1-5). Rather, Plaintiff is arguing whether the Fee Schedule reductions were properly applied to the charges applied to the deductible; Plaintiff’s first bill, which was the first bill submitted on this claim.

²It is undisputed that the Defendant paid $2,500.00 in medical benefits on this claim. See Paragraph 7 of Plaintiff’s Cross Motion for Final Summary Judgment filed December 18, 2015.

³See Paragraph 8 and Paragraph 24 Plaintiff’s Cross Motion for Final Summary Judgment filed December 18, 2015.

⁴See Pembroke Pines MRI, Inc. d/b/a DPI of Pembroke Pines a/a/o Steve Weinkle v. USAA Cas. Ins. Co., Case No. COCE 14000542 (55) (Fla. Broward Cty. Ct. October 17, 2014) [22 Fla. L. Weekly Supp. 448a]; Doc Tony Westside Chiropractic, LLC a/a/o Ada Santiago v. United Services Auto. Assc., Case No. COCE 14-000694-COCE (55) (Fla. Broward Cty. Ct. October 22, 2014) [22 Fla. L. Weekly Supp. 640a]; Pan Am Diagnostic Services, Inc. d/b/a Wide Open MRI a/a/o Austin Yengst v. Garrison Property and Cas. Ins. Co., Case No. COCE 14-011740 (55) (Fla. Broward Cty. Ct. March 31, 2015) [22 Fla. L. Weekly Supp. 1103a]

⁵See Doc Tony Westside Chiropractic, LLC a/a/o Ada Santiago, (Fla. Broward Cty. Ct. October 22, 2014) [22 Fla. L. Weekly Supp. 640a] (Order Granting Summary Judgment and Final Judgment for Defendant).

⁶See Pembroke Pines MRI, Inc. d/b/a DPI of Pembroke Pines a/a/o Steve Weinkle, (Fla. Broward Cty. Ct. October 17, 2014) [22 Fla. L. Weekly Supp. 448a] citing to Robbins v. Garrison Property & Cas. Ins. Co., Case No. 13-81259 (S.D. Fla. July 18, 2014) (holding that the insurer’s “interpretation gives effect to all of the statute’s provisions, where Robbins’s interpretation would lead to inconsistences within the statute”)

