7 Fla. L. Weekly Supp. 212b
Insurance — Personal injury protection — Insurer not entitled to summary judgment on insured’s claim for loss of future earning capacity over his remaining working life, under his PIP policy — Contractual language limiting loss of earning capacity benefit to amounts which are realized “during the time that the insured is not able to work” either does not apply, or is ambiguous — In cases of insurance contract ambiguity, court construes in favor of coverage
FELIPE PADILLA, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 99-01996 CC 25 (2). September 23, 1999. Edward Newman, Judge.
ORDER FOR PARTIAL GRANT OF SUMMARY JUDGMENT
THIS CAUSE comes upon Defendant’s MOTION FOR SUMMARY JUDGMENT, and after consideration of filed papers or evidence, and hearing argument, and the Court being advised in the premises, it is
ORDERED and ADJUDGED as follows:
1. The Defendant claims as part of its Motion for Summary Judgment that the Plaintiff’s medical providers were paid the full measure of Personal Injury Protection (“PIP”) indemnification for medical expense before the present action was initiated. The Plaintiff has not shown evidence to the contrary. Therefore, Defendant’s Motion for Summary Judgment is partially GRANTED, in this regard, only.
2. However, the Plaintiff also claims entitlement to a present value reduction for loss of future earning capacity1 over the Plaintiff’s remaining working life2, under his Personal Injury Protection (“PIP”) policy.
3. The Defendant concedes that loss of earning capacity is compensable provided that the claimed amount of income loss is reasonably quantified. The Defendant argues that the PIP scheme is one for indemnification; and that loss of future earning capacity, as yet unrealized, is not compensable under PIP law. In support of this position, Defendant points to statutory language3, and to language in the subject policy, as follows:
2. Income Loss. 60% of loss of income and earning capacity due to the insured’s inability to work caused by his or her bodily injury during the time the insured is not able to work. [Bold emphasis in the original. Underline emphasis by the Court. Ref. Section II, page 9 of the policy.]
3. On facts similar to those at bar, the Third District, in Vega v. Travelers Indemnity Company, 520 So.2d 73 (3rd DCA 1988), found that a Final Judgment based on a verdict of no liability was against the manifest weight of the evidence. The opinion instructs that the Vega claimants were “also due some compensation for loss of future earning capacity.” Id. at 75. The implication is that the amount of compensation for a permanently injured claimant seeking benefits under a PIP policy for loss of future earning capacity is a question of fact which precludes a grant of Summary Judgment.
4. Assuming arguendo that an insurer may lawfully draft language in the PIP contract to limit the “loss of earning capacity” benefit to amounts which are presently realized, the subject contractual language misses the point. The claim is for a loss of earning capacity. Such a loss contemplates that the claimant may be working. Therefore, the words, “during the time that the insured is not able to work” either do not apply, or the words are ambiguous. The Court construes in favor of coverage in cases of insurance contract ambiguity.
5. For the above reasons, Defendant’s Motion for Summary Judgment on the loss of earning capacity claim is DENIED. The issue is one for the trier of fact.
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1In pertinent part, Fla. Stat. § 627.736(1) provides:
(b) Disability benefits — Sixty percent of any loss of gross income and loss of earning capacity per individual from inability to work proximately caused by the injury sustained by the injured person, [. . . .] [Emphasis added]
2In Opposition to Defendant’s Motion, the Plaintiff files an Affidavit from vocational rehabilitation specialist, Dr. Robert Lessne, Ph.D. Dr. Lessne premises that the Plaintiff suffered a permanent disability in a covered automobile accident for his expert opinion that as a result, “[. . . the Plaintiff] would have a loss of earning capacity from the date of the accident for his remaining work life expectancy which when reduced to present value, would far exceed the $10,000.00 PIP coverage. This is without regard to how many days he has actually missed from work so far, if any.” [Emphasis in the original.] [From paragraph 4 of the Affidavit.]
3Reference the words “loss sustained” in subsection (1) — indicating a past loss; and, “All disability benefits payable under this provision shall be paid not less than every 2 weeks”, in subsection (1)(b) — indicating liability accrues; and, “[Benefits] shall be due and payable as loss accrues, upon receipt of reasonable proof of such loss [. . . .]”, in subsection (4) — indicating that a claimant must show actual loss before making a claim.
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