5 Fla. L. Weekly Supp. 126a
Insurance — Personal injury protection — Assignment — Plaintiff’s claim for wage loss for two days preceding her admission to hospital not barred by plaintiff’s assignment of PIP benefits to hospital — Entitlement to wage loss benefits accrued on the dates loss was sustained, which was prior to assignment of benefits, and insurer should have prioritized wage loss claim before payment of assignee’s bill
LORENE A. ECCLESTON, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. MC 95-15524 RB. September 25, 1997. Nancy Perez, Judge.
ORDER
THIS CAUSE came before the Court on August 25, 1997, on the motions for summary judgment filed by plaintiff, LORENE A. ECCLESTON (“ECCLESTON”), and defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (“STATE FARM”). The Court considered the motions, argument of counsel, the pleadings, the depositions on file, the affidavit of plaintiff, the requests for admissions, the stipulations of the parties, the case law, and being otherwise fully advised in the premises, the Court finds as follows:
1. On May 8, 1997 [5 Fla. L. Weekly Supp. 28a], the Court determined that Wellington Regional Medical Center (hospital) was not a “public hospital” and, as a result, was not entitled to a lien on no-fault benefits due plaintiff.
2. The parties’ instant motions for summary judgment revolve around plaintiff’s undisputed assignment of benefits to the hospital. Plaintiff’s motion claims F.S. §627.736(4) requires the wage loss benefits for July 11 and 12, 1995 be paid before the hospital bill. Defendant’s Motion claims that Plaintiff assigned her benefits to the hospital and therefore, cut off her entitlement to wage loss benefits since the benefits were exhausted.
3. As is customary, plaintiff’s no-fault insurance policy with defendant provides benefits that can be used for lost wages and/or medical benefits.
4. By prior payment, plaintiff received wage benefits from defendant through and including July 10, 1995.
5. Plaintiff entered into an assignment with Wellington Regional Medical Center on July 12, 1995, and she was admitted to that facility on July 13, 1995.
6. At the August 25, 1997 hearing, plaintiff stipulated that she was only seeking recovery of lost wages for July 11 and July 12, 1995 — the two days of wages remaining unpaid prior to her admission to Wellington Regional Hospital on July 13, 1995.
7. Plaintiff argues that no-fault benefits are “due and payable as loss accrues,” thus providing her with a vested right to the lost wage benefits. See Section 627.736(4), Florida Statutes.
8. Plaintiff further claims that the hospital billed her health insurance provider. With their payment, there would not be an exhaustion of benefits under PIP.
9. Plaintiff also argued her affidavit created an issue of fact.
10. Defendant counters by noting that no lost wage benefits were past due at the time the assignment was entered into, such benefits being payable “not less than every 2 weeks.” Section 627.736(1)(b), Florida Statutes.
11. Defendant further argues that as of July 12, 1995, plaintiff’s written assignment effectively gave Wellington Regional Medical Center plaintiff’s rights under the policy and Wellington’s claim thereby exhausted the benefits.
12. Defendant additionally argued that Plaintiff’s affidavit cannot change the assignment. She made no reservation in the assignment for lost wage benefits incurred but not paid.
13. Neither party has presented any case law on the interpretations of these two statutes regarding the priority of benefits with multiple claimants, thereby it appears this issue may be one of first impression.
14. Defendant cited State Farm Fire and Casualty Company vs. Ray, 556 So.2d 811 (Fla. 5th DCA 1990). In dicta, Ray does address the issue of priority stating that the assignor has no right to make a claim on the contract once the assignment is complete unless authorized by the assignee and the assignee first giving notice to the creditor has priority citing Boulevard Nat’l Bank of Miami v. Air Metal Ind., Inc., 176 So.2d 94 (Fla. 1965).
15. An insured has the right to apportion their claims against insurers to secure maximum benefits. Holloway v. State Farm Mutual Automobile Insurance Co., 370 So.2d 452 (Fla. 4th Dist. 1979) reaffirmed in Howell-Demarest v. State Farm Mutual Automobile Insurance Co., 673 So.2d 526 (Fla. 4th Dist. 1996). However, where the hospital lien law applies the priority of payments is the hospital lien before lost wages, funeral expenses, etc. Fernandez v. South Carolina Insurance Co., 408 So.2d 753 (Fla. 3rd 1982). See also Public Health Trust of Dade County v. Carroll, 509 So.2d 1232 (Fla. 4th Dist. 1987).
16. Plaintiff claims that Lubowicki v. Oxford Resources Corp., 22 FLW D1777 (4th Dist. July 23, 1997) precludes entry of Summary Judgment because Plaintiff’s affidavit raises issues of fact on her intent. In construing contracts the court determines intent of the parties from the language used. Bal Harbour Shops, Inc. v. Greenleaf & Crosby Co., 724 So.2d 14 (Fla. 3rd Dist. 1973). When language of the agreement does not admit undisclosed mental intention, the agreement stands. Bryant v. State Board of Regents, 596 So.2d 1233 (Fla. 1st Dist. 1992), rev. den. 604 So.2d 486. Summary Judgment is not precluded simply because the action involves intent. See Fleming v. Peoples First Financial Savings & Loan Association, 667 So.2d 273 (Fla. 1st Dist. 1995); DeMesme v. Stephenson, 498 So.2d 673 (Fla. 1st Dist. 1986). Therefore, Lubowicki is not applicable. The Court does find that Plaintiff’s affidavit in opposition to Defendant’s Motion Summary Judgment does not create any material issues of fact.
17. F.S. §627.736(4) provides for the accrual of loss that is due and payable. The term “accrues” is not defined in the statute. However, in its common ordinary meaning and as defined in Black’s Law Dictionary the term is defined to be “vested”, “acquired”. With this meaning the entitlement to wages for July 11 and 12, 1995 would exist on those dates. F.S. §627.736(1)(b) only dictates when the payment of the wage loss benefits occurs and not the entitlement.
18. Therefore at bar, this court finds Plaintiffs full assignment of benefits was effective the date of admission, July 13, 1995. Carroll, supra. Plaintiff’s wage loss claim entitlement occurred on July 11 and 12, 1995 although Plaintiff could have been more explicit and prioritize her wage loss claim, Holloway, supra, she is entitled to wage loss benefits for July 11 and 12, 1995. Since the loss accrued on July 11 and 12, 1995 and Defendant was on notice of the entitlement due to prior payment, Defendant should have prioritized Plaintiff’s wage loss claim before payment of the hospital bill. Boulevard, supra.
Based on the foregoing, it is
ORDERED AND ADJUDGED as follows:
A. Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY’s Motion for Summary Judgment on the issue of assignment is denied.
B. Plaintiff, LORENE A. ECCLESTON’s Motion for Summary Judgment is granted as Plaintiff’s claim for lost wages accrued on July 11 and 12, 1995 before this assignment of benefits occurred.
C. The Court reserves jurisdiction on any pending matter.
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