⁷Enivert v. Progressive Select Ins. Co., Case No. 14-CV-80279 (S.D. Fla. July 23, 2014) [25 Fla. L. Weekly Fed. D123a] (Order Granting Defendant’s Motion to Dismiss); Robbins v. Garrison Prop & Cas. Ins. Co., Case No. 13-81259 (S.D. Fla. July 18, 2014) [25 Fla. L. Weekly Fed. D125a] (Order Granting Defendant’s Motion to Dismiss); Robbins v. Garrison Prop. & Cas. Ins. Co., and Enivert v. Progressive Select Ins. Co., No. 14-13725, D.C. Docket No. 9:14-cv-80279-KLR (December 30, 2015) (Consolidated Appeal — In the United States Court of Appeals for the Eleventh Circuit, affirming the district court rulings dismissing both lawsuits); Pembroke Pines MRI, Inc. d/b/a DPI of Pembroke Pines ala/o Steve Weinkle v. USAA Cas. Ins. Co., Case No. COCE 14-000542 (55) (Fla. Broward Cty. Ct. October 17, 2014) [22 Fla. L. Weekly Supp. 448a] (Order Granting Defendant’s Motion for Final Summary Judgment and Final Judgment for Defendant); Doc Tony Westside Chiropractic, LLC ala/o Ada Santiago v. United Services Auto. Assc., Case No. COCE 14-000694-COCE (55) (Fla. Broward Cty. Ct. October 22, 2014) [22 Fla. L. Weekly Supp. 640a] (Order Granting Summary Judgment and Final Judgment for Defendant); Pan Am Diagnostic Services, Inc. d/b/a Wide Open MRI a/a/o Austin Yengst v. Garrison Property and Cas. Ins. Co., Case No. COCE 14-011740 (55) (Fla. Broward Cty. Ct. March 31, 2015) [22 Fla. L. Weekly Supp. 1103a] (Order Granting Summary Judgment and Final Judgment for Defendant); Physicians Medical Center Northside, Inc. a/a/o Karina Cora v. United Services Auto. Assc. a/k/a USAA, Case No. COCE 14-001413 (53) (Fla. Broward Cty. Ct. September 26, 2014) (Order Granting Summary Judgment and Final Judgment for Defendant); A-1 Imaging Centers, LLC a/a/o Marissa Kim v. USAA General Indemnity Company, Case No. COCE 14-006072 (56) (Fla. Broward Cty. Ct. March 5,2015) [22 Fla. L. Weekly Supp. 96la] (Order Granting Summary Judgment to Defendant); Southside Chiropractic Centre, Inc. a/a/o Terry Miller v. USAA General Indemnity Company, Case No. COCE 13-020731 (56) (Fla. Broward Cty. Ct. June 10, 2014) (Order Granting Summary Judgment and Final Summary Judgment for Defendant); Dorsal Rehab, Inc. f/k/a United Diagnostic & Rehab Associates a/a/o Deluise Skylar v. Progressive American Insurance Company, Case No. 14-013913 COCE (56) (Fla. Broward Cty. Ct. September 2, 2015) [23 Fla. L. Weekly Supp. 490b] (Order Granting Defendant’s Motion for Final Summary Judgment); Florida Spine & Joint Institute, LLC a/a/o Walter Koos v. United Services Auto. Assc., Case No. COCE 14-002273 (54) (Fla. Broward Cty. Ct. March 11, 2015) [22 Fla. L. Weekly Supp. 957a] (Order Denying Plaintiff’s Motion for Summary Judgment and Granting Defendant’s Motion for Summary Judgment); C&R Imaging of Jacksonville a/a/o Terry Miller v. USAA General Indemnity Company, Case No. COSO 14-002624 (60) (Fla. Broward Cty. Ct. December 3, 2014) (Order Granting Defendant’s Motion for Final Summary Judgment); Precision Diagnostic, Inc., d/b/a Precision MRI a/a/o Jessica Allen v. United Services Auto. Assc., Case No. CONO 14-001263 (72) (Fla. Broward Cty. Ct. August 14, 2014) (Order Granting Defendant’s Motion for Final Summary Judgment); Douglas Rapid Rehab, P.A. d/b/a Douglas Chiropractic Center a/a/o Ronzal Blaize v. Progressive American Insurance Company, Case No. CONO 14005017 (72) (Fla. Broward Cty. Ct. August 19, 2015) [23 Fla. L. Weekly Supp. 482a] (Order Denying Plaintiff’s Motion to Abate/Stay and/or for Extension of Time and Granting Defendant’s Amended Motion for Final Summary Judgment); Alternative Medical Center a/a/o Wilner Henrilus v. Progressive American Insurance Company, Case No. CONO 15-000632 (71) (Fla. Broward Cty. Ct. July 28, 2015) [23 Fla. L. Weekly Supp. 372a] (Order Granting Defendant’s Motion for Final Summary Judgment); Orthopedic Specialists LLP a/a/o Colleen Fontana v. USAA Casualty Insurance Company, Case No. 502013SC013901)XXXXMB (Fla. Palm Beach Cty. Ct. July 3, 2014) (Order Granting Defendant’s Motion for Summary Judgment); Medical Center of The Palm Beaches d/b/a Central Palm Beach Physicians & Urgent Care, Inc. a/a/o Carmen Santiago v. USAA Casualty Insurance Company, Case No. 502013SC012523XXXXMB (Fla. Palm Beach Cty. Ct. August 20, 2014) [22 Fla. L. Weekly Supp. 279a] (Order Granting Defendant’s Motion for Final Summary Judgment and Certificate of Question of Great Public Importance); L. Lee Smith, D.C., P.A., a/a/o Petrina Easton v. USAA Casualty Insurance Company, Case No. 502014CC005325XXXXSB (Fla. Palm Beach Cty. Ct. October 21, 2014) [22 Fla. L. Weekly Supp. 445a] (Order Granting Defendant’s Motion for Final Summary Judgment and Certificate of Question of Great Public Importance); Gold Coast Chiropractic Center, P.A. a/a/o Fevrier Kenson v. Progressive Select Insurance Company, Case No. 502014SC007673XXXXSBRD (Fla. Palm Beach Cty. Ct. July 28, 2015) [23 Fla. L. Weekly Supp. 366a] (Order Denying Plaintiff’s Motion to Abate/Stay and/or For Extension of Time and Granting Defendant’s Motion for Final Summary Judgment); Millenia Chiropractic, LLC a/a/o Anocillia Etienne v. Progressive American Insurance Company, Case No. 2014-SC-002743-O (Fla. Orange Cty. Ct. December 4, 2015) (Order Granting Defendant’s Motion for Final Summary Judgment).

