4 Fla. L. Weekly Supp. 587a
Insurance — Personal injury protection — Credits — Workers’ compensation benefits
AMERICAN HARDWARE MUTUAL INSURANCE COMPANY, Appellant, v. CLIFFORD SAUNDERS, Appellee. 17th Judicial Circuit in and for Broward County. Case Nos. 95-14767 (04) (CIVIL APPEAL) and 95-15814 (09) (CIVIL APPEAL), Consolidated Appeal. February 20, 1997. Appeal from Lower tribunal, County Court, in and for Broward County, Case No. 95-2591 (55) (Judge Pollock). Counsel: Michael S. Bendell, Michael Bendell, P.A., Boca Raton, for Appellee. James Blecke, Deutsche & Blumberg, Miami, for Appellant. Thomas J. Caldwell, Caldwell & Carroll, Miami, for Appellant.
APPELLATE OPINION
(Before Judge Cocalis). Insurer appeals an adverse final summary judgment, and it appeals the resulting adverse cost and attorney’s fees judgments. This court affirms in all respects.
The underlying case was filed as an Auto Personal Injury Protection (PIP) insurance dispute arising from a motor vehicle accident dated May 4, 1988. Because the accident occurred within the course and scope of the insured’s employment, the worker’s compensation carrier paid the insured’s medical bills as primary first party coverage. In a prior law suit, the insured sued the tort feasor, lost at the first trial and, after a reversal and remand, (Saunders v. Alois, 604 So.2d 18 (Fla. 4th DCA 1992)), the insured won a final summary judgement for total of his medical bill recovery together with pre-judgment interest back to the date of the original adverse judgment which was reversed, less an off-set for monies re-paid directly from the tort feasor’s liability carrier to the worker’s compensation carrier.
Under §440.39, Florida Statutes, the insured was entitled, at a minimum, to a reduction of sums repaid to the worker’s compensation for litigation costs and attorney’s fees, thus leaving some net recovery on the medical bills to the insured in addition to pre-judgment interest. As a result of the payments to the worker’s compensation carrier, it was undisputed that a release of worker’s compensation lien resulted.
Because South Carolina Insurance Company v. Arnold, 467 So. 2d 324 (Fla. 2d DCA 1985) is consistent with the language of the PIP statute, the purpose of the statute, the equities, and basic common sense, this court, like the trial court, adopts South Carolina Insurance Co. v. Arnold, 467 So. 2d 324 (Fla. 2d DCA 1985), and its progeny. Allstate Insurance Co. v. Mazorra, 599 So. 2d 739 (Fla. 3d DCA 1992); Atlanta Casualty Co. v. Yadevia, 579 So. 2d 213 (Fla. 2d DCA 1991); Fortune Insurance Co. v. McGhee, 571 So. 2d 546 (Fla. 2d DCA 1990).
Further, the Circuit Court is bound by decisions of other District Courts of Appeal, absent intradistrict conflict. Prado v. State, 596 So. 2d 665 (Fla. 1992); See also, Weinman v. McHaffie, 470 So.2d 683 (Fla. 1985).
Because this is not a case of a claim shortly after the accident and before the release of the worker’s compensation lien, Appellant misplaces its reliance on Diaz v. South Carolina Insurance Co., 397 So. 2d 386 (Fla. 3d DCA 1981) and on Jorglewich v. Lumbermens Mutual Casualty Co., 522 So. 2d 114 (Fla. 5th DCA 1988). Both Diaz and Jorglewich deal with situations before resolution of the worker’s compensation lien, not after release of the lien rights such as in this case. In Fortune Insurance Co. v. McGhee, 571 So. 2d 546 (Fla. 2d DCA 1990), when it reaffirmed So. Carolina Insurance Co. v. Arnold, 467 So. 2d 324 (Fla. 2d DCA 1985), the Second district explained:
Thus, when benefits are received in the period shortly after the automobile accident, the PIP statute contemplates credit for the worker’s compensation benefits already received by [plaintiff]. When the liability claim is settled, however, the plaintiff is obligated to reimburse the worker’s compensation carrier. At that point, the plaintiff is entitled to receive additional benefits from the PIP carrier because the credit for worker’s compensation no longer exists.
Fortune, at 547 (emphasis added).
The Insurer argues that Arnold is distinguishable (the insurer calls it the “critical distinction”) because Arnold and its progeny dealt with a settlement, and the prior Saunders case dealt with a judgment. This court, however, finds that, while there is a difference between a judgment and a settlement, such a difference is not a legally significate distinction for purposes of this case. From the Plaintiff’s view, Plaintiff was out of pocket or in the same posture for the same amount had the case been settled or judgment entered. Because this $2,000 was deducted from what would otherwise be his judgment amount of $10,593.00, Plaintiff effectively is out of pocket or in the same posture, whether the case was settled or judgment entered.
Because the trial court calculated the amount of PIP benefits due in accordance with the formula in Fortune Insurance Co. v. McGhee, 571 So. 2d 546 (Fla. 2d DCA 1990), this court affirms the calculations as well.
As to Appellee’s motion for attorney’s fees under §627.428, Florida Statutes, and costs for this appeal, the court grants the motion, and determines that the Appellee is entitled to both costs and attorney’s fees for the appeal with the dollar amount of both to be determined by the trial court on remand.
AFFIRMED.
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