Automobile Liability

The plaintiff filed a complaint for declaratory relief and attorney fees pursuant to Fla. Stat. 627.428 against the defendant for the alleged underpayment of CPT code 99204 in relation to treatment rendered to Joel Gonzalez for injuries allegedly sustained in an April 12, 2023, motor vehicle accident. In the complaint, the plaintiff alleged that the defendant reimbursed CPT code 99204 at a “seemingly arbitrary amount” that did not appear to align with the appropriate amount allowed under the Medicare fee schedule. 

In response, the defendant filed a motion to dismiss and motion to strike, arguing that the underlying policy had an effective date from April 6, 2023, through October 6, 2023, thus triggering the provisions of HB 837, which was signed into law by Governor DeSantis on March 24, 2023. In support of its argument, the defendant pointed to Section 29 of HB 837, which dictates that the bill “applies to an insurance contract issued or renewed after the effective date of this act.” The defendant also pointed to the fact that the act repealed Fla. Stat. 627.428 and created Fla. Stat. 624.1552, which created a right to attorney fees only for actions for declaratory relief to determine insurance coverage after total coverage denial of a claim. 

The plaintiff went on to argue that the plaintiff’s complaint conceded there was coverage on the claim and that the underlying motor vehicle accident occurred after March 24, 2023, therefore leaving no doubt that the provisions of HB 837 must be applied to the instant lawsuit. In making its argument that the plaintiff’s claim for attorney fees should be stricken, the defendant cited Water Damage Express, LLC v. First Protective Ins. Co., 336 So. 3d 310, 312-13 (Fla. 4th DCA 2022) in which the 4th District Court of Appeal, citing Menendez v. Progressive Express Insurance Co., 35 So. 3d 873 (Fla. 2010), held that a statute in effect at the time that an insurance contract is entered into governs the substantive issues arising in connection with that contract. 

The defendant then argued that the plaintiff’s claim for attorney fees under Fla. Stat. 627.428 was a nullity as the statute did not exist at the time the underlying contract was entered into. The court agreed and issued an order granting the motion to strike and order that the plaintiff’s claim for attorney fees is stricken. 

This case is significant for insurance carriers as it provides a clear path to striking a plaintiff’s claim for entitlement to fees/costs under section 627.428 for policies that went into effect after the passage of HB 837 on March 24, 2023. As this case is currently ongoing, we will continue to monitor this suit in order to ascertain potential tactics that the plaintiff’s bar may institute to fight back against HB 837’s repeal of Fla. Stat. 627.428. It is also important to note that a similar ruling was issued by Judge Robert Lee in Broward County on the case of Associates MD a/a/o Alicia Stransbury v. GEICO Indemnity Company, Broward County Case No: COINX-23-055856 (53).
 

_{Case Law Alerts, 4th Quarter, October 2023 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2023 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.}