⁸ See Robbins v. Garrison Prop. & Cas. Ins. Co., and Enivert v. Progressive Select Ins. Co., No. 14-13725, D.C. Docket No. 9:14- cv-80279-KLR (December 30, 2015) (Consolidated Appeal — In the United States Court of Appeals for the Eleventh Circuit, affirming the district court rulings dismissing both lawsuits) citing to Staff of S. anking & Ins. Comm., H.B.119 B. Summary (Fla. 2012) and citing to Byrd v. Richardson-Greenshields Sec., Inc. 552 So.2d 1099, 1102 (Fla. 1989).

⁹ Pembroke Pines MRI, Inc. d/b/a DPI of Pembroke Pines a/a/o Steve Weinkle v. USAA Cas. Ins. Co., Case No. COCE 14-000542 (55) (Fla. Broward Cty. Ct. October 17, 2014) [22 Fla. L. Weekly Supp. 448a]; Doc Tony Westside Chiropractic, LLC a/a/o Ada Santiago v. United Services Auto. Assc., Case No. COCE 14-000694-COCE (55) (Fla. Broward Cty. Ct. October 22, 2014) [22 Fla. L. Weekly Supp. 640a]; and Pan Am Diagnostic Services, Inc. d/b/a Wide Open MR1 a/a/o Austin Yengst v. Garrison Property and Cas. Ins. Co., Case No. COCE 14-011740 (55) (Fla. Broward Cty. Ct. March 31, 2015) [22 Fla. L. Weekly Supp. 1103a].

¹⁰ Goldcoast Physicians Center (a/a/o Charles Bradford) v. Garrison Property and Casualty Insurance Company, 20 Fla. L. Weekly Supp. 711a (Fla. 17th Judicial Circuit Broward Count Crt. April 29, 2013)(holding that “the deductible was properly applied to the amount due at 200% of the applicable Medicare Part B or worker’s compensation fee schedule”.)

¹¹See Progressive American Insurance Company v. Munroe Regional Health System, Inc., d/b/a Munroe Regional Medical Center a/a/o Kayla Christopher, Appellate Number 14-11-AP (Fla. 18th Cir. App. Div. April 17, 2015) [23 Fla. L. Weekly Supp. 707a].

¹²See Bethesda Memorial Hospital (Mareith Dannaly) v. Geico, 22 Fla. L. Weekly Supp. 1097a (17th Jud. Cir. Broward County April 14, 2015).

¹³See Id.

