15 Fla. L. Weekly Supp. 920b
Insurance — Personal injury protection — Complaint — Premature — Demand for mediation — Statute which provides that filing of demand for mediation tolls requirements for filing suit for 60 days does not apply to PIP cases
FRIEDMAN CHIROPRACTIC CENTER, P.A., (a/a/o Reuner Suarez), Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 08-00335 CC 26 (04). June 27, 2008. Gloria Gonzalez-Meyer, Judge. Counsel: Zachary A. Hicks, Samole & Berger, P.A., Miami, for Plaintiff. Christina Hudson.
ORDER GRANTING PLAINTIFF’S MOTION FOR RECONSIDERATION OF COURT’S MARCH 26, 2008ORDER DENYING PLAINTIFF’S MOTION TO STRIKEDEFENDANT’S SIXTH AFFIRMATIVE DEFENSE
[Original Opinion at 15 Fla. L. Weekly Supp. 620a]
THIS CAUSE, having come before this Court upon Plaintiff’s Motion For Reconsideration of Court’s March 26, 2008 Order Denying Plaintiff’s Motion to Strike Defendant’s Sixth Affirmative Defense, and the Court having been otherwise advised in the premises, makes the following findings of fact and law:
1.The underlying Complaint contains two counts. The first count pertains to Defendant’s alleged breach of contract for failure to pay personal injury protection benefits pursuant to Florida Statute § 627.736. The second count is for Defendant’s alleged breach of contract for failure to timely provide Plaintiff with an explanation of denial pursuant to Florida Statute § 627.736(4)(b).
2. Defendant filed an Answer and Affirmative Defenses, and in its Sixth Affirmative Defense states:
Plaintiff has failed to meet all conditions precedent prior to filing of the lawsuit in that Plaintiff has failed to comply with F.S. 627.745, and Defendant insurance policy general provision section #13 that addresses Mediation of Claims. Per the F.S. 627.745, the filing of a request for mediation tolls the applicable requirements for filing suit for a period of 60 days following the conclusion of the mediation process or the time prescribed in statute 95.11, whichever is later. Defendant states that a request for mediation was made with the Department of Financial Services pursuant to the F.S. 627.745, and pursuant to the insurance policy general provision section that governs the Mediation of Claims #13. Thus, the Plaintiff has filed suit prematurely in violation of these provisions and 60 day tolling period.
3. Plaintiff moved to strike the Defendant’s Sixth Affirmative Defense, and the Court denied Plaintiff’s Motion to Strike and found that Florida Statute § 627.745 applies to PIP cases. Plaintiff moved for reconsideration of the Court’s ruling.
4. The Court finds that Florida Statute § 627.745 applies to claims for personal injury and claims for property damage as stated unambiguously in the statute.
5. The statute referenced by Defendant’s affirmative defense and addressed by this Court 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.
Fla. Stat. § 627.745(1)(a) (2008) (emphasis added).
6. Plaintiff’s primary argument was that since the underlying claim is not for property damage or personal injury, then neither party can request mediation under Florida Statute § 627.745 as said statute does not apply to PIP claims.
7. Defendant argued that a PIP claim was a claim for personal injury and that the Court correctly ruled in its March 26, 2008 Order Denying Plaintiff’s Motion to Strike Defendant’s Sixth Affirmative Defense.
8. Florida law is clear that “when the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Holly v. Auld, 450 So. 2d 217 (Fla. 1984). See also, Barco v. School Board of Pinellas County, 2008 WL 321469 (Fla. 2008).
9. The Court finds that Florida Statute § 627.745 is clear and unambiguous in that it applies to claims for personal injury and property damage only.
10. The Court is mindful of Defendant’s argument that Personal Injury Protection insurance benefits contains the actual words personal injury therein. However, the proper question is whether a PIP claim is a claim for personal injury.
11. The Court may refer to the dictionary to ascertain the plain and ordinary meaning which the legislature intended to ascribe to statutory terms. L.B. v. State, 700 So. 2d 370, 372 (Fla. 1997). See also, Tampa v. Thatcher Glass Corp., 445 So. 2d 578, 579, n.2 (Fla. 1984) (holding that legal terms of art are to be given their legal meanings). To that end, the Fifth Edition of Black’s Law Dictionary defines “personal injury” as follows:
In a narrow sense, 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 of tort for negligence and under worker’s compensation statutes. But the term is also used (chiefly in statutes) in a much wider sense, and as including any injury which is invasive of personal rights, and in this signification it may include such injuries to the person as libel or slander, criminal conversation, malicious prosecution, false imprisonment, and mental suffering.
12. Florida Statute § 627.745 is simply unambiguous. It clearly applies to cases for personal injuries and property damage. All other actions that are not for personal injuries or property damage do not fall under the statute.
13. The underlying action is neither an action seeking recovery for personal injuries nor is it an action for property damage. Therefore, Florida Statute § 627.745 does not apply to PIP cases. The Court is mindful of Fidelity National Ins. Co. v. Armando Perera, 2 Fla. L. Weekly Supp. 508b (Fla. 11th Jud. Cir. Ct. 1994) and Padilla v. Liberty Mutual Ins. Co., 832 So. 2d 916 (Fla. 1st DCA 2002) but finds that these cases are not controlling regarding the issue before this Court.
14. Therefore, the Court strikes the Defendant’s Sixth Affirmative Defense.
