4 Fla. L. Weekly Supp. 48a
Insurance — Personal injury protection — PIP suit amounts to claim for money damages based on breach of contract and, accordingly, party to suit has right to jury trial
RACHAEL CAMPBELL, Plaintiff, v. ALLSTATE INDEMNITY COMPANY, Defendant. County Court, Manatee County. Case No. CL 95-1426. April 17, 1996. Doug Henderson, Judge.
ORDER ON DEFENDANT’S OBJECTION TO
PLAINTIFF’S NOTICE FOR JURY TRIAL THIS CASE was heard on April 2, 1996 on Defendant’s Objection to Plaintiff’s Motion and Notice for Trial.
Defendant contends that this action is not “at issue” per Fla.R.Civ.P. 1.440 because Defendant’s Motion to Dismiss, filed on November 2, 1995, has not yet been heard. Extensive discovery has occurred in this PIP suit which was filed in July, 1995. Accordingly, this Court would normally consider Defendant’s Motion moot or waived, assume that Defendant generally denies the material allegations of the Complaint, and proceed to scheduling this case for trial. However, Plaintiff’s counsel stipulates to Defendant’s objection on this point; the Court will therefore not schedule this case for trial pending resolution of the Motion to Dismiss.
The second issue posed by the Defendant is whether a party to a PIP suit is entitled to a jury trial. There are no known Florida Appellate cases addressing this issue. Plaintiff contends that this is a common law breach of contract action for which a right to jury exists under Article V, Section 22 of the Florida Constitution. Defendant conversely claims that this a statutory cause of action which was created after the adoption of the Florida Constitution, and therefore does not qualify as a true breach of contract common law action for which a right to jury exists.
The Court has carefully considered the authority provided by counsel and feels that the First District’s dicta in Smith vs Barnett Bank of Murray Hill requires the scheduling of jury trials in PIP suits upon demand. Smith vs Barnett Bank of Murray Hill, 357 So 2nd 358 (1st DCA 1977). In Smith, the Court reversed a trial Court’s Order denying a demand for jury on issues of usury. The Court noted that no right of action for recovery of usurious interest was afforded at common law. However, an action for money damages “was among the class of cases in which the common law afforded a right of jury trial.” (Smith, p.359) The Court further held that it was insignificant that the usury issues were created by statute rather than by common law: “if the rule were otherwise, claims for money damages based on modern legislation would be subject to denial of a jury trial, and the right to jury trial would shrink as time and legislation change citizens’ rights of redress and access to the Courts.” (p.359)
This Court feels that a PIP suit, despite its statutory procedures and requirements, comes down to a claim for money damages based on breach of contract. This court does not read Kluger v. White, 281 So 2nd 1 (Fl.1973) as mandating no right to a jury in PIP disputes between an insured and their insurers under F.S. 627.730 et seq. as Defendant contends. Defendant also cites a New Jersey case, Manetti v. Prudential Property and Casualty Insurance Company, 482 A.2d 520 (N.J.1984), which is essentially on “all fours” for the Defense in denying a right to jury trial in PIP suits. The Manetti Court reaches this result “because the mandatory statutory obligations providing for PIP benefits far outweigh the contractual character of the insurance policy.” (p.521) It is, however, precisely this “contractual character” of a PIP suit which this Court relies upon in finding that a right to a jury trial exists.
This issue will hopefully be addressed in the higher Courts of this State, particularly in light of the issues concerning the statutory arbitration provisions (as noted by the Manetti Court) currently being litigated throughout the State. (see e.g. Advanced Orthopedic Institute v. Bankers Insurance Co., 3 Fla.L.Weekly Supp. 673).
Accordingly and being fully informed, it is
ADJUDGED THAT Defendant’s objection to Plaintiff’s Notice for jury trial be and is hereby DENIED.
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