Florida Insurance Commissioner Kevin McCarty's office filed an appeal to stop a temporary injunction of certain provisions within what the industry had called the most significant auto insurance law in decades.

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

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

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

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

In his opinion, Florida lawmakers have a history of straying from “libertarian principles of individual liberty and personal responsibility,” and, in some cases, have “replaced a pure free market approach with a government-controlled system (such as the no-fault auto insurance system) in order to address a perceived problem.”

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

The group of acupuncturists, massage therapists, and chiropractors failed to convince a state district court judge on the 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 outrage regarding Lewis' decision and its underlying logic. The Coalition Against Insurance Fraud also publicly expressed disappointment about the ruling:

“The opinion ignores the irreparable harm that crooked medical providers inflict on honest drivers and the no-fault system's integrity,” 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 crooked medical providers in this manner is a reasonable way to reduce runaway fraud, and its constitutional validity has a strong basis.”

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