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Padilla v. Mutual8/17/2005
Before RAMIREZ, and ROTHENBERG, JJ, and SCHWARTZ, Senior Judge.
In this consolidated appeal, Lazaro Padilla and Eloy Rivero appeal two orders of dismissal without prejudice of their putative class actions suits filed against their respective insurance carriers, appellees Liberty Mutual Insurance Company and Urban Insurance Company of Pennsylvania, in which they sought payment pursuant to their Personal Injury Protection benefits for medical treatment automobile transportation costs.
We withdraw this Court's opinion rendered July 23, 2003 in Padilla v. Liberty Mut. Ins. Co., 870 So. 2d 827 (Fla. 3d DCA 2003), substitute this opinion in its stead, and affirm the trial court's dismissal because the issue of whether the travel reimbursement rate for the insureds' medical treatment automobile transportation costs was reasonable is a determination which the trial court was not authorized to make.
FACTUAL AND PROCEDURAL BACKGROUND
Liberty Mutual and Urban Insurance paid the insureds' automobile transportation costs at a mileage rate of 32.5 cents per mile as travel benefits. The insureds alleged in their complaints, however, that they were entitled to be paid more than 32.5 cents per mile for their medical treatment transportation costs. The trial court determined that the 32.5 cents per mile reimbursement rate was reasonable as a matter of law.
The insureds then appealed to this Court. Padilla also petitioned the Department of Insurance (DOI) for declaratory relief, but the DOI dismissed the petition. Padilla subsequently appealed the dismissal order to the First District Court of Appeal which affirmed the dismissal in Padilla v. Liberty Mut. Ins. Co., 832 So. 2d 916, 920 (Fla. 1st DCA 2002), stating, in part, that the DOI has no authority to set the mileage reimbursement rates, and that it is for the courts to decide on a case by case basis.
Following the disposition of the First District case, this Court issued its opinion in Padilla v. Liberty Mut. Ins. Co., 870 So. 2d 827, 829 (Fla. 3d DCA 2003), stating that this Court fully agreed with the Fourth District Court in Malu v. Security Nat'l Ins. Co., 848 So. 2d 373 (Fla. 4th DCA 2003) (holding that automobile transportation expenses, such as those sought here, are not included in the Florida PIP statute). This Court thus held, in part, that (a) section 627.736(1)(a), Florida Statutes, does not provide for the payment of the automobile transportation expenses, and (b) if the legislature deems it appropriate to provide for such benefits under the PIP statute, it could do so specifically, and if so, it can also provide the DOI with rulemaking authority to determine the appropriate rate for such benefits. Padilla, 870 So. 2d at 829. Accordingly, this Court affirmed the dismissal orders, and certified conflict with Hunter v. Allstate Ins. Co., 498 So. 2d 514 (Fla. 5th DCA 1986)(holding that automotive transportation expenses are covered under section 627.736(1)(a)). Id.
The Florida Supreme Court subsequently held that the current PIP statute requires reimbursement for transportation costs incurred in connection with medical treatment that is reasonably medically necessary. See Malu v. Security Nat'l Ins. Co., 898 So. 2d 69, 76 (Fla. 2005). The Court quashed the Fourth District's decision in Malu, quashed this Court's decision in Padilla, approved the holding and rationale of the Fifth District in Hunter, and remanded both Malu and Padilla to the respective district courts for further proceedings in accordance with its decision. Id.
Against this background, we now turn to the issues raised in these cases. The insureds request that we determine whether the travel mileag
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