Kwechin v. Industrial Fire & Cas. Co., 80-572

• Decision Date: 08 December 1981
• Docket Number: No. 80-572,80-572
• Citation: 409 So.2d 28
• Court: Florida District Court of Appeals
• Parties: Deborah KWECHIN, Appellant, v. INDUSTRIAL FIRE & CASUALTY CO., a foreign corporation, Appellee.

Page 28

409 So.2d 28

Deborah KWECHIN, Appellant, v. INDUSTRIAL FIRE & CASUALTY CO., a foreign corporation, Appellee.

No. 80-572.

District Court of Appeal of Florida, Third District.

Dec. 8, 1981.

Opinion Amended on Motion for Rehearing and Suggestion for Certification;

Certification Granted Feb. 15, 1982.

Horton, Perse & Ginsberg, Michael Nuzzo, Miami, for appellant.

Schwartz, Klein & Steinhardt and Jay S. Weiss, Miami, for appellee.

Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

We hold that an insurer which knows that a prospective insured does not have other collateral insurance or benefits, and despite such knowledge sells to the prospective insured a personal injury protection policy containing deductibles, is liable to the insured under the policy as if the policy contained no deductible.

In October 1978, Deborah Kwechin contacted Industrial's agent for the purpose of obtaining personal injury protection (P.I.P.) coverage. It is undisputed that prior to writing a P.I.P. policy containing a $4,000 deductible, the agent was informed by Kwechin that she did not have other insurance coverage, and, in fact, she did not.

About ten days after the policy was written, Kwechin was injured in an accident. She filed a claim with Industrial, which promptly refused to pay any of her medical expenses below $4,000, the deductible amount. Kwechin sued, asking the trial court to declare that the deductible was offered by Industrial in violation of Section 627.739, Florida Statutes (1977), and was thus ineffective. Both parties moved for summary judgment, and from a summary judgment entered in favor of Industrial, Kwechin appeals.

Section 627.739, Florida Statutes (1977), provides, in pertinent part:

"In order to prevent duplication with other private or governmental insurance or benefits for senior citizens and others with access to such insurance or benefits, each insurer providing the coverage and benefits described in s. 627.736(1) shall offer to the named insureds modified forms of personal injury protection as described in this section. Such election may be made by the named insured to apply to the named insured alone, or to the named insured and dependent relatives residing in the same household. Any person electing such modified coverage, or subject to such modified coverage as a result of the named insured's election, shall have no right to claim or to recover any amount so deducted from any owner, registrant, operator, or occupant of a vehicle or any person or organization legally responsible for any such person's acts or omissions who is made exempt from tort liability by ss. 627.730-627.741. Premium reductions for each modification or combination of modifications shall be adequate to recognize the reduction in hazard and shall be subject to the approval of the Department of Insurance.

"(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, and $4,000, said amount to be deducted from the benefits otherwise due such 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)." (emphasis supplied).

In defense of the trial court's judgment, Industrial claims that its only statutory duty is to affirmatively offer the deductibles, and that, contrary to Kwechin's contention, Industrial is not prevented from selling a policy with deductibles when it is informed no such collateral coverage exists. ^{1 1} Industrial says that the statute, read in its entirety, supports this interpretation in that (1) the language "and others with access to such insurance" necessarily contemplates insureds who merely have access to, but not actually in force, additional coverage; (2) the statute prevents insureds from suing third persons to recover the deductible, an implicit recognition by the Legislature of the existence of people not collaterally covered who would select a deductible and sue to recover non-covered losses; and (3) if it had been the Legislature's intent to preclude persons without collateral coverage from selecting a deductible, that intent could have been better expressed by a clause announcing that no P.I.P. deductible may be offered to persons not having collateral coverage. In essence, then, Industrial argues that the sole purpose of the statute is to prevent duplication of coverage, that is, to assure that persons with collateral coverage will not unknowingly be burdened with unnecessary insurance and higher premiums.

We cannot construe the statute as Industrial urges. In our view, the overriding purpose...