__________________ORDER CONFIRMING FINAL SUMMARYJUDGMENT FOR DEFENDANT

THIS CAUSE having come on to be heard on Plaintiff’s Motion for Rehearing Regarding Order Granting Defendant’s Motion for Final Summary Judgment and Denying Plaintiff’s Motion for Partial Summary Judgment and Cross Motion for Final Summary Judgment entered on February 17, 2016 and Incorporated Memorandum of Law, and the Court having heard argument of counsel, reviewed the record evidence, considered the memorandums of law filed by both parties, and being otherwise dually advised in the premises, it is hereupon,

ORDERED AND ADJUDGED that after holding Rehearing of this matter on July 28, 2016, Plaintiff’s motion and the relief requested therein be, and the same is hereby DENIED. The Court makes the following findings of fact and conclusions of law:

I. BACKGROUND, PROCEDURAL HISTORY, & FINDINGS OF FACT

On January 13, 2016, this Honorable Court held hearing on Defendant’s Motion for Final Summary Judgment with Memorandum of Law Regarding Emergency Medical Condition; Plaintiff’s Cross Motion for Final Summary Judgment; and Plaintiff’s Motion for Partial Summary Judgment Regarding Misapplication of the Policy Deductible and Defendant’s Response in Opposition. On February 17, 2016, this Court entered Final Summary Judgment for the Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, denied Plaintiff’s Cross Motion for Final Summary Judgment and denied Plaintiff’s Motion for Partial Summary Judgment. The Court hereby reaffirms the Findings of Fact; Analysis on Emergency Medical Condition and Deductible Application; Conclusions of Law; and Final Judgment in favor of the Defendant in the February 17, 2016 Order and incorporates same herein. The Court addresses the issues raised in Plaintiff’s motion for rehearing as follows:

On March 3, 2016, Plaintiff filed its’ Motion for Rehearing Regarding Order Granting Defendant’s Motion for Final Summary Judgment and Denying Plaintiff’s Motion for Partial Summary Judgment and Cross Motion for Final Summary Judgment entered on February 17, 2016; and Incorporated Memorandum of Law. Plaintiff raised for the first time in this litigation in its Motion for Rehearing the issue of whether the provisions of the amended PIP Statute should apply to this case. On March 16, 2016, this Court entered an order permitting the Plaintiff’s Motion for Rehearing to be scheduled pursuant to Broward County Local Administrative Order 2010-47-Gen. The issues were fully briefed by both parties and Plaintiff’s Motion for Rehearing was held on July 28, 2016. This Court heard extensive arguments from both sides during this specially set hearing addressing whether the provisions of the amended PIP Statute; specifically, the Emergency Medical Condition provisions of F.S. 627.736(1)(a)(3) & (1)(a)(4) incorporated into the policy of insurance, should apply to the instant claim. No additional evidence or testimony was filed by either party. Based on the controlling law as applied to the contract of insurance in this case, this Court finds that the incorporated provisions of F.S. 627.736 (1)(a)(3) & (1)(a)(4) addressing the existence or non-existence of an Emergency Medical Condition were properly applied in this case.

II. THE POLICY OF INSURANCE CONTROLS

In construing insurance policies, courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect. West’s F.S.A. § 627.419(1); Barcelona Hotel, LLC v. Nova Cas. Co., 57 So. 3d 228 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D458a]; Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla. 2000) [25 Fla. L. Weekly S211a] (holding that the court “must read [the pertinent] clause in conjunction with the entire policy, including the . . . coverage provision and the policy declarations”); see also § 627.419(1), Fla. Stat. (2010); State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1075 (Fla.1998) [23 Fla. L. Weekly S527a]; Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Underwriters at Lloyd’s, London, 971 So.2d 885, 888 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D2827b]. When the language of an insurance policy is clear and unambiguous, a court must interpret it according to its plain meaning, giving effect to the policy as it was written. Barcelona Hotel, LLC, 57 So. 3d 228 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D458a]; E. Fla. Hauling, Inc. v. Lexington Ins. Co., 913 So.2d 673, 676 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D2257a]; see also Nova Cas. Co., 39 So.3d at 436. This Court finds F.S. 627.419. Construction of polices, instructive:

(1) Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any application therefor or any rider or endorsement thereto. Fla. Stat. Ann. § 627.419.

