Florida Insurance Commissioner Kevin McCarty's office filed anappeal to stop a temporary injunction of certain provisions withinwhat the industry had called the most significant auto insurancelaw in decades.

McCarty's Office of Insurance Regulation (OIR) filed a notice ofappeal on March 21, which immediately stays a temporary order ofinjunction from the Second Circuit Court in Leon County, Fla. thatwould have allowed acupuncturists and massage therapists to receivepersonal injury protection (PIP) benefits and eliminated therequirement that a person have an “emergency medical condition” asa prerequisite to receiving full PIP benefits.

“This appeal will act as a stay of the injunction order untilthe 1st District Court of Appeals rules on this matter,” says theOIR, adding that it informed all insurers of the injunction andsubsequent appeal by the OIR.

Last May, in a move lauded by insurers, Gov. Rick Scottsigned HB 119 into law. The legislation aimed to mend thestate's broken no-fault, PIP system, which has been plagued byabuse and fraud. Of the law's many provisions is a ban of PIPbenefits for acupuncturists and massage facilities, and arequirement that claimants seek treatment within 14 days of anaccident from a hospital or physician.

However, Leon County Judge Terry Lewis ruled these provisionsviolate the Florida Constitution, saying these parts of the law“violate the right of the people to have access to the courts toseek redress for their injuries.”

In his opinion, Florida lawmakers have a history of strayingfrom “libertarian principles of individual liberty and personalresponsibility,” and, in some cases, have “replaced a pure freemarket approach with a government-controlled system (such as theno-fault auto insurance system) in order to address a perceivedproblem.”

“This is the first time a court has called into question theconstitutionality of the new PIP statute,” explains Michael J.McQuaide, an attorney at Marshall, Dennehey, Warner, Coleman andGoggin. “This ruling opens the door to a Florida Supreme Courtreview of the constitutionality of the new statute.”

The group of acupuncturists, massage therapists, andchiropractors failed to convince a state district court judge onthe same merits. In January Judge Richard Lazzara, in the U.S.District Court in the Middle District of Florida, denied the group an injunction.

McCarty and many insurers are not alone in their outrageregarding Lewis' decision and its underlying logic. The Coalition Against InsuranceFraud also publicly expressed disappointment about theruling:

“The opinion ignores the irreparable harm that crooked medicalproviders inflict on honest drivers and the no-fault system'sintegrity,” said Dennis Jay, executive director of The Coalition,in a press release. 

“The judge's written opinion is somewhat convoluted,” he added.“Higher courts are likely to overturn the stay. Curbing crookedmedical providers in this manner is a reasonable way to reducerunaway fraud, and its constitutional validity has a strongbasis.”