9 Fla. L. Weekly Supp. 809a
Insurance — Personal injury protection — Coverage — Lost wages — No error in awarding insured 60% of lost wages not covered by workers’ compensation payment of 66 2/3% of lost wages, up to the $10,000 policy limit of liability
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, vs. FRANK E. MILLER, JR., Appellee. Circuit Court, 4th Judicial Circuit (Appellate) in and for Duval County. Case No. 02-13-AP, Division FM-C. September 23, 2002. Karen K. Cole, Judge. Appeal of the Final Judgment rendered by the County Court. Counsel: Raymond L. Roebuck and David M. Gagnon, Taylor, Day & Currie, Jacksonville, for Appellant. Kevin J. Loftus, Harrell & Johnson, P.A., Jacksonville, for Appellee.
OPINION
This cause came to be heard upon the Notice of Appeal filed by Defendant/Appellant, State Farm Mutual Automobile Insurance Company, on February 15, 2002. Appellant seeks review of the Final Judgment rendered by the County Court on January 15, 2002 awarding Plaintiff/Appellee $2,974.83 in Personal Injury Protection (PIP) benefits for lost wages. This Court has jurisdiction over the instant Appeal pursuant to Florida Rule of Appellate Procedure 9.030(c)(1).
County Court Judge Harold C. Arnold entered Final Judgment in favor of Appellee in the underlying case, number 2001-02498-CC. Appellee sought payment of lost wages from Appellant pursuant to his PIP benefits after being involved in an automobile accident on November 29, 2000 while performing duties within the scope of his employment. Appellee sustained personal injuries as a result of the accident, and incurred lost wages from his employment with the City of Jacksonville for nineteen weeks. Appellee had PIP insurance coverage issued by Appellant at the time of the accident. Appellee’s average weekly wage, as determined by his employer’s workers’ compensation carrier, was $782.91. The workers’ compensation carrier paid sixty six and two thirds percent (66 2/3%) of the $782.91 weekly wage, totaling $521.96 per week. The total amount of lost wages submitted to the worker’s compensation carrier was $14,875.29, of which it paid 66 2/3%, or $9,917.24. The total amount of lost wages not covered by workers’ compensation was $4,958.05.
Appellee submitted a claim for $4,958.05 in lost wages to Appellant for payment of sixty percent of the difference between his actual lost wages and the sum paid by workers’ compensation, or $2,974.83, pursuant to the required PIP benefits under sections 627.730 through 627.7405, Florida Statutes. Appellant denied Appellee’s claim due to the workers’ compensation carrier’s previous payment of 66 2/3% in lost wages to Appellee. Appellant reasoned that as a matter of law, Appellee was precluded from seeking reimbursement for gross lost wages from his PIP coverage that had been paid at a rate higher than 60% of his lost wages, citing Diaz v. South Carolina Insurance Company, 397 So. 2d 386 (Fla. 3d DCA 1981), Jorglewich v. Lumbermens Mutual Casualty, 522 So. 2d 114 (Fla. 5th DCA 1988), and section 627.736(1)(b), Florida Statutes (2000). The amount in controversy remains $2,974.83, or sixty percent of the lost wages not paid for by the workers’ compensation carrier. The trial court cited section 627.736, Florida Statutes (2000). Comeau v. Safeco Insurance Company, 356 So. 2d 790 (Fla. 1978), and Bankers Insurance Company v. West, No. 98-114-AP (Fla. 4th Cir. Ct. Mar. 26, 1999) as authority for its decision to award Plaintiff/Appellee the $2,974.83 in lost wages.
Appellant argues that Comeau does not apply to this case because the 1975 version of the PIP statute has since been amended, reducing the 100% percent recovery of any loss of gross income and loss of earning capacity to 60%. While this is correct, the reasoning behind the decision and the holding in Comeau is still applicable. In addition, Comeau is still good law. The Florida Supreme Court, in quashing the First District Court of Appeal in Comeau v. Safeco Insurance Company, 342 So. 2d 1085 (Fla. 1st DCA 1977), held that a PIP insurer was required to supplement workers’ compensation benefits until the insurer itself paid the limits of liability under its policy for required PIP benefits. The limit of liability under the Appellee’s policy is $10,000, not sixty percent. Sixty percent is the rate of lost wages to be paid up to $10,000. § 627.736(1), Fla. Stat. (2000). Therefore, this Court finds that the lower court was correct in awarding Appellee sixty percent of his lost wages not covered by workers’ compensation up to $10,000, the limit of liability.
