15 Fla. L. Weekly Supp. 736a
Insurance — Personal injury protection — Mediation — Statute providing for mediation of personal injury claims arising from ownership or negligent use of motor vehicles does not apply to first-party claims for PIP benefits — Affirmative defense alleging that medical provider filed PIP suit prematurely before participating in mediation is stricken
GARDENS EFL IMAGING CENTER, LLC, a/a/o Fanny Munoz, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50 2007 SC 013997 XXXX MB (RF). May 6, 2008. Debra Moses Stephens, Judge. Counsel: Glenn E. Siegel, Lesser, Lesser, Landy & Smith, PLLC, Palm Beach. Brian E. Pabian, Luks, Santaniello, Perez, Petrillo & Gold, Ft. Lauderdale.
ORDER ON PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S FOURTH AFFIRMATIVE DEFENSE
THIS CAUSE came before this Court on Plaintiff’s motion to strike Defendant’s fourth affirmative defense; and upon hearing the arguments of counsel and being otherwise fully advised in the premises, 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’s fourth affirmative defense in the answer alleges that “Plaintiff filed this action prematurely. Specifically, the Defendant requested that both parties participate in mediation pursuant to Florida Statute §627.745.”
3. Section 627.745, Florida Statutes,(2007) applies to claims for personal injury and first party property damage claims arising from the ownership or negligent use of motor vehicles. Section 627.745(1)(a) 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).
4. The Court must construe § 627.745 by its plain and ordinary meaning because the statute is clear and unambiguous. See Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984). The Court, moreover, 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). The term “personal injury” under § 627.745 is 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.”) Personal injury is defined 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).
5. A first party claim for personal injury protection benefits is a breach of contract claim, not a tort claim; therefore, § 627.745 is inapplicable in the present case. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, (Fla. 2003) (Wherein the Florida Supreme Court explained that PIP actions are breach of contract actions; and thus are governed by contract principles.)
Accordingly, Plaintiff’s motion to strike Defendant’s fourth affirmative defense is GRANTED.
