McClellan v. Industrial Fire & Cas. Ins. Co., 84-2541

• Decision Date: 25 September 1985
• Docket Number: No. 84-2541,84-2541
• Citation: 475 So.2d 1015,10 Fla. L. Weekly 2225
• Court: Florida District Court of Appeals
• Parties: 10 Fla. L. Weekly 2225 Charles McCLELLAN, Appellant, v. INDUSTRIAL FIRE & CASUALTY INSURANCE COMPANY, Jerome Abbate and Alan James Beaudoin, Appellees.

Page 1015

475 So.2d 1015

10 Fla. L. Weekly 2225

Charles McCLELLAN, Appellant, v. INDUSTRIAL FIRE & CASUALTY INSURANCE COMPANY, Jerome Abbate and Alan James Beaudoin, Appellees.

No. 84-2541.

District Court of Appeal of Florida Fourth District.

Sept. 25, 1985.

Robert C. Rogers of Lawrence J. Bohannon, P.A., Fort Lauderdale, for appellant.

No appearance on behalf of appellees.

BARKETT, Judge.

This appeal emanates from an automobile negligence case wherein the defendants admitted liability and the jury was asked to determine only the issue of damages. The jury found that the plaintiff failed to reach the threshold of permanent injury. The verdict form submitted by defendants and used by the jury provided that the plaintiff accordingly would not be entitled to any damages.

Charles McClellan, plaintiff below, complains that the court erred in submitting this verdict form to the jury. We agree and reverse the lower court's judgment for the defendants.

Upon a finding that there is no permanent injury, a plaintiff is precluded from any recovery only

to the extent that the benefits described in s. 627.736(1) are payable for such injury, or would be payable but for any exclusion authorized by ss. 627.730-627.7405....

§ 627.737(1), Fla.Stat. (1983). The benefits described in section 627.736(1) are limited to 80% of medical expenses incurred, 60% of lost gross income, and death benefits. § 627.736(1), Fla.Stat. (1983).

McClellan correctly argues that even though he did not suffer a permanent injury, he may still sue the tortfeasor for benefits not payable under section 627.736(1) (i.e., 20% of his medical expenses and 40% of his lost gross income). In fact, the ability to sue for these amounts was one of the bases upon which the supreme court relied in holding Florida's no-fault insurance law constitutional in Chapman v. Dillon, 415 So.2d 12, 18 (Fla.1982):

Under the new provisions the injured party still recovers most of his out-of-pocket expenses from his own insurer and is allowed to bring suit for the remainder. As the remaining amount subject to suit is drastically reduced from what it would have been if there had not been any no-fault coverage, the incentive to settle is greatly increased. The amount of PIP coverage that is provided is sufficient to prevent a party from being forced into dire financial circumstances and accepting unduly small settlements. [Emphasis supplied.]

In Iowa National Mutual Insurance Company v. Worthy, 447 So.2d 998 (Fla. 5th DCA 1984), the fifth district discussed the pertinent sections of our no-fault insurance law. The court stated:

Section 627.737(1), Florida Statutes, undertakes to exempt a tortfeasor from tort liability for damages because of bodily injury caused by a motor vehicle only "to the extent that benefits described in s. 627.736(1) are payable for such injury, or would be payable but for any [authorized] exclusion...." Therefore, under the statutes cited and Lasky and Chapman, without meeting the thresholds in section 627.737(2), Florida Statutes, the tortfeasor and his liability carrier, here State Farm, is liable to the injured party for...