10 Fla. L. Weekly Supp. 426a

Insurance — Personal injury protection — Coverage — Lost wages — Insured is entitled to award of 60% of lost wages not covered by workers’ compensation, up to $10,000 policy limit of liability

EDWARD C. WILLIAMS, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 02-11270-CC. Division M. April 14, 2003. Mallory D. Cooper, Judge. Counsel: Raymond M. Ravis, Anderson and Howell, Jacksonville Beach, for Plaintiff. Raymond L. Roebuck and David M. Gagnon, Taylor, Day & Currie, Jacksonville, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT AND DENYING DEFENDANT’S CROSS MOTION FOR SUMMARY JUDGMENT

This cause came before this Court on the Motion for Final Summary Judgment filed by Plaintiff Edward C. Williams (Williams) on January 22, 2003. Defendant State Farm Mutual Automobile Insurance Company (State Farm) filed its Cross Motion for Summary Judgment on January 27, 2003. This Court, having heard argument of counsel, having fully considered the record, and being otherwise fully advised, makes the following findings of fact and conclusions of law:

1. Williams and State Farm filed a Stipulation of Facts before this Court on November 19, 2002, stating:

1. Plaintiff was involved in an accident on April 27, 2002, arising from the operation, maintenance or use of an automobile.

2. Plaintiff was insured by policy number 1089-840-59.

3. The policy provided for $10,000.00 of PIP benefits.

4. The above-referenced incident was compensable under the terms and conditions of the subject policy and section 627.736, Florida Statutes.

5. The policy was in full force and effect on the date of the incident.

6. Venue and jurisdiction are proper in the court.

7. As a result of this incident, Plaintiff has been unable to work and has lost income from April 28, 2002 [sic] through July 22, 2002.

8. At the time of the accident, Plaintiff’s average weekly wage was $1,180.05. From the period beginning April 28, 2002 [sic] through July 22, 2002, Plaintiff has received the maximum weekly workers’ compensation benefit allowed under Florida law, that being $594.00 per week.

9. Plaintiff’s average weekly wage of $1,180.05, minus the amount paid by workers’ compensation, results in a net loss of weekly earnings in the amount of $586.05. The total net wage loss suffered by the Plaintiff is $4,219.56.

10. Plaintiff is seeking 60% of $4219.56 in wage loss benefits under the PIP portion of the insurance policy issued by Defendant, which equals $2,531.74.

11. Defendant has denied Plaintiff’s claim, but has admitted that it is responsible for $1,457.28 in wage loss benefits.

12. The total amount of lost wages in controversy is $1074.46.

(Stipulation of Facts at 1-2.)

2. The insurance policy issued to Williams by State Farm states, in pertinent part:

We will pay in accordance with the No-Fault Act for bodily injury to an insured, caused by an accident resulting from the ownership, maintenance or use of a motor vehicle:

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2. Income Loss. 60% of loss of income and earning capacity due to the insured’s inability to work caused by his or her bodily injury during the time the insured isnot able to work.

(State Farm Policy at 12-13.)

3. In his Motion for Final Summary Judgment, Williams argues that State Farm is liable to him for 60% of his remaining total income loss not covered by the payments made by his workers’ compensation carrier. Williams further argues that this issue has been decided in favor of his position on two prior occasions by the Circuit Court of Duval County sitting in its appellate capacity; Williams specifically cites Bankers Insurance Company v. West, 98-14-AP, affirming West v. Bankers Insurance Company, 97-5507-CC, and State Farm Mutual Automobile Insurance Company v. Miller, 02-13-AP [9 Fla. L. Weekly Supp. 809a], affirming Miller v. State Farm Mutual Automobile Insurance Company, 01-2498-CC. Williams argues that the appellate decision in Miller, decided September 23, 2002, involves the exact same issues as the instant case, and is binding upon this Court. Finally, Williams argues:

Defendant is attempting to reduce the amount of benefits available to the Plaintiff without justification in the law or its policy of insurance. In Comeau v. Safeco Ins. Co., 342 So. 2d 1085 (Fla. 1st DCA 1977), the First District Court of Appeal held that a PIP insurer is required to supplement workers’ compensation benefits until the insurer has paid the limits of liability under its policy for required PIP benefits. The limit of liability under this policy, as stipulated by he parties, is $10,000.00, not 60%. Thus, Plaintiff is entitled to 60% of his lost wages not covered by workers’ compensation, and the amount is capped at $10,000.00.

