4 Fla. L. Weekly Supp. 134a

Employer-employee relations — Employee benefit plans — Employee who received workers’ compensation benefits for work-related injury was specifically precluded by provisions of plan document from receiving short-term disability benefits for same injury — Plan document, which expressly precluded payment of short-term disability benefits for injury or illness covered by workers’ compensation, controlled over summary description of plan, which did not mention restrictions on eligibility for employees receiving workers’ compensation benefits — No genuine inconsistency, uncertainty or ambiguity exists with regard to provisions of plan document precluding payment of disability benefits to workers’ compensation recipients

FRANCES SARCONE, Appellant, vs. PAUL SOUTHERN, JUDY SCHUNN, and JAMES DUFFY, PLAN COMMITTEE FOR MEDCHOICE GROUP LIFE AND DISABILITY INSURANCE PROGRAM, Appellee. 13th Judicial Circuit in and for Hillsborough County, Circuit Civil Division. Appellate Case No. 94-8751, Division: B. County Court Case No. 93-7705. July 3, 1996. Appeal from the County Court in and for Hillsborough County; Charlene E. Honeywell, Judge. Counsel: Kathleen T. Hessinger, Attorney for Appellant. John W. Campbell, Attorney for Appellee.

OPINION

(Menendez, M., J.) Frances Sarcone, Appellant, appeals the decision of the County Court granting final summary judgment in favor of Appellees, Paul Southern, Judy Schunn, and James Duffy, the Plan Committee for Medchoice Group Life and Disability Insurance Program. On appeal, Mrs. Sarcone raises the issues of whether, as a matter of law, the terms and conditions of the Medchoice Short-Term Disability Plan document supersede the terms and conditions of the Medchoice Short-Term Disability Summary Plan Description when their terms and conditions are in conflict and ambiguous, and also whether, as a matter of law, the terms and conditions within the Medchoice Short-Term Disability Plan document itself are in conflict or ambiguous.

FACTS

Appellant, Frances Sarcone, has been employed as a registered pharmacist with National Rx Services, Inc., a wholly-owned subsidiary of Medco Containment Services, Inc., since 1987. As an employee of National Rx Services, Inc., Appellant is eligible to receive various benefits through the Medchoice Group Life and Disability Insurance Programs and the Medchoice Health Care Plan. These benefits include short-term disability insurance which is offered through the “Medchoice Short-Term Disability Plan” (“the Plan”). During short periods of disability, the Plan provides for salary continuance based on years of service. In approximately 1989, Appellant was provided with a Summary Plan Description of the Group Life and Disability Insurance Programs and the Medchoice Health Care Plan, which briefly describes the principal terms and conditions of benefit eligibility. The Appellees are individual members of the administrative committee of the Plan.

On July 2, 1992, Appellant fell and, as a result, was injured at work, and she was absent from work for approximately eight weeks. She applied for and received workers’ compensation for her injury, pursuant to Chapter 440, Florida Statutes. On July 27, 1992, Appellant submitted an application for short-term disability benefits under the Plan in order to recover the difference between the payments she would receive from workers’ compensation, $409.00 per week, and her net salary, $673.18 per week plus 10% contributed to her 401K Plan.

On her application for short-term disability benefits, Appellant indicated that her disability occurred at work. On August 12, 1992, Appellant’s application for short-term disability benefits was denied by the claims processing company on the basis that the Medchoice Short-Term Disability Plan precludes an individual from receiving disability benefits for any sickness or injury covered by workers’ compensation. The Summary Plan Description did not mention this restriction on eligibility. On December 15, 1992, Appellant appealed the denial of her short-term disability claim with the Director of Benefits, but on December 24, 1992, that appeal was also denied, pursuant to the same restriction. At this time, Appellant was provided with a copy of the section of the full Plan document containing this restriction.

