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Insurers Incorrectly Applying The $2,500 EMC Limitation

PIP Attorney Miami

Some dishonest insurers are incorrectly applying the $2,500 EMC limitation to claims on policies that were in effect prior to the enactment of the new PIP statute on January 1, 2013. In Menendez v. Progressive Express Insurance Co., Inc., 35 So.3d 873 (Fla. 2010) the Supreme Court of Florida held that when a statute was enacted after the issuance of an insurance policy, retroactive application of the provisions is not allowed.

The Court noted that “[i]n our analysis, we look at the date the insurance policy was issued and not the date that the suit was filed or the accident occurred, because the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.” Id at 876, citing Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 108 (Fla. 1996); see also Lumbermens Mut. Cas. Co. V. Ceballos, 440 So.2d 612, 613 (Fla. 3rd DCA 1983)(holding that a liability policy is governed by the law in effect at the time the policy is issued, not the law in effect at the time a claim arises); Hausler v. State Farm Mut. Auto. Ins. Co., 374 So.2d 1037, 1038 (Fla. 2nd DCA 1979)(holding that the date of the accident does not determine the law that is applicable to a dispute).

A number of insurers are incorrectly limiting treatment to $2,500 where the accident has taken place after January 1, 2013. This is incorrect. As noted by the Supreme Court of Florida, the operative date is the date the policy was issued, not the date of accident. If the date the policy was issued is prior to January 1, 2013, insurers may not limit treatment to $2,500, regardless of whether an EMC report was received or not.

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