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A Florida judge has upheld his temporary injunction partially blocking portions of the state’s automobile no-fault insurance law on the basis it infringes on drivers’ access to the courts. As a result, regulators are appealing to a higher court.

Second Circuit Court Judge Terry Lewis upheld his initial decision in a case [Myers v. McCarty Case No. 2013 CA 73] that was filed on behalf of acupuncturists, massage therapists, and chiropractors.

The acupuncturists and massage therapists said the new law threatens their livelihood by excluding them from the list of PIP providers and preventing them from receiving medical payments for treating injured drivers.

Chiropractors also argued the new law unfairly restricted their payments since the law placed limits on medical coverage as drivers with emergency injuries are provided $10,000 in coverage while drivers with non-emergency injuries only receive $2,500 in coverage.

In his initial ruling, Lewis said the restrictions in medical coverages no longer made PIP a “reasonable alternative” to a tort system.

On revisiting the case, Lewis said he is still sensitive to the medical providers’ concerns. However, he said, the injunction is foremost to protect individuals’ rights to access the courts.

“The reason for issuing the injunction was to protect the constitutional right and prevent the potential harm to citizens injured in auto accidents who, under the present PIP statute, may not receive necessary medical care,” Lewis stated.

Lewis went on to say after weighing that against the difficulties the injunction created for regulators and insurers, he still found that the “equities tip in favor of allowing the temporary injunction to remain in effect.”

Donovan Brown, Florida counsel for state relations for Property Insurers Association, said the association is disappointed in the ruling and what it means for the PIP law.

“Florida consumers deserve the full benefit of the 2012 reforms,” said Brown. “This ruling gives way to the fraud and abuse those reforms were designed to eliminate.”

In response to Lewis’ ruling, the Office of Insurance Regulation filed a motion with Florida’s First District Court of Appeal seeking an expedited review of the temporary injunction.

The OIR’s motion is not a response to the issues raised in Myers v. McCarty, but instead addresses the validity of Lewis’ injunction.

For one, the motion states that Lewis’ injunction ignored the Florida Supreme Court’s standard that statutes have a presumption of constitutionality unless it appears beyond all reasonable doubt to be in conflict with a state constitutional provision.

More to the point, the OIR motion gave no direction on what regulators must do to comply with the injunction.

“The injunction order did not suddenly remove the provisions from law; it sought to enjoin the OIR from enforcing them. How that will affect millions of motorists and their existing policies is…unclear,” according to the motion.

Governor Rick Scott had vowed to “continue to fight” to save the PIP reforms, which was a centerpiece of his legislative agenda last year. However, he never followed up on his statement, leaving it to lawmakers to come up with a response.

But lawmakers are poised to rely on the legal system to resolve the issue as opposed to taking legislative action after a consensus could not be reached on a response.

The Senate Banking and Insurance Committee had considered scraping PIP in favor of moving to a tort system that would require all drivers to carry bodily injury and property damage coverage.

Committee Chair David Simmons (R-Altamonte Springs) sponsored a bill (SB 1888) that would have made the change, but was greeted by a mixed reaction from insurers and healthcare providers over such issues as whether the coverage would include a med-pay component and tort reform.

Simmons acknowledges the bill was designed to be a placeholder in case there was a clear legislative fix that would resolve the case. However, failing some late development, the bill has been left to languish in its last committee of reference, effectively killing it for this year.

Brown acknowledged that at this point there “is no appetite among legislators to address PIP reform this session.”

Posted 12:24 PM  View Comments

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