On June 2, 1993, Appellant filed a breach of contract action against Medco Containment Services, Inc. and National Rx Services, Inc., claiming that she had been improperly denied short-term disability benefits under the Plan. Subsequently, Mrs. Sarcone amended her complaint so as to substitute the proper, and current, party Defendants/Appellees. Motions for summary judgment were filed by both sides and were heard by the County Court, on September 15, 1994. On December 14, 1994, Judge Charlene E. Honeywell granted Defendants’/Appellees’ motion for summary judgment and entered a final judgment in their favor. Appellant filed a Notice of Appeal to the Circuit Court on December 20, 1994. The matter is now before this Court for review of the county court decision.

DISCUSSION

Appellant maintains that she was improperly denied short-term disability benefits, first, because of an ambiguity and conflict that allegedly exists between the Medchoice Short-Term Disability Plan document and the Medchoice Short-Term Disability Summary Plan Description, and secondly, because of an ambiguity and conflict that allegedly exists within the Medchoice Short-Term Disability Plan document itself.

I

Appellant asserts that ambiguity exists between the Medchoice Short-Term Disability Plan document and the Medchoice Short-Term Disability Summary Plan Description because a controlling feature of coverage in the Plan document is not recited in the Summary Plan Description. The Short-Term Disability Summary Plan Description provides, in relevant part:

If you become disabled due to a sickness or injury and are unable to work for a short period of time, your pay will continue under the salary continuance program based on your years of service as shown below.

Years of % of Base Benefit Service Salary Period 3 months but 100% First week less than 1 year 80% Next 3 weeks 50% Next 22 weeks 1 year but less 100% First 4 weeks than 3 years 80% Next 4 weeks 50% Next 18 weeks 3 years but less 100% First 8 weeks than 7 years 80% Next 8 weeks 50% Next 10 weeks 7 years but less 100% First 13 weeks than 15 years 80% Next 13 weeks 15 years and over 100% First 26 weeks . . . . Benefit Reduction: These benefits will be reduced by disability payments you receive from any state mandated or federal program.

    At the time of her disability, Appellant had been employed with National Rx Services between three and

 seven years. As such, she interpreted the above language to mean that she would be entitled to receive 100% of

 her base salary during the first eight weeks of her disability, offset by the amount of any disability payments she

 was receiving through a state mandated program, such as workers’ compensation, pursuant to the Benefit

 Reduction provision. As a result of this interpretation, Appellant believed she would receive the difference

 between the $409.00 per week she received from workers’ compensation and her net salary of $673.18, plus the

 10% contributed to her 401K Plan.

    However, the full Plan document contains a specific restriction on the payment of short-term disability

 benefits to any person who has received workers’ compensation benefits. The applicable plan provision, located

 in Section 9 of the full Plan document, states that,

    [n]o benefits shall be payable … for any Total Disability due to or arising out

    of:

    . . . .

    (i) any Sickness or Injury covered by any applicable workers’ compensation or occupational disease law or similar

    law.

 Appellant takes issue with this restriction because it is not mentioned in the Summary Plan Description, which

 sets forth the principal terms and conditions of the Medchoice Short-Term Disability Plan. Further, Appellant

 alleges that she was unable to obtain a copy of the full Plan document until six months after her injury, despite

 several earlier attempts to obtain such.

    Appellant insists that the Summary Description’s silence on this restriction to coverage is to be treated in the

 same manner as an express ambiguity in an insurance contract, citing, Rucks v. Old Republic

 Life Ins. Co., 345 So. 2d 795, 796 (Fla. 4th DCA 1977). Accordingly, Appellant argues that the

 ambiguity in the Plan must be broadly construed in favor of “the insured,” and against the insurer, citing,

