Malu v. SECURITY NAT. INS. CO.

898 So. 2d 69, 2005 WL 549933
CourtSupreme Court of Florida
DecidedMarch 10, 2005
DocketSC03-1327, SC03-1432
StatusPublished
Cited by15 cases

This text of 898 So. 2d 69 (Malu v. SECURITY NAT. INS. CO.) 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
Malu v. SECURITY NAT. INS. CO., 898 So. 2d 69, 2005 WL 549933 (Fla. 2005).

Opinion

898 So.2d 69 (2005)

Sandra MALU, Petitioner,
v.
SECURITY NATIONAL INSURANCE COMPANY, Respondent.
Lazaro Padilla, et al., Petitioners,
v.
Liberty Mutual Insurance Company, et al., Respondents.

Nos. SC03-1327, SC03-1432.

Supreme Court of Florida.

March 10, 2005.

*70 Carlos Lidsky of Lidsky, Vaccaro and Montes, Hialeah, FL, Diane H. Tutt and Sharon C. Degnan of Diane H. Tutt, P.A., Plantation, FL, for Petitioner.

Beth T. Vogelsang of Barranco, Kircher, and Vogelsang, P.A., Miami, FL, for Respondent.

Nina K. Brown, Mark S. Shapiro and Jennifer Cohen Glasser of Akerman Senterfitt, Miami, FL on behalf of Liberty Mutual Insurance Company; and Doreen E. Lasch of Conroy, Simberg, Ganon, Krevens and Abel, P.A. on behalf of Urban Insurance Company of Pennsylvania, for Respondents.

PER CURIAM.

We have for review the consolidated cases of Malu v. Security National Insurance Co., 848 So.2d 373 (Fla. 4th DCA 2003), and Padilla v. Liberty Mutual Insurance Co., 870 So.2d 827 (Fla. 3d DCA 2003), in which the Fourth and Third District Courts of Appeal certified conflict with the decision of the Fifth District Court of Appeal in Hunter v. Allstate Insurance Co., 498 So.2d 514 (Fla. 5th DCA *71 1986). We have jurisdiction. See Art. V, § 3(b)(4).

The facts in each of the cases before us are substantially similar.

MALU

Petitioner Sandra Malu was insured under a private passenger automobile insurance policy issued by respondent Security National Insurance Company (Security National). After sustaining injuries in a motor vehicle accident, Malu made a claim for personal injury protection (PIP) benefits under her insurance policy. Among the benefits she sought was payment for the use of her personal automobile for travel to and from her medical providers. According to its usual and customary practice, Security National paid Malu a standard, predetermined amount of 34.5 cents per mile as reimbursement for the medical travel expenses.

Malu filed a class action complaint in the Circuit Court for Broward County, alleging that she was entitled to be paid more than 34.5 cents per mile for medical transportation costs. Malu sought declaratory relief and damages for breach of contract based upon a violation of the PIP statute of the Florida Motor Vehicle No-Fault Law, section 627.736, Florida Statutes (2001). Malu alleged that the mileage rate paid by her insurer for medical transportation costs was not reasonable and asserted that a reasonable mileage rate was in the range of 50 cents per mile.

The trial court dismissed the case with prejudice, finding as a matter of law that the 34.5 cents per mile paid by Security National to its insureds was reasonable. On appeal to the Fourth District, Malu argued that the trial court erred in concluding that the amount was reasonable as a matter of law, asserting that such a finding was not susceptible to determination as a matter of law but, rather, could only be made by the trier of fact.

The Fourth District agreed and found that the trial court had erred when it considered facts from outside of the complaint in its dismissal of the case. Despite this error, the Fourth District held that it was obligated to affirm the trial court if an alternative theory supported affirmance. Consequently, the district court affirmed the trial court's dismissal on the alternate basis that the medical transportation expenses were not compensable under the PIP statute. The court stated:

Our reasoning is based on the fact that the legislature specifically included transportation by ambulance, but did not mention any other type of transportation in the PIP statute. The mention of one type of transportation implies the exclusion of other types. Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898, 900 (Fla.1996) ("Under the principle of statutory construction, expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another.").

Malu, 848 So.2d at 374.

The Fourth District also reasoned that when the Legislature has intended to provide coverage for automobile transportation to obtain medical treatment in a statutory scheme, it has specifically provided for payment of such expenses in the statutory language. As examples, the Malu panel cited to the statutory scheme that provided benefits for birth-related neurological injuries, section 766.31(1)(a), Florida Statutes (2002), and a workers' compensation statute that was repealed in 1993, section 440.13(6), Florida Statutes (1993). Malu, 848 So.2d at 374.

On this basis, the Fourth District held that the PIP statute did not include the transportation expenses sought by Malu in her claim and certified conflict with Hunter, *72 in which the Fifth District had expressly ruled that such expenses were compensable under the PIP statute. Malu, 848 So.2d at 374.

PADILLA

Petitioner Lazaro Padilla was insured under a private passenger automobile insurance policy issued by respondent Liberty Mutual Insurance Company (Liberty Mutual). Petitioners Eloy and Irma Rivero were likewise insured under a private passenger automobile insurance policy issued by respondent Urban Insurance Company of Pennsylvania (Urban).

After sustaining injuries in motor vehicle accidents, Padilla and the Riveros made claims for reimbursement of medical transportation costs under their respective insurance policies. According to their usual and customary practices, both Liberty Mutual and Urban paid their insureds a standard, predetermined amount of 32.5 cents per mile as reimbursement for the medical travel expenses.

Padilla and the Riveros filed separate class action complaints in the Circuit Court for Dade County against their respective insurers and asserted the same claims as Malu. In response to the complaints, both Liberty Mutual and Urban filed extensive motions to dismiss, arguing that the amounts they paid to their insureds in connection with transportation to obtain medical treatment were reasonable as a matter of law. They also argued that the complaints should be dismissed because the appropriate forum to decide the issue was not the trial court but, rather, the Department of Insurance (DOI), which the insurers claimed had "primary jurisdiction" over determinations of reasonable rates. The Padilla trial court dismissed Padilla's complaint without prejudice based on the "primary jurisdiction doctrine."[1] The Rivero trial court dismissed the Riveros' complaint with prejudice based on the primary jurisdiction doctrine and upon a finding that the 32.5 cents per mile paid by Urban to its insureds was reasonable as a matter of law.

The appeals of Padilla and the Riveros were consolidated in the Third District Court of Appeal. The insureds challenged (1) the trial courts' application of the primary jurisdiction doctrine, and (2) the Rivero trial court's conclusion that the amount paid by Liberty Mutual and Urban to their insureds for medical transportation costs was reasonable as a matter of law, a finding that the insureds asserted could only be made by the trier of fact.

The Third District held that all issues raised by the parties throughout the proceedings were moot because the Third District was in agreement with the Fourth District's analysis in Malu. Padilla, 870 So.2d at 829. The Third District concluded that if the Florida Legislature "deems it appropriate" to provide for medical travel benefits under the PIP statute, it can "do so specifically." Id.

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Bluebook (online)
898 So. 2d 69, 2005 WL 549933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malu-v-security-nat-ins-co-fla-2005.