7 Fla. L. Weekly Supp. 424b
Insurance — Personal injury protection — Release
MIRTILIA RIVERA, Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA198-65. March 2, 2000. Appeal from the County Court for Orange County, Janis Mary Halker, Judge. Counsel: Carlos R. Diez-Arguelles of Martinez, Manglardi, & Diez-Arguelles, P.A., for Appellant. Thomas F. Neal and Daniel J. O’Malley of Drage, de Beaubien, Knight, Simmons, Romano & Neal, P.A., for Appellee.
(Before RODRIGUEZ, STROKER, and WHITEHEAD, JJ.)
FINAL ORDER AFFIRMING TRIAL COURT
(PER CURIAM.) Affirmed. (STROKER and WHITEHEAD, JJ., concur.)
________
(RODRIGUEZ, J., dissents with opinion.) I respectfully dissent.
In February 1997, Mirtilia Rivera filed the instant action against State Farm Fire and Casualty Company (“State Farm”) alleging that the insurer failed to pay personal injury protection (“PIP”) benefits to which she was entitled under an insurance policy she had with State Farm. Rivera alleged she had been injured in a motor vehicle accident in Orange County on June 1, 1994. State Farm answered the complaint and alleged several affirmative defenses, including one stating that it had been afforded a full and complete general release by the plaintiff for the claim that was the subject of this suit.
In June 1997, State Farm filed a motion for summary judgment based on the alleged previous release and attached the release at issue to the motion. That release states, in part:
This instrument is executed this 12 day of July, 1995, by MIRTILIA RIVERA, herein called “Releasor”.
NOW, THEREFORE, in consideration of ONE THOUSAND FIFTY AND 50/100 DOLLARS ($1,050.50), receipt of which is hereby acknowledged, MIRTILIA RIVERA, the Releasor, agrees as follows:
1. The Releasor, on behalf of himself, his heirs, executors, administrators, and assigns, and all others who may claim by, through, or under her, hereby fully releases and discharges STATE FARM FIRE & CASUALTY COMPANY from all rights, debts, liabilities, charges, claims, and actions which MIRTILIA RIVERA and her above-mentioned successors have against STATE FARM FIRE & CASUALTY COMPANY, or any other affiliate of State Farm Insurance Companies, for non-payment of personal injury protection benefits through June 14, 1995, arising out of the automobile accident which occurred on or about June 1, 1994, in Orange County, Florida, in which MIRTILIA RIVERA was allegedly injured. This release expressly does not waive or relinquish MIRTILIA RIVERA’S right to future personal injury protection benefits with STATE FARM FIRE & CASUALTY COMPANY, or any other affiliate of State Farm Insurance Companies.*
2. This release is intended by the parties to release any and all claims up to and including June 14, 1995, for breach of contract of Releasor or his person, which MIRTILIA RIVERA has against STATE FARM FIRE & CASUALTY COMPANY. MIRTILIA RIVERA understands and acknowledges the significance and consequence of such specific intention to release all present claims for unpaid personal injury protection benefits, and hereby assumes full responsibility for any damages, or losses that he may have incurred from the above-mentioned policy or policies of insurance.*
…
*This release does not waive any claims for attorney’s fees or costs arising out of Rivera v. State Farm (CO95-194).
State Farm asserted that the bill at issue in the case below was a medical bill for a MRI performed on August 8, 1994, and that the release of “any and all claims up to and including June 14, 1995,” would include that bill. The trial court ruled in favor of State Farm, granting its motion for summary judgment. This appeal followed.
In reviewing a trial court order granting a motion for summary judgment, this Court must view the evidence in a light most favorable to the appellant and must draw all competing inferences in favor of the appellant. See Hoch v. Rissman, Weisberg, Barrett, 742 So. 2d 451, 456 (Fla. 5th DCA 1999). If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined. Id. Rivera argues on appeal that the release at issue in this case is capable of two contradictory interpretations so that an issue of material fact existed as to the parties’ intent. I agree.
When a release is clear and unambiguous a court cannot entertain evidence contrary to its plain meaning and summary judgment may properly be granted. See Sheen v. Lyon, 485 So. 2d 422 (Fla.1986). However, it is equally clear that where the terms of a release are disputed and reasonably susceptible to more than one construction, an issue of fact is presented as to the parties’ intentions which cannot properly be resolved by summary judgment. See Luciano v. Franchino, 730 So. 2d 410 (Fla. 2d DCA 1999); Floyd v. Homes Beautiful Constr. Co., 710 So. 2d 177 (Fla. 1st DCA 1998); Abernethy v. National Union Fire Ins. Co., 717 So. 2d 196 (Fla. 5th DCA 1998); Gonzalez v. Travelers Indem. Co. of Rhode Island, 408 So. 2d 741 (Fla. 3d DCA 1982).
While the document at issue in this case notes a general release of “claims for unpaid personal injury protection benefits,” other statements within the release only reference claims for “non-payment of personal injury protection benefits” and claims for “breach of contract.” In State Farm Mut. Auto. Ins. Co. v. Lee, 678 So. 2d 818, 821 (Fla. 1996), the Florida Supreme Court stated
[s]ection 627.736(4)(b), Florida Statutes (1995), provides in part: “Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.” Pursuant to this statute, State Farm had no contractual obligation to pay PIP benefits until thirty days after receipt of respondents’ PIP claim. However, once the thirty days elapsed and no benefits were paid on the claim, assuming they were properly due, State Farm had effectively breached their contract with respondents. At the time of the accident, and before any PIP benefits were due, respondents could not have brought an action against State Farm for PIP benefits and thus the statute of limitations did not begin to run. It was only upon State Farm’s denial of the actual PIP claim that the limitations period began running.
The deposition testimony of State Farm’s claim specialist, Denise Freeman, indicates that State Farm was not aware of the bill at issue in this case until October 1996. Thus, under Lee, it appears there was no “non-payment” of the claim or “breach of contract” regarding the claim until 30 days after State Farm received the instant MRI claim in October of 1996. Therefore, I believe that the July 1995 release is sufficiently ambiguous with regard to the claims the parties intended to release so to preclude summary judgment on this ground. I would reverse and remand the case for further proceedings.
* * *