 Premier Ins. Co. v. Adams, 632 So. 2d 1054, 1055 (Fla. 5th DCA 1994). Appellant

 adds that the broadest construction of the Plan would require Appellees to pay Appellant the difference between

 her base salary and her workers’ compensation benefits for the eight weeks she was absent from work due to

 her injury. Nonetheless, one cannot overlook the fact that the introduction to the Summary Plan Description

 contains an important disclaimer. In pertinent part, the introduction provides,

    [p]lease keep in mind that this summary plan description is only a summary. It does not contain every detail

    addressed in the Plan. Although every effort has been made to ensure that the descriptions in this summary are

    accurate, the ultimate source of authority for eligibility and benefits determination is the applicable plan document

    or insurance policy. You, your beneficiaries, and your personal representatives may examine the plan, the

    insurance policy or plan document, and other applicable legal documents during regular business hours, or by

    appointment in the office of the Plan Administrator.

    Appellees maintain that because of this disclaimer, the full Plan document is controlling on all matters of

 benefit eligibility. To the contrary, Appellant asserts that the Summary Description is the only document which

 she was able to see, and thus, the disclaimer directing the insured to the full Plan document for coverage details

 is ineffective, citing Hansen v. Continental Insurance, 940 F. 2d 971 (5th Cir. 1991) and

 McKnight v. Southern Life and Health Insurance Co., 758 F. 2d 1566 (11th Cir. 1985).

 In considering these arguments, the court observes that the cases cited by Appellant are distinguishable from the

 instant case. The cited cases involve insurance plans covered by the Employee Retirement Income Security Act

 of 1974, (“ERISA”), which discuss the strict requirements concerning the contents of summary plan

 descriptions and actual plan documents of ERISA qualified plans. The Medchoice Short-Term Disability Plan is

 not, and Appellant so concedes, an employee benefits plan covered by ERISA, and as such, these cases are not

 readily applicable to the situation at bar.

    Additionally, Appellant argues that Florida insurance law does not give disclaimers effect when resolving

 conflicts between summary and full plan descriptions. Quoting Rucks v. Old Republic Life Ins.

 Co., 345 So. 2d 795 (Fla. 4th DCA 1977) and Equitable Life Assurance Society of the

 United States v. Wagoner, 269 So. 2d 747 (Fla. 4th DCA 1972), Appellant asserts that where there is a

 conflict between the Plan document and the Summary Plan Description, courts will honor the text that gives the

 insured the broadest coverage. To invoke Florida insurance law, however, the Short-Term Disability Plan must

 fall within the scope of the insurance statutes. The Medchoice Plan fails to meet these criteria. Despite

 Appellees’ reference to the Short-Term Disability Plan as `insurance,’ the Medchoice Plan lacks two necessary

 attributes of insurance. First, insurance plans regulated under Florida law ordinarily include five characteristics:

 “an insurable interest, a risk of loss, an assumption of risk by the insurer, a general scheme to distribute the

 loss among the larger group of persons bearing similar risks, and the payment of a premium for the assumption

 of risk.” Professional Lens Plan, Inc. v. Department of Insurance, 387 So. 2d 548 (Fla.

 1st DCA 1980). The Plan lacks at least two of these features. Namely, the Plan neither distributes losses among

 a larger group of people with similar risks nor requires the payment of a premium by employees. Second, the

 Florida insurance statutes apply to insurance “vendors” and the Appellees are not in the business of selling

 insurance. See Farley v. Gateway Insurance Co., 302 So. 2d 177 (Fla. 2nd DCA 1974).

    While the court is not unsympathetic to Appellant’s efforts and frustration in this matter, the court simply

 cannot disregard what it holds to be clear and logical. A summary description is, by its very name, intended to

 be abbreviated and concise. The purpose of a summary description is not to explain all details of a plan, but

 rather to give an overview of its central provisions. It is the purpose of the full Plan document, on the other

 hand, to define all terms and conditions in detail. In the instant case, the Summary Plan Description briefly

 described the core terms of the full Plan document and also explained, through the disclaimer, that the full Plan

 was the ultimate source of authority on eligibility for short-term disability benefits. The full Plan, in turn,

 clearly precludes coverage to recipients of workers’ compensation.