At the time of the alleged loss on February 5, 2013, Idreinis Sifontes was covered under Progressives’ Policy 9610A FL (10/05), policy number 48470339. The effective dates of the policy were November 14, 2012 through May 14, 2013. As outlined in the policy declarations page, the policy contained endorsements A041 FL (06/11), A085 FL (05/12) and Z357 (10/10). “The contract is modified by form A041 FL (06/11), A085 (05/12) and Z357 (10/10)”. In other words, the subject policy of insurance contained two endorsements which directly informed the insured of the payment limitations for PIP claims submitted throughout the policy period.¹ A plain reading of the policy and the two policy endorsements together clearly leads to the conclusion that form A041 FL (06/11) provided direct notice to the insured of the payment limitations which would be applied to losses occurring between November 14, 2012 and December 31, 2012, and form A085 (05/12) provided direct notice to the insured of the payment limitations which would be applied to losses occurring between January 1, 2013 and May 14, 2013. Both of these forms were listed on the policy declarations page and were included in the subject policy at the time of purchase on November 14, 2012. As such, both the insured and the insurer were fully aware of all material terms of this contract of insurance at the time the policy was purchased. An insurance contract “ ‘must be construed in accordance with the plain language of the policy.’ ” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.2d 528, 532 (Fla. 2005) [30 Fla. L. Weekly S633a] (quoting Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla. 2003) [28 Fla. L. Weekly S307d]).

III. THE FLORIDA STATUTES

On July 1, 2012, the Florida legislature enacted the amended PIP Statute, which contains the operative provisions applied in this case, F.S. 627.736(1)(a)(3) & (1)(a)(4) addressing the existence or non-existence of an Emergency Medical Condition in Florida PIP claims. The legislature chose to make these provisions apply beginning on January 1, 2013. Notably, in the same session the legislature enacted F.S. 627.7311 — Effect of law on personal injury protection policies. This statute states in no uncertain terms:

The provisions and procedures authorized in ss. 627.730-627.7405 shall be implemented by insurers offering policies pursuant to the Florida Motor Vehicle No-Fault Law. The legislature intends that these provisions and procedures have full force and effect regardless of their express inclusion in an insurance policy form, and a specific provision or procedure authorized in ss. 627.730-627.7405 shall control over general provisions in an insurance policy form. An insurer is not required to amend its policy form or to expressly notify providers, claimants, or insureds in order to implement and apply such provisions or procedures. F.S. 627.7311 (2012) (Emphasis Supplied).

Simply put, at the time the subject policy was purchased the amended PIP Statute was enacted but wasn’t to go into effect until January 1, 2013, (approximately 6 weeks after the policy was issued). There was no uncertainty for Progressive, its insureds, or medical providers with respect to when the provisions and procedures of the amended PIP Statute would be implemented. Further, Progressive clearly knew that its exposure and obligations with respect to reimbursement of PIP benefits would change come January 1, 2013, and it was entitled to contract around that change.

The Defendant argued that pursuant to F.S. 627.7311 and controlling Florida Supreme Court law it did not even have to amend its policy or provide any notice to the insured to implement F.S. 627.736(1)(a)(3) & (1)(a)(4) regarding the existence or non-existence of an Emergency Medical Condition for losses arising on or after January 1, 2013. “Florida law provides that where a contract is entered into on a matter surrounded by statutory limitations and requirements, the parties are presumed to have entered into such agreement with reference to the statute, and the statutory provisions become a part of the contract.” Grant v. State Farm Fire and Casualty Company, 638 So.2d 936 (Fla. 1994) (quoting Standard Accident Ins. Co. v. Gavin, 184 So.2d 229, 232 (Fla. 1st DCA 1966), cert. dismissed, 196 So.2d 440 (Fla. 1967). This Court finds it unnecessary to address this argument because Progressive did incorporate the provisions of the amended PIP Statute; specifically, F.S. 627.736(1)(a)(3) & (1)(a)(4) addressing Emergency Medical Condition(s) into the subject policy from inception by virtue of its’ A085 (05/12) endorsement. Similar to an escalation clause in any standard contract; here, Progressive advised the insured at the time the policy was purchased that on a specific date, January 1, 2013, the insured’s coverage for reimbursement of PIP benefits would change and conform exactly to the coverage provided for in the amended PIP Statute. Both parties were fully aware of these contractual terms and agreed to these terms at the time the contract of insurance was formed. Here, the loss occurred on February 5, 2013. Progressive received the claim and processed it in accordance with the applicable coverage reimbursement limitations outlined in the policy for non-emergency medical condition losses.² As such, Progressive fulfilled its contractual obligations to its insured exactly as promised in the subject policy. “If an insurance policy provision is clear and unambiguous, it should be enforced according to its terms whether it is a basic policy provision or an exclusionary provision.” Garcia v. Fed Ins. Co., 969 So.2d 288 (Fla. 2007) [32 Fla. L. Weekly S657a].