Section 627.736, Florida Statutes (2000) states in part,
(4) BENEFITS; WHEN DUE. — Benefits due from an insurer under ss. 627.730-627.7405 shall be primary, except that benefits received under any workers’ compensation law shall be credited against the benefits provided by subsection (1) and shall be due and payable as loss accrues, upon receipt of reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy issued under ss. 627.730-627.7405.
The legislative intent of section 627.736(4), Florida Statutes is that whenever an automobile accident occurs, the PIP benefits are primary, and that they are to be paid in full whether or not any other coverage exists. See Comeau, 356 So. 2d at 794. The Comeau court states,
If workmen’s compensation benefits are available, personal injury protection benefits are still primary; however, to the extent that payments of workers’ compensation are made, personal injury protection benefits are supplemental until either the injured party has been fully compensated or until the personal injury protection insurer has paid the full $5,000 in such supplemental payments.
Id. The same reasoning applies to this case, except that full compensation is now 60% instead of 100% of lost wages, and the required limit of liability has changed from $5,000 to $10,000. Accordingly, PIP benefits are to be supplemental to Appellee’s workers’ compensation benefits until his PIP insurer has paid the full $10,000 in such supplemental payments. Appellee was neither fully compensated, nor paid the full $10,000 in PIP benefits by Appellant.
Appellee is not attempting to recover for a loss not sustained, nor to recover twice for the same loss as contemplated by Comeau. Appellee was simply attempting to recover for lost wages not compensated for by the workers’ compensation carrier. Even though he was paid 66 2/3% of his lost wages by workers’ compensation, Appellee still suffered lost wages, sixty percent of which should have been paid by Appellant up to $10,000. Section 627.736(4), Florida Statutes is not intended to reduce the limits of liability under the statutory minimum required for PIP benefits. See Comeau, 356 So. 2d at 794.
The Fourth Circuit Opinion in Bankers Insurance Company v. West held that the trial court did not err in finding that the appellee was entitled to PIP benefits for lost wages where he received compensation for lost wages from the workers’ compensation carrier, citing Comeau and Greer v. State Automobile Insurance Company, 530 So. 2d 509 (Fla. 4th DCA 1988). This Court also finds that the trial court did not err in finding that Appellee was entitled to PIP benefits for lost wages where he received compensation for lost wages from the workers’ compensation carrier.
Besides Comeau and Bankers Insurance Company, which this Court regards as authority in this case, other District Courts of Appeal decisions lend insight into the payability of PIP and workers’ compensation benefits to an insured. For instance, Appellee’s no-fault carrier, Appellant, would not be justified in denying PIP benefits to Appellee merely because Appellee may have also been entitled to workers’ compensation. See Kovarnik v. Royal Globe Ins. Co., 363 So. 2d 166, 168 (Fla. 4th DCA 1978) (citing Comeau, 356 So. 2d at 790; Davis v. Travelers Indem. Co., 356 So. 2d 794 (Fla. 1978)). Although a claimant cannot receive both workers’ compensation benefits and PIP benefits in such a manner as to be overcompensated for the same injury, workers’ compensation benefits received by a claimant do not decrease the total amount of PIP coverage available under the policy. Kovarnik, 363 So. 2d at 168.
The purpose of subsection 627.736(4) is to preclude a duplication of recovery. Greer v. State Auto. Ins. Co., 530 So. 2d 509 (Fla. 4th DCA 1988); South Carolina Ins. Co. v. Arnold, 467 So. 2d 324, 325 (Fla. 2d DCA 1985). However, in the instant case there is no duplication to the extent that the actual loss exceeds the workers’ compensation payments. The payment of workers’ compensation benefits does not reduce the potential supplemental coverage available from the PIP insurer. Greer, 530 So. 2d at 509 (citing Comeau, 356 So. 2d at 790; Kovarnik, 363 So. 2d at 166). As stated in Greer, Appellee is entitled to claim coverage to the extent that his loss exceeds the workers’ compensation payments, up to the limits of his PIP policy. Greer, 530 So. 2d at 510. Had Appellee not been covered by workers’ compensation, there would be no question of his right to PIP benefits. Appellee should not be penalized simply because he was hurt on the job. See South Carolina Ins. Co., 467 So. 2d at 326.
The no-fault act is to be liberally construed. Stewart v. Allstate Ins. Co., 618 So. 2d 771(Fla. 5th DCA 1993). Appellee is not seeking double recovery. Rather, Appellee is merely seeking to be compensated for his loss not covered by workers’ compensation. The Florida Supreme Court decision in Comeau outweighs the District Courts of Appeal cases presented by Appellant, Diaz and Jorglewich. Although amendments have been made since Comeau, the reasoning behind the decision is valid and legally sufficient.
Accordingly, it is ORDERED AND ADJUDGED that the Final Judgment entered by the County Court is hereby AFFIRMED.
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