County Civil Court: INSURANCE – PIP benefits – trial court erred in eliminating required deductible as a penalty for the insurer’s late payment – statutory penalties for an insurer’s payment of an overdue claim are limited to interest and attorney’s fees - Final Judgment reversed.  Aries Insurance Company v. Cappillino, No. 01-7353CI-88B (Fla. 6th Cir. App. Ct. July 29, 2004). 









vs.                                                                                        Appeal No. 01-7353CI-88B






Opinion Filed___________________


Appeal from Final Judgment

Pinellas County Court

Judge Robert J. Morris, Jr.


Scot E. Samis, Esquire

Attorney for Appellant


Arthur Liebling, Esquire

Attorney for Appellee





            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.

Scot E. Samis, Esquire

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.