IV. NO RETROACTIVE APPLICATION OF LAW

In support of its position Plaintiff relies on several decisions regarding retroactive application of law on insurance policies. Menendez v. Progressive Express Insurance Co., Inc., 35 So.3d 873 (Fla. 2010) (holding that statutory presuit notice provision was substantive and, thus, did not apply retroactively to insurance policy issued before statute was enacted); Hausler v. State Farm Mut. Auto. Ins. Co., 374 So.2d 1037 (Fla. 2d DCA 1979); Dewberry v. Auto-Owners Insurance Company, 363 So.2d 1077 (Fla. 1978); Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106 (Fla. 1996) [21 Fla. L. Weekly S102c]; Lumbermens Mut Cas. Co. v. Ceballos, 440 So.2d 612 (Fla. 3d DCA 1983). The Court must look at the facts of the cases cited by both parties and analyze the application of law in light of the specific language of the contract of insurance at issue in this case.

In the cases that the Plaintiff cites, the respective courts held that there was defective notice to the adverse party with respect to the specific statutory provision applied. All of these cases are distinguished factually from the present case. In the instant case, the parties built the specific statutory provisions at issue into the contract of insurance itself verbatim. “In making judgments concerning retroactivity of a statute, familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.” R.A.M. of S. Florida, Inc., v. WCI Communities, Inc., 869 So.2d 1210 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D761b].

In the instant matter, there was no retroactive application of law because there was no application of any new law to conditions that existed prior to the existence of that law. The conditions at issue here, the terms and conditions of the contract of insurance incorporating the provisions of the amended PIP Statute; specifically, F.S. 627.736 (1)(a)(3) & (1)(a)(4) addressing Emergency Medical Condition(s), were already in existence when the contract was formed between the parties. As both parties were aware of these material terms of the contract; specifically, that on January 1, 2013, the coverage for reimbursement of PIP benefits would change to conform to the amended PIP Statute, there was no application of new law to a previously formed contract. There was no retroactive application of law in this case because the law in question already existed and was built into the insurance policy as a material part of the contract. “A statute does not operate retrospectively merely because it is applied in a case arising from conduct antedating the statute’s enactment; rather, the court must ask whether the new statutory provision attaches new legal consequences to events completed before its enactment.” R.A.M. of S. Florida, Inc., 869 So. 2d 1210 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D761b] (Emphasis Supplied). See also “Therefore, the central focus of this Court’s inquiry is whether retroactive application of the statute ‘attaches new legal consequences to events completed before its enactment.’ ” Metropolitan Dade County, 737 So.2d at 499 (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S. Ct. 1483, 128 L.Ed. 2d 229 (1994)). Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010) [35 Fla. L. Weekly S81a] (Emphasis Supplied). In the instant matter, no events occurred before the enactment of amended PIP Statute on July 1, 2012. The formation of the contract between the parties around the provisions of the amended PIP Statute, the inception of the insurance policy, the alleged accident, the assignment of benefits, and the submission and processing of the claim all occurred months after the enactment of the amended PIP Statute.

