13 Fla. L. Weekly Supp. 1155a
Insurance — Personal injury protection — Deductible — Error to deny insurer’s motion for summary judgment, which asserted that no liability existed for bills that were applied to deductible, on ground that insurer had waived deductible issue by failing to raise issue at pre-trial conference — Application of deductible provision of insurance policy cannot be waived, as it is not affirmative defense that must be pled and proved — Insured has burden to prove that loss exceeds deductible amount
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. DIGITAL MEDICAL DIAGNOSTIC, a/a/o JESUS GABER, MIRIAM GABER, LIDICE SOTO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 05-129 AP, 05-132 AP, 05-133 AP Consolidated. L.C. Case Nos. 02-013705-SP 23; 02-013706-SP 23; 02-013703-SP 23. September 15, 2006. An Appeal from the County Court for Miami-Dade County, Linda Singer Stein, J. Counsel: Michael A. Neimand, Office of the General Counsel, for Appellant. Marlene S. Reiss, Stephens, Lynn, Klein, La Cava, Hoffman & Puya P.A., for Appellee.
Affirmed. 32 Fla. L. Weekly D1392a
(Before LEONARD E. GLICK, ROBERTO M. PINEIRO, and PETER R. LOPEZ, JJ.)
(GLICK, J.) This matter came on to be heard from a denial of a summary judgment motion against Appellant United Automobile Insurance Company on three consolidated personal injury cases. Each of the insureds, Jesus Gaber, Mariam Gaber and Lidice Soto were involved in automobile accidents sustaining personal injuries. After receiving medical treatment, they assigned their personal injury protection (PIP) benefits under their policies to the Appellee Digital Medical Diagnostic, a health care provider.
Appellant raised as an affirmative defense and in its motion that no liability existed because all the medical bills submitted for payment by the Appellee were applied and fell under the deductible provision of each insured’s policy. While Appellant did not submit their policies into evidence, it did submit a declaration page, PIP registers with forms and an affidavit of its litigation adjuster. The lower court denied Appellant’s motion on the ground that it had waived the deductible issue because it failed to raise it at the pre-trial conference and never timely requested clarification or rehearing. The Appellant argues on appeal that as a matter of law the application of a deductible provision cannot be waived as it is not an affirmative defense that must be pled or proved. We agree and reverse.
It is well established that affirmative defenses are waived unless they are pled. St. Paul Mercury Ins. Co. v. Coucher, 837 So. 2d 483, 487 (Fla. 5th DCA 2002). A deductible is a clause in an insurance policy that relieves the insurer of responsibility for an initial, specified loss of the kind insured against. General Star Indem. Co. v. West Florida Village Inn, Inc., 874 So. 2d 26, 33 (Fla. 2d DCA 2004). It is subtracted from the statutory mandated PIP coverage limit of $10,000.00. International Bankers Ins. Co. v. Arnone, 552 So. 2d 908, 911 (Fla. 1989). Appellee had contractually agreed to be financially responsible for the first $2000.00 in PIP benefits in the event of a loss within the policy period. Therefore, the Appellant’s obligation to make PIP payments did not ripen until after this $2000.00 deductible was satisfied. International Bankers Ins. Co., 552 So. 2d at 911.
Deductibles only apply to covered losses. General Star Indem. Co., 874 So. 2d at 33. Thus, a deductible provision, being a basic part of the policy, is not an affirmative defense which must be pled and proved by the insurer. Appalachian Ins. Co. v. United Postal Savings Ass’n, 422 So. 2d 332, 334 (Fla. 3d DCA 1982), rev. denied, 430 So. 2d 452 (Fla. 1983). Appalachian addresses the applicability of a deductible. That court determined that the insured has the burden to prove that a loss exceeds the deductible amount. This holding applies to circumstances where no dispute exists that the loss from a single occurrence was covered. Id. at 333. In this case, Appellee conceded its responsibility, upon receipt of a medical bill, to determine whether a deductible applied before filing suit.
In Caruso v. Baumle, 880 So. 2d 540 (Fla. 2004), which involved a third party PIP suit, an affirmative defense of set-off of PIP benefits was asserted as a collateral source against the jury award. Id. at 542. That court clearly found that §627.736(3), Fla. Stat. (2001) controls the set-off of PIP benefits over the general set-off statute of §768.76(1), Fla. Stat. (2001) in automobile accident cases. Id. at 544. The $10,000.00 PIP policy limit in Caruso was set-off against a jury award for the medical bills that was higher than the policy limit. Id. at543.
The Caruso court also determined that absent waiver or stipulation of the parties to have the trial judge consider set-off post-trial, evidence of PIP benefits under §627.736(3), Fla. Stat. (2001) for purposes of a set-off must be presented to the jury and the jury instructed to set-off the PIP benefits. Id. 545. This implies that a set-off under §627.736(3), Fla. Stat. must be asserted as an affirmative defense prior to trial. Felgenhauer v. Bonds, 891 So. 2d 1043, 1046 (Fla. 2d DCA 2004).
Appellant argues that Caruso v. Baumle, 880 So. 2d 540 (Fla. 2004) never held that the application of a deductible provision is an affirmative defense and that the general set-off statute controls in this case. We agree with the Appellant that Caruso never held that the application of a deductible provision was an affirmative defense. Neither did it address any first party contractual claims as in this case. Further, Caruso is silent as to whether it additionally applied the $2000.00 deductible provision as a set-off to reduce the jury award. Appellee had argued that Appellant had sought to apply the deductible provision as a set-off of sorts to reduce any future jury award. Without reaching the set-off issue, we note that in order for a deductible provision to be a set-off, the plain language of a statute must mandate it and that the plain language of §627.736(3), Fla. Stat. in Caruso did not. Hannah v. Newkirk, 675 So. 2d 112, 113 (Fla. 1996) (plain language of statute mandated that in addition to reducing verdict by amount of PIP benefits, set-off of elected PIP deductible was required when no permanent injury existed).
In this first party PIP case, we find that the application of the deductible provision as a matter of law is not an affirmative defense and the lower court erred by finding that it was waived. Further, contrary to the Appellee’s argument, no material issues of fact exist as to liability in applying the deductible provision. The undisputed competent evidence showed that unlike Caruso, the total amount of the medical bills for each insured was below the PIP policy limit and fell below the deductible provision amount. Appellee failed to prove that the loss exceeded the deductible amount and therefore Appellant did not breach the insurance contract. Accordingly, the denial of the summary judgment entered on the consolidated cases is REVERSED and REMANDED for further proceedings consistent with this opinion and application of the deductible. Appellee’s motion for appellate attorney’s fees is denied. (PINEIRO and LOPEZ, JJ. concur.)
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