6 Fla. L. Weekly Supp. 675a
Insurance — Coordination of benefits between primary personal injury protection insurer and secondary HMO provider, with insured contending PIP benefits should have been used to pay her lost earnings and HMO, as secondary provider, should pay all of her medical expenses — Statutes do not require PIP carriers to coordinate PIP benefits with HMO coverage — Insurer complied with PIP statutes and indisputably sent insured a notice approved by Department of Insurance — Caselaw requiring insurer to apportion benefits between PIP and medical payments coverage of an insured’s automobile policy, so that insured could derive maximum benefits from the policy, not applicable to instant case involving policy which did not contain medical payments coverage — Even if insured had completed an application for lost wages benefits or specifically requested that PIP insurer apportion her benefits between lost wages and medical payments, insurer was obligated by law to utilize PIP funds first for insured’s hospital bills — Trial court erred in granting summary judgment in favor of insured
ALLSTATE INDEMNITY COMPANY, Appellant, v. MIRIAM LEON and PACIFICARE OF FLORIDA, INC., Appellees. 11th Judicial Circuit in and for Miami-Dade County, Appellate Division. Case No. 99-003 AP. Lower Case No. 97-7879 CC (05). Opinion filed August 18, 1999. An Appeal from County Court for Miami-Dade County. Marvin H. Gillman, Judge. Counsel: Richard A. Sherman and Anthony Tolgyesi, for appellant. Jose M. Francisco, John H. Ruiz, and Stephen L. Vinson, for appellees.
(Before DAVID L. TOBIN, GERALD D. HUBBART, and JUDITH L. KREEGER, JJ.)
(PER CURIAM.) Appellant, ALLSTATE INDEMNITY COMPANY (“ALLSTATE”), seeks review of a decision of the trial court denying its Motion for Summary Judgment against MIRIAM LEON (“LEON”) and granting LEON’s opposing Motion for Summary Judgment. ALLSTATE, in the alternative, seeks review of an order of the trial court granting a Motion for Summary Judgment in favor of PACIFICARE OF FLORIDA, INC. (“PACIFICARE”) and denying LEON’s Motion for Summary Judgment as to PACIFICARE.
LEON, the Appellee, was injured in an automobile accident while traveling in a car insured by Appellant ALLSTATE. She was treated at Jackson Memorial Hospital (“Jackson”), and incurred approximately $32,000.00 in medical expenses. ALLSTATE paid $8,000.00, representing the full amount of its insured’s PIP benefits, to Jackson. Appellee PACIFICARE, LEON’s HMO, paid the balance of the Jackson medical expenses pursuant to its contract with LEON as her secondary benefits provider.
Subsequently, LEON sued ALLSTATE and PACIFICARE to recover lost wages. LEON claimed that the insurer and the provider were obligated to maximize her benefits, so that ALLSTATE should have used the $8,000.00 in PIP benefits to pay her lost earnings1 and PACIFICARE, as the secondary provider, should pay all of her medical expenses. The Court finds that this requirement of a coordination of medical and lost wages benefits between a primary PIP insurer and a secondary HMO provider raises a question of first impression in Florida.
At issue in this case is the scope of the statutory requirement that an insurer coordinate benefits. LEON claimed that pursuant to §627.7401, Fla. Stat. (1993), ALLSTATE had a fiduciary duty to ensure that she knew she had a right to apportion and maximize her PIP benefits between medical payments and lost wages. LEON further asserted that ALLSTATE and PACIFICARE were required to coordinate her benefits pursuant to §627.4235, Fla. Stat. (1993). Section 627.7401(1), Fla. Stat. (1993) provides that:
(1) The department, by rule, shall adopt a form for the notification of insureds of their right to receive personal injury protection benefits under the Florida Motor Vehicle No-Fault Law. Such notice shall include a description of the benefits provided by personal injury protection, including, but not limited to, the specific types of services for which medical benefits are paid, disability benefits, death benefits, significant exclusions from and limitations on personal injury protection benefits, when payments are due, how benefits are coordinated with other insurance benefits that the insured may have, penalties and interest that may be imposed on insurers for failure to make timely payments of benefits, and rights of parties regarding disputes as to benefits. (emphasis added)
Pursuant to § 627.7401(1), Fla. Stat., the written content of the required statutory notice is left to the Department of Insurance. It is undisputed that ALLSTATE sent LEON a notice form adopted and approved by the Department of Insurance and that LEON received these documents. Further, while legislative intent controls the construction of Florida statutes, that intent is primarily determined from the language of the statute. See St. Petersburg Bank & Trust Co. v. Hamm, 414 So. 2d 1071 (Fla. 1982); see also Opperman v. Nationwide Mutual Fire Insurance Company, 515 So. 2d 263 (Fla. 5th DCA 1987). Neither the language of §627.4235, Fla. Stat. (1993)2 nor the language of § 627.7401, Fla. Stat. (1993) requires PIP carriers to coordinate PIP benefits with HMO coverage.