Plaintiff attempts to rebut this analysis with Dewberry v. Auto-Owners Insurance Company, where the Court rejected Auto-Owners’ argument that the enactment of a statute alone provides sufficient notice; however, Plaintiff’s reliance on Dewberry is misplaced. First and foremost, the Dewberry opinion is thirty-eight (38) years old and the more recent opinions of Menendez and Metropolitan provide more thorough and instructive guidance regarding the notice component. Furthermore, the pertinent facts in Dewberry were not in dispute and are wholly at odds with the facts of the instant matter. Dewberry renewed his uninsured motorist coverage from an existing policy without revision in August 1976. At the time the policy was initially purchased and subsequently renewed uninsured motorist coverage stacked. Auto-Owners relied on the June 1976 enactment of the statute which no longer allowed stacking for claims arising out of accidents on or after October 1, 1976, as its sole form of notice to Dewberry that the policy would no longer stack uninsured motorist coverage. The Court rejected this argument for obvious reasons. The policy, in Dewberry was written before the enactment of the new statute precluding stacking and was renewed without revision to the policy terms. The Dewberry policy did not have the statute precluding stacking specifically built into the contract. Further, as the court noted, Dewberry purchased a policy that allowed stacking.

In this case, the Idreinis Sifontes’ insurance policy had the amended PIP Statute and its new provisions regarding Emergency Medical Conditions built into the contract. Here, the insured was aware of the amended PIP Statute and received notice of the coverage provisions built around the statute through the contract itself, and purchased that coverage. See 45th Street Mental Health Center, Inc., v. Department of Rehabilitative Services, 526 So.2d 716 (Fla. 1st DCA 1988). Thus, proper notice of the applicable coverage provisions for reimbursement of PIP claims was provided to the insured in this case and the Defendant applied the correct coverage provisions of the policy by limiting reimbursement of PIP benefits to $2,500.00 for this non-emergency medical condition claim.

V. CONCLUSIONS OF LAW

This Court finds that there are no genuine issues of material fact in this case and that the Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, is entitled to Final Summary Judgment as a matter of law. The Defendant applied the correct coverage provisions of the subject policy of insurance to the claim(s) in this case by limiting reimbursement of PIP benefits to $2,500.00 pursuant to the provisions of the amended PIP Statute F.S. 627.736(1)(a)(3) & (1)(a)(4) incorporated into the policy of insurance as there was no emergency medical condition determination from a physician licensed under chapter 458 or chapter 459, a dentist licensed under chapter 466, a physician assistant licensed under chapter 458 or chapter 459, or an advanced registered nurse practitioner licensed under chapter 464.

It is therefore:

ORDERED AND ADJUDGED that the February 17, 2016 Order Granting Defendant’s Motion for Final Summary Judgment with Memorandum of Law Regarding Emergency Medical Condition; Denying Plaintiff’s Cross Motion for Final Summary Judgment; and Denying Plaintiff’s Motion for Partial Summary Judgment Regarding Misapplication of the Policy Deductible be and hereby is CONFIRMED. The Plaintiff’s motion for rehearing and all relief requested therein seeking reversal of the Court’s February 17, 2016 rulings is hereby DENIED. The Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY is the prevailing party in this action. The Plaintiff, FLORIDA HEALTH PROFESSIONALS GROUP shall take nothing by this action and the Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY shall go hence without day. The Court reserves jurisdiction to determine Defendant’s entitlement and amount of attorney fees and costs.

__________________

¹See Affidavit of Adjuster, Christina Barrow and attached Exhibits, including policy endorsement form 4085 FL (05/12) and form A041 FL (06/11), previously filed with the Court on 10/02/2015. [Editor’s Note: Exhibits omitted.]

²Plaintiff conceded during oral argument at the Summary Judgment Hearing held on January 13, 2016, and during Rehearing on July 28, 2016, as well as within Plaintiff’s Cross Motion for Final Summary Judgment filed on December 18, 2015, that $2,500.00 in PIP benefits had been paid by the Defendant and there has been no determination by an authorized physician under F.S. 627.736(1)(a)(3) that the insured sustained an Emergency Medical Condition (EMC).