Pizzarelli v. Rollins, 96-3628
| Decision Date | 19 November 1997 |
| Docket Number | No. 96-3628,96-3628 |
| Citation | 704 So.2d 630 |
| Parties | 22 Fla. L. Weekly D2632, 23 Fla. L. Weekly D148 Michael PIZZARELLI and Michele Pizzarelli, as parents and natural guardian of Carlene Pizzarelli, a minor, Appellants, v. Jane ROLLINS and Dasha Marie Cates, Appellees. |
| Court | Florida District Court of Appeals |
Julie H. Littky-Rubin and Michael J. Overbeck of Lytal, Reiter, Clark, Sharpe, Roca, Fountain & Williams, West Palm Beach, for appellants.
Garrison M. Dundas of Brennan, Hayskar, Jefferson, Walker & Schwerer, P.A., Fort Pierce, for appellees.
Dock A. Blanchard of Blanchard, Merriam, Adel & Kirkland, P.A., Ocala, for Amicus Curiae-The Academy of Florida Trial Lawyers.
The issue before this Court is whether a jury's award for future medical benefits should be offset by any remaining Personal Injury Protection (PIP) benefits.
At the time of trial in July 1996, appellant (plaintiff below), argued that section 627.7372, Florida Statutes (1991), which has since been repealed, was applicable to the 1992 incident which was the subject of the trial below. Appellee, to the contrary, maintained that section 627.736, Florida Statutes (1991), was controlling. The trial court ruled that the issue of any set-off would be addressed post-trial and gave the jury the standard collateral source jury instructions. A "zero" was typed into the "past medical expense" section of the verdict form before the jury received the verdict form. Consequently, the jury did not award any past medical expenses. The jury did award $5,000 for future medical expenses.
At a subsequent hearing, the trial judge entered an offset of $524.78 which he believed was unused available PIP benefits. Appellant and appellee disagree as to whether any PIP benefits actually remained to be used as a set-off, but resolution of that dispute is unnecessary to resolve the issue before us.
Section 627.7372, Florida Statutes (1991), reads in pertinent part:
Section 627.7372 Collateral sources of indemnity.
(1) In any action for personal injury or wrongful death arising out of the ownership, operation, use, or maintenance of a motor vehicle, the court shall admit into evidence the total amount of all collateral sources paid to the claimant, and the court shall instruct the jury to deduct from its verdict the value of all benefits received by the claimant from any collateral source.
(2) For purposes of this section, "collateral sources" means any payments made to the claimant, or on his behalf.
(Emphasis supplied).
Section 627.736 (3), Florida Statutes (1991), reads in pertinent part:
An injured party who is entitled to bring suit ... shall have no right to recover any damages for which personal injury protection benefits are paid or payable. The plaintiff may prove all of his special damages notwithstanding this limitation, but if special damages are introduced in evidence, the trier of facts, whether judge or jury, shall not award damages for personal injury protection benefits paid or payable. In all cases in which a jury is required to fix damages, the court shall instruct the jury that the plaintiff shall not recover such special damages for personal injury protection benefits paid or payable.
(Emphasis supplied).
This court previously reviewed section 627.7372, Florida Statutes (1991), in White v. Westlund, 624 So.2d 1148 (Fla. 4th DCA 1993). In that case, the court was asked to decide whether section 768.76, Florida Statutes (1987), the general statute governing damages in negligence actions, or section 627.7372, Florida Statutes (1987), the statute specifically directed at tort actions involving motor vehicles, governed collateral source offset in automobile accident cases. There, appellant, who believed section 768.76 controlled, challenged the trial court's refusal to award a set-off for future disability benefits against the jury's verdict. This court concluded that between the two statutes, section 627.7372 was more appropriate for automobile accident cases and that the trial court correctly refused to award the set-off for future benefits. Specifically, we concluded that:
The plain language of section 627.7372 speaks in terms of collateral source benefits already obtained: "the court shall admit into evidence the total amount of all collateral sources paid to the claimant, and the court shall instruct the jury to deduct from its verdict the value of all benefits received by the claimant." (emphasis supplied). Thus, it necessarily follows that this section was not intended to permit a setoff for future collateral sources. In fact, this court has held as much. See Jeep Corp. v. Walker, 528 So.2d 1203, 1206 (Fla. 4th DCA 1988) ().
We went even further to find that even if section 768.76 was applicable, its language that "the court shall reduce the amount of any award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to him from all collateral sources" does not mean "those benefits not yet paid but payable in the future". Id. Rather, we determined that:
[I]n order to have collateral source benefits set off against an award, those benefits must either be already paid ("amounts which have been paid ") or presently earned and currently due and owing ("otherwise available to him"). In fact, the term "available" means "Accessible for use: at hand," connoting a present, rather than a future, application. And, furthermore, the term "collateral source" is defined in subsection (2) as those payments "made" to the claimant; nowhere does that definition include payments that may be made in the future. Hence, it follows that appellant's interpretation of this section as applying to both past and future benefits is strained.
Id. at 1153 (emphasis supplied)(footnote omitted).
In the present case we must review our interpretation of the applicability of section 627.7372 to PIP benefits payable upon future claims in light of the more specific section 627.736.
This issue came directly before the fifth district in Kokotis v. DeMarco, 679 So.2d 296 (Fla. 5th DCA 1996). There the court found that section 627.736 applies. However, in interpreting the statute, the fifth district found that since DeMarco had PIP benefits available to cover medical expenses, then to the extent of such coverage, he could not collect such damages from Kokotis. The court specifically found that "payable" as used in the statute "includes expenses which have not yet accrued but which will result from the covered injury." Id. at 296.
The Kokotis court provides no authority for its broad interpretation of "payable". Without even a dictionary's definition to guide it, the court took an uncharted approach to allow set-offs of future benefits.
We find that the Kokotis court was correct to apply section 627.736(3) to the PIP collateral source issue. It relates more specifically to PIP set-offs. While this court was correct in White, when it held that between sections 768.76 and 627.7372, the latter was more applicable, a...
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