(Mot. Final Summ. J. at 3-4) (citation omitted).

4. In its Cross Motion for Summary Judgment, State Farm argues that Williams is seeking double recovery, and that it is entitled to summary judgment as no material issue of fact exists as to whether or not he is entitled to additional lost wages. State Farm argues that:

Plaintiff may not recover lost wages over and above what has already been paid by his workers’ compensation carrier since he has been fully compensated for his loss as is contemplated by the Florida Legislature. Although recent Duval County courts have failed to draw the distinction, the current PIP statute allows for only 60% recovery of lost wages. This Court should therefore follow the more well-reasoned case law that caps a plaintiff’s lost-wage recovery in cases involving similar facts. See, e.g., Diaz v. South Carolina Ins. Co., 397 So. 2d 386, 387 (Fla. 3d DCA 1981); see also Jorglewich v. Lumbermens Mutual Casualty Co., 522 So. 2d 114, 115 (Fla. 5th DCA 1988) (deciding ‘appellant’s workers’ compensation benefits of 66 2/3% of her lost wages exceed the PIP benefits of 60% of lost gross income; therefore, she is entitled to no PIP benefits’). By failing to apply this law, the courts cited in Plaintiff’s Motion for Summary Judgment erred in their decisions.

The Supreme Court, in construing the 1975 version of Section [sic] 627.736, Florida Statutes, which allowed for payment of 100% of lost wages, held in Comeau v. Safeco Ins. Co. of America, 356 So. 2d 790 (Fla. 1978) that PIP benefits were available in addition to workers’ compensation benefits as long as an insured did not receive double recovery. However, subsequent appellate courts have recognized that a key statutory amendment since 1975 now prohibits plaintiffs from receiving more than 66 2/3% of their lost wages, and thus Comeau is clearly no longer applicable to this type of dispute.

This Court, therefore, should not allow Plaintiff in this case to recover 60% of the remaining 33% of lost wages not paid by Plaintiff’s workers’ compensation insurance carrier. Under Plaintiff’s theory, workers who are insured with PIP benefits and workers’ compensation benefits would receive 66 2/3% of their lost wages from workers’ compensation and an additional 60% of the remaining third, totaling nearly 20% over and above what other insureds would receive. The law merely requires that an insured be ‘fully compensated,’ see generally Kovarnik v. Royal Globe Ins. Co., 363 So. 2d 166, 168 (Fla. 4th DCA 1978), but an insured is ‘fully compensated’ when he or she receives the amount the Florida Legislature has deemed appropriate for the repayment of lost wages. This court should not grant this Plaintiff substantial recovery over and above what he is entitled to receive under the law.

(Cross. Mot. Summ. J. at 2-4) (footnotes omitted).

5. A summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). “To establish entitlement to a summary judgment, the moving party must demonstrate conclusively that no genuine issue exists as to any material fact, even after all reasonable inferences are drawn in favor of the party opposing the summary judgment.” Johnson v. Circle K Corp., 734 So. 2d 536, 536-37 (Fla. 1st DCA 1999), citing Moore v. Morris, 475 So. 2d 666 (Fla. 1985).

6. The exact issue presented in the instant case has been decided by the Circuit Court of the Fourth Judicial Circuit sitting in its appellate capacity. State Farm Mut. Auto. Ins. Co. v. Miller, No. 02-13-AP (Fla. 4th Cir. Ct. September 23, 2002) [9 Fla. L. Weekly Supp. 809a]. In Miller, the Honorable Judge Karen K. Cole affirmed the lower court’s judgment in favor of the plaintiff, who was seeking the same relief sought by Williams in the instant case. That decision is binding upon this Court. See Fieselman v. State, 566 So. 2d 768 (Fla. 1990). This Court, and the parties, agree that no genuine issue of material fact exists; Williams has shown that he is entitled to judgment as a matter of law. State Farm has not.

7. At the hearing on the instant Motions, State Farm requested that this Court certify the question presented by this case to the First District Court of Appeal. This Court declines to do so. §34.017(3), Florida Statutes (2002).

In view of the above, it is

ORDERED AND ADJUDGED that:

1. Williams’ Motion for Final Summary Judgment is hereby GRANTED.

2. State Farm’s Cross Motion for Summary Judgment is hereby DENIED.

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