10 Fla. L. Weekly Supp. 544a
Insurance — Personal injury protection — Disability income — Motion for summary judgment on ground that insured’s claim for disability-related income loss was not accompanied by report from a medical professional indicating that insured was disabled is denied — Issue of PIP disability is question of proof appropriate for trial — Denial is without prejudice to bringing motion again after discovery if insured can provide no admissible proof that he was disabled and lost income as result of motor vehicle accident
SALVADOR TORRES, Plaintiff, vs. DIRECT GENERAL INSURANCE CO., Defendant. County Court,12th Judicial Circuit in and for Sarasota County. Case No. 2002-SC-017601-NC. May 9, 2003. Judy Goldman, Judge. Counsel: Perry Tanksley, Perry Tanksley, JD, CPA, Sarasota, for Plaintiff. Matthew D. Brumley, Allen Kopet & Assoc., PLLC, Orlando, for Defendant.
ORDER DENYING SUMMARY JUDGMENT
This cause came on to be heard on Defendant’s motion for summary judgment. In this case, Plaintiff has sued his PIP insurance provider solely for disability-related lost income benefits. Defendant’s motion — supported by sworn statements — asserts that Plaintiff’s claim for such benefits did not include a report from any medical provider indicating he was disabled at any time. Defendant argues that submission of such a report is required in order to satisfy a PIP insured’s obligation to provide “written notice of the fact of a covered loss and amount of same.” Hence, judgment should be entered against Plaintiff for failure to fulfill the claim submission requirements of the coverage, argues Defendant. In essence, Defendant argues that submission of such a report to a PIP carrier is a condition precedent to filing suit in such a case.
Whether a PIP disability income claim must be accompanied by a medical professional’s report specifically stating that the claimant is or was disabled is apparently a novel question. Neither party has cited to any authority specific to this issue. It is the opinion of this court that the issue of PIP “disability” is, in general, a question of proof that is appropriate for trial. Indeed, a treating physician might be of the opinion that the claimant is fully able to work, and might state that opinion in writing. However, this should not preclude the claimant from claiming disability income benefits from the PIP carrier, or from filing suit if the claim were denied. Nor should this prevent the claimant from prevailing in such a suit, albeit that opinion might well be used against the claimant. Conversely, a treating physician’s statement that the claimant is, in fact, disabled, would not mandate that a PIP disability income claim be paid or that the claimant should prevail if suit were required to resolve any dispute over such a claim. Furthermore, a treating physician’s report might well not even speak to disability, concentrating solely on treatment. The claimant should, once again, not be precluded from claiming disability income loss.
It is well-established that a PIP insurer is obligated to investigate and authenticate a claim such as this within the applicable statutory period provided by section 627.736, Fla. Stat. Ivey v. Allstate Ins., Co., 774 So. 2d 679 (Fla. 2000). In case it is dissatisfied by medical records or other existing evidence that the claimant suffered a covered loss, subsections 6 and 7 of the statute empower the insurer to further its investigation. By the conclusion of the investigation period, however, the carrier must decide to either pay or deny the claim. The correctness of that decision, as here, is necessarily subject to legal challenge, in which the claimant is entitled to provide proof in addition to that which was submitted to the insurer prior to suit.
Accordingly, it is
ADJUDGED that the motion is denied, without prejudice to bringing this or a similar motion upon performing discovery, if it should occur that Plaintiff can provide no admissible proof that he was disabled as a result of the subject motor vehicle accident and lost income as a result.
* * *