    Accordingly, the court affirms the finding of the lower court that there is no genuine inconsistency,

 uncertainty or ambiguity in meaning with regard to the Medchoice Short-Term Disability Plan or the Summary

 Plan Description, after resorting to the ordinary rules of construction. The court also affirms the lower court’s

 finding that it is the Short-Term Disability Plan document, not the Summary Plan Description, that determines

 the terms and conditions of the Plan and benefit eligibility.

II

    Appellant contends that even if the terms of the full Plan document prevail over the Summary Plan

 Description, she is still entitled to short-term disability benefits, as the terms and conditions set forth in the full

 Plan document itself are ambiguous and in conflict. Specifically, Appellant alleges a conflict between the

 provisions of Sections 7 & 9 of the Medchoice Short-Term Disability Plan. Section 7 of the Plan explains the

 schedule for payment of benefits and states, in pertinent part:

    (a) The benefit payable by the Plan while a participant is subject to one period of total disability, shall be based on

    the following schedule:

    Years of Service        % of Base Salary               Benefit Period                           

    3 years but less    100%                  First 8 weeks

    than 7 years          80%                  Next 8 weeks

                           50%                   Next 10 weeks

       For any number of days of total disability of less than a full week, the benefits payable shall be one fifth (1/5) of the

    applicable weekly benefits multiplied by the number of days of total disability in such

    week.

       (b) Benefits that a participant receives from a statutory state disability plan will offset the benefits provided through

    the Plan by $1.00 for each $1.00 received under such state disability plan.

 Once again, Section 9, provides, in relevant part:

    [n]o benefits shall be payable … for any Total Disability due to or arising out

    of:

    . . . .

    (i) any Sickness or Injury covered by any applicable workers’ compensation or occupational disease law or similar

    law.

    Appellant maintains that there is an ambiguity and conflict within the Short-Term Disability Plan document,

 “as Section 7 requires a set-off for workers’ compensation benefits and Section 9 specifically excludes any

 short-term disability if the insured receives workers’ compensation benefits.” Further, Appellant once again

 asserts that if an ambiguity is found to exist in the language in the Plan, then such language should be liberally

 construed in favor of the insured and against the insurer, citing, Premier Ins. Co. v. Adams, 632

 So. 2d 1054 (Fla. 5th DCA 1994). Ultimately, Appellant urges that the set-off provision in Section 7 should

 control over the exclusion provision in Section 9, allowing her to recover the difference between her base salary

 and the workers’ compensation benefits under the Short-Term Disability Plan.

    It is well established that specific provisions of a contract are to take precedence over general provisions, if a

 conflict between such provisions is deemed to exist. International Ship Repair & Marine

 Servs., Inc. v. General Portland, Inc., 469 So. 2d 817, 818 (Fla. 2d DCA 1985). Consequently, this

 court finds that while Section 7 of the Short-Term Disability Plan generally addresses a set-off for benefits

 received from a statutory state disability plan, Section 9 specifically addresses preclusion of short-term disability

 in the situation where an individual has already received workers’ compensation benefits. Therefore, the court

 finds that there is no genuine inconsistency, uncertainty or ambiguity in meaning with regard to the provisions

 within the Medchoice Short-Term Disability Plan.

CONCLUSION

    Appellant, Frances Sarcone, was properly precluded from receiving short-term disability benefits for her

 injury under the Medchoice Short-Term Disability Plan because she received workers’ compensation benefits.

 Furthermore, as a matter of law, there is no genuine inconsistency, uncertainty or ambiguity in meaning with

 regard to the Medchoice Short-Term Disability Plan or the Medchoice Summary Plan Description. Moreover,

 the provisions of the Medchoice Short-Term Disability Plan document control over those of the Medchoice

 Short-Term Disability Summary Plan Description when their provisions are in conflict and ambiguous.

 Accordingly, the decision of the County Court is AFFIRMED.

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