Additionally, the cases cited by LEON are distinguishable from the case at bar and merely stand for the proposition that an insured has the right to apportion claims against the automobile carrier to maximize benefits under that policy; such that medical bills should be paid from Med Pay, if available, leaving PIP coverage available to pay for lost wages. For example, in Bennett v. State Farm Mutual Automobile Insurance Co., 580 So. 2d 217 (Fla. 2d DCA 1991), the insured submitted claims to State Farm and requested that the insurer make payments of medical bills and lost wages from her PIP and medical payments coverage. State Farm utilized PIP benefits to pay medical bills, exhausting the PIP benefit before the medical payments coverage and leaving no PIP funds to pay Bennett’s lost wages. The court found that an insurer was obligated to apportion benefits between the PIP and medical payments coverage of its insured’s automobile policy, so that the insured could derive the maximum benefits from the policy. See also Holloway v. State Farm Mutual Automobile Insurance Co., 370 So. 2d 452 (Fla. 4th DCA 1979) (insureds had right to apportion their claims against automobile insurer to secure maximum benefits available between PIP and medical payments coverage provisions). The ALLSTATE policy covering LEON did not contain medical payments coverage, accordingly the cases cited by LEON are inapplicable.3
Finally, “under Chapter 25C, a hospital lien takes priority over benefits covering funeral expenses, lost wages, and lost earning capacity which would be available to appellant under appellee’s PIP coverage. s 627.736, Fla. Stat. (Supp.1980).” Fernandez v. South Carolina Ins. Co., 408 So. 2d 753, 754 (Fla. 3d DCA 1982); Public Health Trust of Dade County v. O’Neal, 348 So. 2d 377 (Fla. 3d DCA 1977); Dade County v. Pavon, 266 So. 2d 94 (Fla. 3d DCA 1972).4 Even if LEON had completed an application for lost wages benefits, or specifically requested that ALLSTATE apportion her benefits between lost wages and medical payments, Allstate was obligated by law to utilize the PIP funds first for the Jackson Memorial Hospital bills.
LEON urges that this Court create a new rule, expanding the obligation of insurers to coordinate similar benefits between providers to include an obligation to apportion PIP benefits according to different formulas, depending on whether or not a secondary provider exists. The Court finds that not only is such a rule well beyond the scope of existing law, its creation is more appropriately within the ambit of the legislature than of the courts.5
ALLSTATE complied with the PIP statutes and undisputedly sent LEON a notice form approved by the Department of Insurance. LEON undisputedly received the statutory documents and ALLSTATE paid the medical expenses which took priority pursuant to the statutes. Accordingly, we find that the trial court erred as a matter of law in granting summary judgment in favor of LEON. See Moore v. Morris, 475 So. 2d 666 (Fla. 1985); see also Athans v. Soble, 553 So. 2d 1361 (Fla. 2d DCA 1979); Fla. R. Civ. P. 1.150(c). The trial court’s order of December 9, 1998, granting summary judgment for LEON is REVERSED and the case is REMANDED to the trial court with instructions to enter summary judgment in favor of ALLSTATE. The trial court’s order of December 9, 1998, granting summary judgment in favor of PACIFICARE is AFFIRMED.
As a final matter, the Court REMANDS the issue of attorney’s fees to the trial court for a determination both as to ALLSTATE’s entitlement pursuant to § 768.79, Fla. Stat. (1993) and Fla. R. Civ. P. 1.442 and as to the amount, if any, to be paid by LEON.6 The Motions for Attorney’s fees by LEON and PACIFICARE are both denied.
AFFIRMED in part, REVERSED in part and REMANDED.
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1It is undisputed that LEON did not file a claim for lost wages prior to filing suit.
2Section 627.4235, Fla. Stat. (1993) provides in part that
(1) A group hospital, medical, or surgical expense policy, group health care services plan, or group-type self-insurance plan that provides protection or insurance against hospital, medical or surgical expenses delivered or issued for delivery in this state must contain a provision for coordinating its benefits with any similar benefits provided by any other group hospital, medical, or surgical expense policy, any group health care services plan, or any group-type self-insurance plan that provides protection or insurance against hospital, medical, or surgical expenses for the same loss. (emphasis added).
Section 627.4235, Fla. Stat. (1993) requires coordination of benefits between plans providing similar benefits. While the medical payments coverage derived from ALLSTATE’s PIP protection and PACIFICARE’s contract can be considered similar benefits, PACIFICARE does not offer its subscriber a lost wages benefit. Accordingly, this section does not require ALLSTATE to apportion its PIP coverage between medical bills and lost earnings before coordinating medical coverage with PACIFICARE.
3Further, case law does not support the proposition that PIP benefits must be apportioned between an insurance carrier and an HMO under two different policies.
4According to Chapter 25C, Dade County Code (Code 1959), formerly Chapter 27032, Laws of Florida (1951), “(Every hospital operator) shall be entitled to a lien for all reasonable charges for hospital care, treatment and maintenance of ill or injured persons…”
5Note, the duty to adopt any corresponding changes in the required statutory notice form rests with the Department of Insurance pursuant to § 627.401(1), Fla. Stat. (1997).
6It should be noted that the amount of the offer contained in the Proposal of Settlement dated November 17, 1998 was for the total amount of $150.00 raising a question as to the reasonableness of the offer.
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