Fortune Ins. Co. v. Sims
| Citation | 10 Fla. L. Weekly 567,464 So.2d 251 |
| Decision Date | 06 March 1985 |
| Docket Number | No. 84-137,84-137 |
| Parties | 10 Fla. L. Weekly 567 FORTUNE INSURANCE COMPANY, Appellant, v. Theoria SIMS, Appellee. |
| Court | Florida District Court of Appeals |
Terence T. O'Malley of Terence T. O'Malley, P.A., Fort Lauderdale, for appellant.
Bernard A. Conko of Gibson & Adams, West Palm Beach, for appellee.
Appealed is a summary final judgment involving the appropriate application of section 627.739(1), Florida Statutes (1981), which permits an insurance company, under limited circumstances, to issue Personal Injury Protection (PIP) insurance coverage with certain deductibles.
On December 15, 1981, appellant issued an automobile insurance policy for personal injury protection to appellee. The policy provided $10,000 of liability insurance with a deductible applicable to the PIP coverage of $8,000. It was issued through Broadway Insurance, Inc., which was an independent insurance broker, not an agent of Fortune. At the time appellee obtained the policy, she was employed as a housekeeper at a condominium and had "health insurance" through her employer.
On June 23, 1982, appellee was involved in an automobile accident, as a result of which she incurred medical expenses and loss of earnings. She subsequently filed a complaint for declaratory and other relief against appellant, alleging that the $8,000 deductible in the policy should not apply because appellant failed to comply with section 627.739(1), Florida Statutes. Both parties moved for summary judgment. Appellee's motion was granted, the trial court holding the $8,000 deductible unenforceable.
The applicable version of section 627.739(1), Florida Statutes (), provided in pertinent part:
(1) Insurers shall offer to each applicant and to each policyholder, upon the renewal of an existing policy, deductibles, in amounts of $250, $500, $1,000, $2,000, $3,000, $4,000, $6,000, and $8,000, said amount to be deducted from the benefits otherwise due each person subject to the deduction, and shall explain to each applicant or policyholder that if they have coverage under private or governmental disability plans, they may avail themselves of deductibles or other modifications as provided in subsections (1), (2), and (3).
Appellee postulates that counsel for the parties stipulated to certain facts on the record including a stipulation that appellee "did not have disability or wage loss protection at the time the PIP policy was purchased." Appellant strenuously rejects the suggestion that the stipulation included the lack of "disability" loss protection. Review of the record supports appellant's position. This observation is made only for clarification, the court recognizing that the issue primarily in contention here is whether inquiry was made and if so, its adequacy, rather than the existence vel non of disability coverage.
The PIP coverage in appellee's policy had a deductible of $8,000. The initial concern is whether a genuine issue of material fact appears from the record as to whether the inquiry mandated by the statute was undertaken by the insurance broker. The insured testified that no such inquiry was ever made. An employee of the independent insurance broker could not recall specifically advising this insured in connection with the possibility of deductibles. She did, however, testify that making such inquiry was standard office procedure and that this procedure "never" varied.
In Lumbermens Mutual Casualty Company v. Alvarez, 443 So.2d 279 (Fla. 3d DCA 1983), summary judgment for the insured was reversed where the president of the insurance agency which took the application testified at deposition that the agency's standard practice was to ask all applicants if they had other insurance coverage, inform them that other coverage was necessary in order to elect a deductible, and inform them that the agency would not write a deductible policy if they stated they had no other coverage. The court quoted section 90.406, Florida Statutes (1979), which provides:
Evidence of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is admissible to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice.
The court further noted that
While concededly [the agency president's] testimony as to the routine practice establishes no presumption that it was followed in a particular instance, it is nonetheless sufficient to support an inference by the trier of fact that the practice was followed on the particular occasion in question, notwithstanding that [the insured's] testimony directly contradicts such an inference.
443 So.2d at 281. See also, Bankers Insurance Co. v. Sosa, 448 So.2d 1181 (Fla. 3d DCA 1984). Cf. Industrial Fire & Casualty Ins. Co. v. Kwechin, 447 So.2d 1337 (Fla.1983) ().
Appellant takes the position that this conflict in the testimony creates a "genuine issue as to [a] material fact" precluding entry of summary judgment for appellee under Florida Rule of Civil Procedure 1.510(c). We would agree, unless appellee is correct in asserting that, in any event, an inquiry limited to the question of whether a prospective insured has "medical" insurance does not constitute substantial compliance with the statute, which speaks of "disability insurance." We reject this contention.
Section 627.739(1), Florida Statutes, provides that the insurer "shall explain to each applicant ... that if they have coverage under private or governmental disability plans, they may avail themselves of deductibles ...." The Insurance Code in effect in 1981 defined "disability insurance" as follows:
624.603 "Disability insurance" defined. "Disability insurance," also known as "health insurance," is insurance of human beings against bodily injury, disablement, or death by accident or accidental means, or the expense thereof, or against disablement or expense resulting from sickness, and every insurance appertaining thereto. Disability insurance does not include workers' compensation coverages.
This is a broad definition and would clearly seem to include insurance covering medical expenses. The question remains, however, whether medical insurance is sufficient to constitute coverage under a "disability plan," as required by section 627.739(1), or whether a more comprehensive type of coverage, which would include lost wages, is necessary.
Appellee contends all of the benefits required to be provided by the PIP insurer under section 627.736(1), Florida Statutes, under a "no deductible" policy must be provided by the collateral insurance where the PIP insurer writes a policy with a deductible. These required benefits include...
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