IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN
AND FOR PINELLAS COUNTY, FLORIDA
APPELLATE
DIVISION
ARIES INSURANCE COMPANY,
Appellant,
vs.
Appeal No. 01-7353CI-88B
UCN522001**007353XXCI*P
ANGELO CAPPILLINO,
Appellee.
_________________________________________/
Opinion Filed___________________
Appeal from Final Judgment
Pinellas County Court
Judge Robert J. Morris, Jr.
Scot E. Samis, Esquire
Attorney for Appellant
Attorney for Appellee
ORDER
AND OPINION
THIS CAUSE came before the Court on appeal,
filed by Aries Insurance Company (Aries), from the Final Judgment, entered
September 13, 2001, in favor of Angelo Cappillino (Cappillino). Upon review of the briefs, the record and being
otherwise fully advised, the Court reverses the trial court’s ruling as set
forth below.
The underlying facts are undisputed.
Cappillino was involved in an automobile accident and sought medical
treatment for his injuries. At the
time of the accident Cappillino was covered under an insurance policy issued
by Aries to Cappillino’s wife which provided Personal Injury Protection (PIP)
benefits. Cappillino filed a Complaint
against Aries alleging that Aries had failed to pay for reasonable expenses
incurred by Cappillino. The trial court
granted Final Judgment in favor of Cappillino in the sum of $3,927.70 for
PIP benefits. The trial court also
ordered that Aries could not apply the insurance policy’s $2,000.00 deductible
to the awarded PIP benefits, even though Cappillino was a “named insured”,
as Aries failed to pay or reject Cappillino’s demand
for PIP benefits within thirty days of receipt. (emphasis added).
The only issue raised on appeal is whether Aries’ failure to pay benefits
within thirty days prevents Aries from applying the deductible to a named
insured. Aries does not dispute that
the trial court correctly determined that Cappillino was a named insured under
the terms of his wife’s policy. However,
the Court agrees with Aries that the trial court erred, as a matter of law,
in not applying the policy’s $2,000.00 deductible to the PIP benefits sought
by Cappillino for the sole reason that Aries failed to timely pay the benefits.
As held in United Automobile Insurance Company v. Rodriguez,
808 So.2d 82 (Fla. 2001), a decision that the trial court did not have the
benefit of at the time of entering its Final Judgment, an insurer’s failure
to pay PIP benefits within thirty days after receiving written notice of a
covered loss does not bar the insurer from contesting the insured’s claim.
Rather, the statutory penalties for an insurer’s payment of an overdue
claim are limited to interest and attorney’s fees. See id. at 86. There is no authority for a trial court to eliminate
a required deductible as a penalty for late payment.
The Court rejects Cappillino’s response that while Cappillino may be
an insured for definitional purposes, there is no statutory language authorizing
a dependent insured to bind a non-dependent spouse to a PIP deductible. In support of this argument, Cappillino cites
to Florida Statutes, § 627.739(1), which states that, “[t]he named insured
may elect a deductible or modified coverage or combination thereof to apply
to the named insured alone or to the named insured and dependent relatives
residing in the same household, but may not elect a deductible or modified
coverage to apply to any other person covered under the policy.”
However, as stated above, Cappillino is not a non-dependent spouse,
but rather a “named insured” as defined in the insurance policy, to wit: “the
person or organization named
in the Declarations of the policy and if an individual, shall include the spouse if a resident of the same household.” (emphasis added). Hence, there is no
ambiguity to resolve since it is undisputed that Cappillino was residing with
his wife, the named insured as stated on the Declarations page, at the time
of the accident.
Lastly,
the Court finds that there is no reason to differentiate between “coverage”
and “deductibles” if an insurer contests a claim, as the coverage available
for a given claim must necessarily take into consideration the policy’s deductible. Compare with Pappagallo v. New Hamphsire
Indemnity Co., Inc., 7 Fla. L. Weekly Supp. 805a (Fla. 12th Cir. Ct. 2000).
[1]
Hence, the trial court erred in not applying
the $2,000.00 deductible to Cappillino’s claim as required by the unambiguous
terms of the insurance policy.
Therefore, it is,
ORDERED AND ADJUDGED that the Final Judgment
is reversed and this cause is remanded for action consistent with this Order
and Opinion. The Appellee’s Motion
for Attorney’s Fees is denied.
DONE AND ORDERED in chambers, at St. Petersburg,
Pinellas County, Florida this ______ of July 2004.
________________________
DAVID A. DEMERS
Circuit Judge, Appellate Division
Copies furnished to:
Judge Robert J. Morris, Jr.
Post Office Box 1511
St. Petersburg, FL 33731-1511
Arthur Liebling, Esquire
24761 U.S. 19 North, Suite 620
Clearwater, FL 33763
[1] Although obviously not binding, the Court finds that this circuit court decision is informative given the virtually identical fact pattern to this case.