Allstate Ins. Co. v. Rudnick

761 So. 2d 289, 25 Fla. L. Weekly Supp. 329, 2000 Fla. LEXIS 825, 2000 WL 551033
CourtSupreme Court of Florida
DecidedMay 4, 2000
DocketSC92605
StatusPublished
Cited by24 cases

This text of 761 So. 2d 289 (Allstate Ins. Co. v. Rudnick) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allstate Ins. Co. v. Rudnick, 761 So. 2d 289, 25 Fla. L. Weekly Supp. 329, 2000 Fla. LEXIS 825, 2000 WL 551033 (Fla. 2000).

Opinion

761 So.2d 289 (2000)

ALLSTATE INSURANCE COMPANY, Petitioner,
v.
Bonita H. RUDNICK, Respondent.

No. SC92605.

Supreme Court of Florida.

May 4, 2000.

*290 Richard A. Sherman and Rosemary B. Wilder of the Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, Florida; and Lawrence J. Signori, West Palm Beach, Florida, for Petitioner.

Russell S. Bohn of Caruso, Burlington, Bohn & Compiani, P.A.; and Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach, Florida, for Respondent.

PER CURIAM.

We have for review Allstate Insurance Co. v. Rudnick, 706 So.2d 389 (Fla. 4th DCA 1998), in which the Fourth District certified conflict with the decision in Kokotis v. DeMarco, 679 So.2d 296 (Fla. 5th DCA 1996), review denied, 689 So.2d 1068 (Fla.1997), on the issue of the definition of the term "payable" found in section 627.736(3), Florida Statutes (1993). We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution.

Bonita Rudnick was injured in an automobile accident and recovered damages that included future medical benefits. She settled with the driver of the other car for the policy limits of $10,000 and then sued Allstate, her underinsured motorist carrier. The parties stipulated that all offsets would be handled after trial. Although the trial court subtracted the $10,000 recovered from the tortfeasor's insurer, the trial court refused Allstate's request to set off the remaining future medical payments benefits (medpay) and personal injury protection (PIP) benefits from the verdict.

Allstate appealed and the Fourth District affirmed the trial court's decision. See Rudnick, 706 So.2d at 391. The Fourth District held that because the requested setoffs did not represent benefits already paid or actually incurred and owed at the time of trial, the trial court did not err in refusing to set off the remaining personal injury protection benefits and medpay benefits against the verdict. See id.

In Rollins v. Pizzarelli, 761 So.2d 294 (Fla.2000), we held that under section 627.736(3), Florida Statutes (1991), an award for future medical damages should not be reduced by the amount of a plaintiff's remaining PIP benefits. Based on Rollins, we therefore approve the Fourth District's decision in Rudnick on this issue.

The Fourth District's opinion also held that the plaintiff's remaining medpay benefits could not be set off against damages for future medical expenses that have not yet been incurred. See Rudnick, 706 So.2d at 391. This portion of the district court's opinion conflicts with the opinion of the First District in King v. Burch, 724 So.2d 1237, 1238 (Fla. 1st DCA 1999), over the interpretation given to the term "otherwise available" in section 768.76(1), Florida Statutes (1993), the general collateral source statute. Specifically, the district courts are in conflict on the question of whether under section 768.76(1) remaining *291 medpay benefits must be set off from the jury's verdict for future medical expenses. Compare Rudnick, 706 So.2d at 390-91, and White v. Westlund, 624 So.2d 1148, 1150 (Fla. 4th DCA 1993), with King, 724 So.2d at 1238. Because we have jurisdiction in this case on the basis of a certified conflict, we have the discretion to address this issue. See PK Ventures, Inc. v. Raymond James & Assocs., Inc., 690 So.2d 1296, 1297 n. 2 (Fla.1997).[1]

Allstate first maintains that the future medpay benefits are the equivalent of PIP benefits for section 627.736(3) purposes, and therefore must be set off from the verdict as "payable." Because we have determined in Rollins that the term "payable" does not include all remaining PIP benefits that are not currently payable, this argument is unavailing.

However, even if we were to read "payable" more expansively, we would conclude that medpay benefits should not be treated as PIP benefits. In rejecting Allstate's argument, we need look no further than the actual language of section 627.736(3), which is limited by its express terms to "personal injury protection benefits." Further, while PIP is a statutorily required coverage, see section 627.736(1), medpay coverage is optional. See § 627.736(4)(f), Fla. Stat. (1993)[2]; State Farm Mut. Auto. Ins. Co. v. Swearingen, 590 So.2d 506, 508 (Fla. 4th DCA 1991).

In State Farm Mutual Automobile Insurance Co. v. Klinglesmith, 717 So.2d 569, 570 (Fla. 5th DCA 1998), the Fifth District addressed this precise issue:

The basis for State Farm's equating medpay benefits with PIP benefits, section 627.736(4)(f), actually demonstrates that medpay benefits are a collateral source. That statute provides that if PIP medical benefits have paid 80 percent of an insured's medical expenses, see section 627.736(1)(a), medpay benefits, "if available in a policy of motor vehicle insurance," must be applied to the remaining 20 percent even if PIP benefits have not been exhausted. Thus, if an insured opts to purchase medpay benefits to supplement the PIP coverage, the statute requires that collateral source to be applied first, rather than other medical insurance the insured may have.

(Citations omitted.) We agree with the Fifth District's reasoning on this issue.

We thus conclude that medpay benefits are not the equivalent of PIP benefits for purposes of section 627.736(3). Rather, medpay benefits are a collateral source to which the general collateral source statute is applicable. See Klinglesmith, 717 So.2d at 570.[3]

Allstate alternatively argues that the remaining medpay benefits must be set off from the verdict because they were available within the meaning of section 768.76(1), the general collateral source *292 statute. Section 768.76(1)[4] requires the court to reduce the amount of the plaintiff's award by the total of all amounts "which have been paid for the benefit of the claimant, or which are otherwise available to him, from all collateral sources; however, there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists."

In King, the First District Court interpreted the "otherwise available" language of section 768.76(1) to mean that those medpay benefits remaining at the time of judgment should be set off against a verdict for future medical damages. King, 724 So.2d at 1238. In contrast, the Fourth District in White, interpreted the phrase "otherwise available" in section 768.76(1) to include only those benefits that have already been paid or that are presently due and owing and not those benefits potentially payable in the future:

[This language] indicates that, in order to have collateral source benefits set off against an award, those benefits must either be already paid ("amounts which have been paid") or presently earned and currently due and owing ("otherwise available to him"). In fact, the term "available" means "Accessible for use: at hand," connoting a present, rather than a future, application. And, furthermore, the term "collateral source" is defined in subsection (2) as those payments "made" to the claimant; nowhere does that definition include payments that may be made in the future. Hence, it follows that appellant's interpretation of this section as applying to both past and future benefits is strained.

White,

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Bluebook (online)
761 So. 2d 289, 25 Fla. L. Weekly Supp. 329, 2000 Fla. LEXIS 825, 2000 WL 551033, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allstate-ins-co-v-rudnick-fla-2000.