15 Fla. L. Weekly Supp. 829c
Insurance — Personal injury protection — Complaint — Premature — Demand for mediation — Statute which provides that filing demand for mediation tolls requirements for filing suit for 60 days does not apply to first-party PIP claims
FAITH MEDICAL GROUP, INC., as assignee of Ana Brito, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County, Civil Division. Case No. 07-6579 CC 26 (3). May 7, 2008. Patricia Marino Pedraza, Judge. Counsel: Christian Carrazana, Panter, Panter & Sampedro, P.A., Miami, for Plaintiff. Paula Ferris, Office of the General Counsel, for Defendant.
ORDER ON PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S SECOND AFFIRMATIVE DEFENSE
THIS ACTION came before the Court on the 23rd day of April 2008 on Plaintiff’s motion to strike Defendant’s second affirmative defense; and upon hearing the arguments of counsel, the Court makes the following findings of fact and law:
1. This is a breach of contract action for personal injury protection benefits governed by § 627.736, Florida Statutes, (2007).
2. Defendant alleges as its second affirmative defense that suit was filed prematurely because Defendant requested pre-suit mediation pursuant to § 627.745, Florida Statutes, (2007).
3. Plaintiff served a reply alleging that Defendant’s second affirmative defense fails to state a legal defense upon which relief may be granted because § 627.745 does not apply to first party breach of contract claims for no fault benefits.
4. Plaintiff now moves to strike said affirmative defense for failure to state a legal defense.
5. Section 627.745(1)(a), Florida Statues, (2007) states:
“In any claim filed with an insurer for personal injury in an amount of $10,000 or less or any claim for property damage in any amount, arising out of the ownership, operation, use, or maintenance of a motor vehicle, either party may demand mediation of the claim prior to the institution of litigation.” (emphasis added).
6. The statutory language under § 627.745 is plain and unambiguous; therefore, the statute must be construed by its plain and ordinary meaning. See Metropolitan Dade County v. Milton, 707 So.2d 913 (Fla. 3rd DCA 1998) (“When the language of a statute is clear and unambiguous, the statute must be given its plain and ordinary meaning.”) (citation omitted). The Court, in construing the statute by its plain and ordinary meaning, may refer to the dictionary to ascertain the plain and ordinary meaning which the legislature intended to ascribe to statutory terms. See L.B. v. State, 700 So.2d 370, 372 (Fla. 1997). The term “personal injury” under § 627.745 is not an ordinary term; but instead, a legal term which must be presumed to have been used by the legislature according to its legal meaning. See Tampa v. Thatcher Glass Corp., 445 So.2d 578, 579, n.2 (Fla. 1984) (“Terms of special legal significance are presumed to have been used by the legislature according to their legal meanings.”) (emphasis added). Personal injury is defined by the legal dictionary as “a hurt or damage done to a man’s person, such as a cut or bruise, a broken limb, or the like, as distinguished from an injury to his property or his reputation. The phrase is chiefly used in this connection with actions in tort for negligence.” Black’s Law Dictionary, 786 (6th Ed. 1990) (emphasis added).
7. A first party claim for no fault benefits is a breach of contract claim, not a personal injury claim in tort; therefore, § 627.745 is inapplicable in the present case. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla. 2003) (Explaining that PIP actions are breach of contract actions; and thus are governed by contract principles.)
8. The Court has not overlooked § 627.745(1)(c), which states that an “insurance policy must specify in detail the terms and conditions for mediation of a first party claim.” (emphasis added). Although a breach of contract suit for no fault benefits is a first party claim, a personal injury claim can be a first party claim. For instance, a personal injury claim involving UM benefits is a first party claim where the carrier stands in the shoes of the negligent tortfeasor. See Sturdy v. Allied Mut. Ins. Co., 457 P.2d 34, 36 (Kan. 1969) (“[U]ninsured motorist coverage is protection afforded an insured by first party insurance against bodily injury inflicted by an uninsured motorist, after the liability of the uninsured motorist for the injury has been established.”) (emphasis added); Mercury Ins. Co. v. Moreta, 957 So.2d 1242 (Fla. 2nd DCA 2007); Ellsworth v. Ins. Co. of N. America, 508 So.2d 395 (Fla. 1st DCA 1987). Thus, the statutory language under § 627.745(1)(c) does not necessarily imply that the statute applies to first party breach of contract claims for no fault benefits.
9. Defendant, on the other hand, argues that § 627.745 is enforceable in this case because the legislature did not expressly rule out breach of contract claims for no fault benefits. The Court disagrees. Section 627.745 only mentions claims for personal injury for $10,000,00 or less and property damage. The statute is silent as to first party breach of contract claims for no fault benefits. Under the doctrine of expressio unius est exclusio alterius, the mention of one thing excludes all others. Moonlit Waters Apartments Inc. v. Cauley, 666 So.2d 898 (Fla. 1996). The Court, by applying that doctrine here, finds that the legislature intended to exclude breach of contract claims for no fault benefits from the statute’s ambit in light of the legislature’s silence.
9. The Court is unpersuaded by the case law cited by Defendant.1 Defendant cites the First District’s dicta in Padilla v. Liberty Mutual Ins. Co., 832 So.2d 916 (Fla. 1st DCA 2002) where the Court mentioned that the insured’s petition for a declaratory statement with the Department of Insurance is not a request for mediation under § 627.745. The First District’s dicta in that respect does not address whether § 627.745 applies to breach of contract claims for no fault benefits. Further, the District Court’s dicta is not lawbecause Padilla only addressed whether Department of Insurance has primary jurisdiction to determine the mileage reimbursement rate under PIP policies; and whether the Department could determine the proper amount of same that is payable under the PIP statute.2 “Words or comments in appellate opinions that are not a necessary part of the rationale or conclusion in that case are obiter dictum and have no precedential value or stare decisis effect.” Mouzon v. Mouzon, 458 So.2d 341, 391 n. 18 (Fla. 5th DCA 1984) (emphasis added.). An appellate decision can only be considered precedent on a question that is duly considered and addressed by the appellate court. Id.; See also Cruz v. State, 437 So.2d 692, 698 (Fla. 1st DCA 1983) disapproved on other grounds, 548 So. 2d 656. (“[E]ven if an opinion is written, the decision may not be considered as precedent for a point not mentioned therein.”) The Padilla Court did not decide whether § 627.745 is applicable to breach of contract actions for no fault benefits; and for that reason, Defendant’s reliance on Padilla is misplaced.
10. In addition to Padilla, Defendant cites the dissenting opinion in Fidelity Nat’l Ins. Co. v. Perera, 2 Fla. L. Weekly Supp. 508b (Fla. 11th Jud. Cir. App. 1994) where Judge Kreeger opined that § 627.745 applies to breach of contract claims for no fault benefits. A dissenting opinion, however, is not law. Munnerlyn v. Wingster, 825 So.2d 481, 483 (Fla. 5th DCA 2002).
ACCORDINGLY it is hereby ORDERED & ADJUDGED based on the foregoing analysis of fact and law that
Plaintiff’s motion to strike Defendant’s second affirmative defense is GRANTED.
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1Despite the case law cited by Defendant, the Court finds that there is no controlling precedent on point; therefore, the Court’s decision rests on the plain meaning of the statute.
2The Padilla Court held that the Department did not have primary jurisdiction to decide the matter; and consequently, the Department did not err in dismissing the insured’s petition because the subject matter of the petition was currently pending in a court proceeding. Id. at919.
