At the close of last week, the First District Court of Appeal issued an order affirming Judge Lewis' order vacating the automatic stay of the Injunction (links to both below). So where does that leave the status of “new PIP” at this moment? At this moment, Judge Lewis' injunction is in place which, arguably to some, prohibits PIP insurers from denying for massage or acupuncture and prohibits them from limiting benefits to $2,500 based on a determination of there being no emergency medical condition. To our knowledge as reported by members, State Farm is following the Injunction, but GEICO, Progressive, and USAA are not following the Injunction.
By Kimberly Driggers, JD, FCA Asst. General Counsel & Paul Lambert, JD, FCA General Counsel
Friday, 19 April 2013
Circuit Court Judge Terry Lewis issued an order granting the Plaintiff's request to remove the stay on the temporary injunction in the case of Myers v. McCarty, that will now put the injunction back in place on the new PIP law. What does that mean to you? Effectively, auto carriers should be paying PIP benefits per the old law without regard to the limitations set forth by the definition of "Emergency Medical Condition" and without denying massage therapy or acupuncture services.
Prior updates on the PIP constitutionality/injunction lawsuit can be found on the FCA web site, in the “PIP 2013” section. Log in as a member to see this helpful content.
On March 21 the Office of Insurance Regulation filed a Notice of Appeal of a Non-Final Order and Notice of Automatic Stay in the First District Court of Appeal in Tallahassee. Under the Rules of Appellate Procedure, the state is entitled to an automatic stay of any order it appeals pending the outcome of the appeal. A stay of the order granting temporary injunction means that the status quo remains in effect pending the outcome of the appeal. In other words, the $2,500.00 cap for injuries that do not meet the definition of emergency medical condition, the ban on billing for massage or acupuncture, and the restriction of the determination of an emergency medical condition, remain in effect without change.
The parties then have two choices. Either party can ask the Appellate court to send the issue to the Florida Supreme Court as a matter of great public importance and the Florida Supreme Court may or may not accept it. Or the State (Appellant) can move forward in the Appellate court where the written briefing process takes a minimum of 90 days. The appellate court may, in its discretion, grant the parties the opportunity to expound upon their brief by scheduling oral arguments. There are no time restraints on the court for granting oral arguments or issuing an order in the appeal. The appellate process may take a few or many months before it is resolved.
We will keep you apprised of further developments via future member bulletins.
The
decision made public yesterday by Tallahassee Circuit Court Judge Terry
Lewis, granting a temporary injunction to several key provisions in
Florida's new PIP/No-fault auto insurance law, continues to gather
considerable attention in Florida’s Capitol.
Judge Terry Lewis, Circuit Court, Tallahassee, Leon County, Florida (19th
Judicial Circuit) has issued an order granting in part a motion for
temporary injunction relating to Florida’s new PIP law. The order
concludes:
“Accordingly, it is ORDERED AND ADJUDGED as follows:
A third lawsuit challenging the validity of the
changes to the PIP statute that took effect on January 1, 2013, was
filed in the Leon County Circuit Court on January 7 by the same law firm
who filed the prior two lawsuits. The original State court action was
filed in Leon County but voluntarily dismissed by the Plaintiffs without
a hearing or explanation. They filed a second suit in the federal
court in Hillsborough County that was dismissed by the federal judge.
Upon the Plaintiff’s motion for reconsideration, the federal judge
likewise issued a lengthy order denying reconsideration on the claims.
The third suit now filed again in Leon County Circuit Court, raises
similar allegations as were raised in the previous suits.
We have all heard that “New PIP” goes into effect on January 1, 2013. But, does that mean for all accidents occurring after 1/1/13? Does it mean for any treatment occurring after 1/1/13? Or does that mean for policies issued or renewed after 1/1/13?
STATE FILES MOTION TO DISMISS IN CONSTITUTIONAL CHALLENGE TO NEW PIP LAW
After
Judge Richard Lazarra last week denied Plaintiff’s request for a
temporary injunction to stop the new PIP law from going into effect on
January 1st, it gave the State time to respond to the Complaint.
Several healthcare provider Plaintiffs represented by Luke Lirot,
Esquire, of Clearwater, Florida, initially sued Florida Insurance
Commissioner, Kevin McCarty, in State Court but then voluntarily
dismissed the lawsuit and filed the same/similar lawsuit with different
provider plaintiffs in Federal Court, Middle District of Florida.
Judge Richard A. Lazzara, Federal Judge, Middle District of Florida, issued a 9-page Order denying the Motion for Temporary Injunction in the lawsuit filed by Luke Lirot, Esquire, originally in Leon County State Court but recently dismissed and filed in Federal Court.
