7 Fla. L. Weekly Supp. 805a
Insurance — Personal injury protection — Deductibles — Plaintiff who seeks PIP benefits under policy of insurance issued to his wife, named insured, is subject to deductible applicable to named insured and dependent relatives by definition of named insured in policy of insurance — Section 627.739, which provides that named insured may elect a deductible to apply to named insured alone or to named insured and dependent relatives residing in same household, does not contravene named insured policy provision or operate to exclude plaintiff as named insured because plaintiff is not named by name in policy declaration — It would seem incongruous to treat spouse different than “dependent relatives residing in same household”
FRANK PAPPAGALLO, Plaintiff, vs. NEW HAMPSHIRE INDEMNITY CO., INC., Defendant. County Court, 12th Judicial Circuit in and for Manatee County, Civil Division. Case No. 2000-CC-720. September 2000. Matthew E. McMillan, Judge.
ORDER ON DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT and PLAINTIFF’S MOTION IN LIMINE
THIS CAUSE having come on to be heard on Defendant’s Motion for Partial Summary Judgment and Plaintiff’s Motion in Limine and the Court having considered the Motion and being otherwise duly advised in the premises, finds as follows:
FACTS
The facts of this case are quite simple. The Plaintiff was involved in an automobile accident on December 24, 1999. The Plaintiff is the husband of, and resided with, Melody Pappagallo, the named insured under a policy of insurance issued by the Defendant.1 At the time of the accident, the Plaintiff was not the owner of an operable vehicle for which security was required. As a result of this accident, Plaintiff sought and received medical treatment and seeks PIP benefits under the policy of insurance issued by New Hampshire Indemnity. According to the policy declarations, the policy of insurance included a $2000.00 deductible applicable to the “named insured” and dependent relatives. Plaintiff asserts, in paragraph 7 of his Motion in Limine, that he is a “dependent relative”.
LEGAL ANALYSIS
The Plaintiff asserts in his complaint, inter alia, that the deductible is not applicable to him by the provisions of the statute. The Defendant asserts that the deductible is applicable as the Plaintiff is, by the terms of the contract, a “named insured”.
New Hampshire Indemnity’s policy of insurance defines “Named insured” to mean “a.) The person named in the Declarations; or b.) That person’s spouse, if a resident of the same household.” Clearly, by the definition in the policy, the Plaintiff is a named insured and is subject to the deductible. However, the Plaintiff argues that Florida Statute § 627.739 contravenes the policy provision and controls. The statute states, in pertinent part:
627.739 Personal injury protection; optional limitations; deductibles. —
(1) The named insured may elect a deductible or modified coverage or combination thereof to apply to the named insured alone or to the named insured and dependent relatives residing in the same household, but may not elect a deductible or modified coverage to apply to any other person covered under the policy. (emphasis added)
The Plaintiff argues that this section allows the named insured to elect a deductible that would apply to the named insured alone and dependent relatives residing in the same household. The Plaintiff argues that the modifier “alone” means that the person named in the declaration can elect a deductible only for himself/herself (and dependent relatives). Because the Plaintiff in this action is not actually named by name in the declaration, the deductible elected by his wife would not apply to him.
The Plaintiff asserts that the Plaintiff is exempt from the deductible because the policy provision defining the “named insured” unlawfully expands the scope of those person’s who should be considered . as “named insureds” in contravention of § 627.739(1). Accordingly, the Plaintiff argues, the Court must rewrite the contract2 in conformity with the statutory provisions found in § 627.739(1) and the definitional portion of the PIP statute, § 627.732, which defines “named insured” as “a person, usually the owner of a vehicle, identified in a policy by name as the insured under the policy.”
The Defendant cites several cases for the proposition that a spouse may be included as a named insured without having to be named individually in the declaration. In Sturgis v. Fortune Insurance Company, 475 So.2d 1272 (Fla. 2nd DCA 1985) the Appellant was injured in an accident while driving an automobile owned by his wife and insured by Fortune. The Appellant filed a claim for benefits under the wife’s policy, contending that he was a “named insured”.3
The policy issued by Fortune contained the following definition of “named insured”: “the person or organization named in the declarations of the policy and if an individual shall include the spouse if a resident of a household.” The Court rejected, amongst other arguments, Fortune’s assertion that the statutory definition of “named insured” operated to exclude the appellant. The Court held that “[u]se of the word `usually’ means that individuals other than the owner may be included as `named insureds’ for insurance coverage.” Fortune at 1274. The court went on to hold that an insurance company can include a policyholder’s spouse categorically instead of naming the spouse individually. See also, Fidelity and Casualty Company of New York v. Fonseca, 358 So.2d 569 (Fla. 3rd DCA 1978).
In Hannah v. Newkirk, 675 So.2d 112, 114 (Fla. 1996), the Supreme Court held:
“The purpose of the PIP deductible is to prevent car owners with other insurance coverage from paying premiums for duplicative coverage. Chapman v. Dillon, 415 So.2d 12, 18 (Fla. 1982). In electing a PIP deductible, an insured pays a lower premium for PIP coverage, and yet will still be substantially compensated by PIP for any damages sustained. Verdecia, 543 So.2d at 322. (Verdecia v. American Risk Assurance Co., 543 So.2d 321 (Fla. 3d DCA)) Electing a PIP deductible is optional and therefore it is presumed that the purchasers of PIP do so with knowledge of the consequences, including possibly incomplete coverage. Chapman, 415 So.2d at 18.”
The “named insured” provision of New Hampshire Indemnity’s policy seems to indicate an appreciation for the special relationship that exists amongst dependent relatives and spouses of persons securing a policy of insurance. The decision to elect a deductible, and the amount of said deductible, is presumed to be an informed decision by the individual purchasing the policy with knowledge of the related consequences of that decision. Florida Statute § 627.739 does not allow that individual to choose the deductible amount for those covered persons with which the named insured has no relationship. It would seem incongruous to treat a spouse different than “dependent relatives residing in the same household”.
The Plaintiff asserts that the Defendant’s cases pertain to coverage and not to deductibles, which are specifically controlled by 627.739(1). The Court rejects this argument, as the Court can find no practical reason to differentiate between coverage and deductibles.
ORDERED AND ADJUDGED that the Defendant’s Motion for Partial Summary Judgment is granted. Likewise, Plaintiff’s Motion in Limine is denied.
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1This finding of fact is assumed for purposes of this order. At hearing, Defendant’s counsel informed the Court that she had a conversation with Plaintiff’s counsel and that the Plaintiff was not disputing this fact and would stipulate the same. However, at the hearing, another member of Plaintiff’s law argued the motion and was not willing to commit to stipulating to this fact without consulting with the lead attorney on the case. This opinion strictly addresses the issues framed by these facts. If the facts are different, the Court’s ruling might be subject to change.
2Florida Statute § 627.418. Validity of noncomplying contracts. —
(1) Any insurance policy, rider, or endorsement otherwise valid which contains any condition or provision not in compliance with the requirements of this code shall not be thereby rendered invalid, except as provided in s. 627.415, but shall be construed and applied in accordance with such conditions and provisions as would have applied had such policy, rider, or endorsement been in full compliance with this code.
3The parties stipulated that the Appellant was the spouse of the insured and resided in the same household.
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