5 Fla. L. Weekly Supp. 557a
Insurance — Personal injury protection — Collateral source rule — Attorney’s fees — Offers of judgment — Action concerning personal injury protection benefits, where PIP insurer claims that bills of doctors were paid by health insurance and that plaintiff is not entitled to double recovery — Statutory collateral source rule has never applied to PIP actions, and no statute allows PIP carrier to avoid obligation to provide primary coverage by relying upon payment from a collateral source — Defendant’s motion for partial summary judgment denied — Issues of fact remain as to necessity of medical bills at issue, and insurer’s failure to pay medical bills within thirty days of receipt does not automatically waive insurer’s right to raise defenses in action for PIP benefits — Plaintiff’s motion for partial summary judgment denied — Despite public policy of discouraging insurers from contesting valid claims, and to reimburse successful policy holders forced to sue to enforce policies, legislature did not carve out exception to offer of judgment statute to exclude cases between insured and insurer — Motion to strike defendant’s offer of judgment denied
GEORGIANNA SMITH, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois corporation, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 96-3400 SC, Division H. April 2, 1998. James M. Barton, II, Judge.
ORDER DENYING PLAINTIFF’S AND DEFENDANT’S MOTIONS FOR PARTIAL SUMMARY JUDGMENT and PLAINTIFF’S MOTION TO STRIKE OFFER OF JUDGMENT
THIS CAUSE coming before the Court on the parties’ Motions for Partial Summary Judgment and Plaintiff’s Motion to Strike Offer of Judgment, and the Court having considered the argument submitted, it is hereby ORDERED AND ADJUDGED:
1. Both parties have filed motions for partial summary judgment in this lawsuit concerning personal injury protection (PIP) benefits. Defendant claims that the bills of Drs. Zakem and Winters have been paid by health insurance, and that Plaintiff is not entitled to double recovery. Plaintiff asserts that Florida law permits double payment under these circumstances and that the record supports the conclusion that the medical bills at issue should have been paid by Defendant within thirty days of submission.
In support of its position, Defendant cites the so-called collateral source rule and case law arising thereunder. See, e.g., Blue Cross and Blue Shield of Fla. v. Matthews, 498 So. 2d 421 (Fla. 1986). The collateral source rule requires reduction of damages in tort cases for certain payments made to an injured party. The statute containing the collateral source rule (F.S. §627.7372) was repealed in 1993 and replaced by F.S. 768.76. In any event, the statutory collateral source rule has never applied to PIP actions.
The Florida No-Fault law creates a comprehensive plan of automobile insurance coverage which the legislature, not the court, can amend. The legislature has determined that PIP benefits may be reduced by workers’ compensation and Medicaid benefits. F.S. §627.736(4). However, no statute allows a PIP carrier to avoid its obligation to provide primary coverage by relying upon payment from a collateral source such as is involved in the instant case. In a similar setting, the Third District Court of Appeal held, “there is no language in the act which can be interpreted as relieving a primary carrier, either temporarily or permanently, from its responsibility to make prompt payment of valid claims.” American Risk Assurance Co. v. Benrube, 407 So. 2d 993, 994 (Fla. 3rd DCA 1981).
2. Regarding Plaintiff’s Motion for Partial Summary Judgment, issues of fact remain as to the necessity of the medical bills at issue. An insurer’s failure to pay medical bills within thirty days of receipt does not automatically waive the insurer’s right to raise defenses in a lawsuit for PIP benefits. Jones v. State Farm Mut. Auto. Ins. Co., 694 So. 2d 165 (Fla. 5th DCA 1997).
3. Plaintiff claims that the offer of judgment served by Defendant should be stricken. According to Plaintiff, the insurance statute applicable to PIP cases “…is a one-way street offering potential for attorney’s fees only to the insured or beneficiary.” The apparent public policy underlying this aspect of the statute is to discourage insurers from contesting valid claims and to reimburse successful policy holders forced to sue to enforce their policies. Danis Industries v. Ground Imp. Tech., 645 So. 2d 420, 421 (Fla. 1994). Plaintiff concludes that, based on the foregoing authority, an insured should not be entitled to recover attorney’s fees under the offer of judgment statute. Cruz v. Allstate Insurance Company, 5 Fla. L. Weekly Supp. 230 (Fla. 11th Cir. 1997).
The offer of judgment statute (F.S. §768.79) embodies a clear legislative purpose to encourage “…the early elimination of litigation by encouraging realistic views of the claims made.” Hartford Cas. Ins. Co. v. Silverman, 689 So. 2d 346, 348 (Fla. 3rd DCA 1997). Had the legislature intended to carve out an exception to the offer of judgment statute to exclude cases between an insured and an insurer, it could have done so. Florida courts have not hesitated to award attorney’s fees to an insurer against an insured under the offer of judgment statute. E.g., State Farm Mut. Auto. Ins. Co. v. Marko, 695 So. 2d 874 (Fla. 2d DCA 1997).
2. Based on the foregoing, the parties’ Motions for Partial Summary Judgment and Plaintiff’s Motion to Strike Offer of Judgment are DENIED.
* * *
