Monday, September 5, 2011

Has PIP become unconstitutional?

A few provisions of Florida's PIP statute have been held unconstitutional over its 40-year history.  But PIP itself has withstood the constitutional test of time. 

The cover story of this month's Florida Bar Journal suggests that cumulative reforms to the PIP statute beg a new question:  Has the entire statutory scheme has been rendered unconstitutional?  See The Advent of Paper IMEs in No-fault Claims: Will They Be a Solution or a Problem? 

The author acknowledges that the Legislature passed various statutory amendments – in 1998, 2001 and 2003 –  to  “curb . . . abusive practices,” such as bulk billing and skirting the IME requirement.  And today, “Florida is facing a crisis in PIP with alarming concerns” about staged accidents, and patients solicitation and brokering, among other current abuses.

The author’s narrow legal premise is that, with “legislative and judicial approval,” paper IMEs may have resulted in an unconstitutional deprivation of certain rights.  More broadly, however, the author questions whether “the reasons articulated by the Florida Supreme Court” supporting the constitutionality of PIP “no longer exist" in that PIP "no longer serves a valid rational governmental purpose.”  In this regard, the author makes the following observations:
  • PIP litigation has continued to increase, not decrease.
  • Florida PIP and auto premiums “continue to rise and remain among the highest in the country."
  • With the legislative changes in 1998, 2001 and 2003 – and paper IMEs in particular -- inequalities of recovery may have increased, in favor of insurers.
  • Contrary to providing for prompt reimbursement, "PIP benefits may be contested indefinitely and paid years later, only subject to the statutory penalties."
The article is well-researched, with some healthy and debatable premises.  Questions like those raised above should be relevant as the various stakeholders in PIP consider whether the best public policy is further reform or repeal.

This summary was prepared by Perry Cone and posted at

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