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Nichols v. State Farm Mutual6/13/2003
ecided, I will provide only brief comment on that decision. First, unlike the majority in Cahuasqui, I discern major differences between PIP cases and other insurance cases where the courts have applied section 768.79. For example, uninsured motorist coverage differs significantly from PIP insurance because " he uninsured motorist statute gives the insured the same cause of action against the insurer that he has against the uninsured/ underinsured third party tortfeasor for damages for bodily injury." State Farm Mut. Auto. Ins. Co. v. Kilbreath, 419 So. 2d 632, 634 (Fla. 1982) (citing Dewberry v. Auto-Owners Ins. Co., 363 So. 2d 1077 (Fla. 1978)). Because PIP insurance is no-fault insurance that differs significantly from other forms of insurance, decisions which apply section 768.79 to those other forms of insurance do not compel application of the statute to PIP cases.
Second, I disagree with the majority in Cahuasqui that the decision in Scottsdale Insurance Co. v. DeSalvo, 748 So. 2d 941 (Fla. 1999), supports its ruling that section 768.79 applies to PIP cases to allow the insurer to recover fees from the insured. In essence, the court simply held that if an offer of settlement is made by the insurer to the insured and the insured does not recover more than the amount of the offer, the insured is limited to an award of fees, under section 627.428, through the date of the offer. I believe that DeSalvo recognizes that insurers have a remedy under section 627.428 that allows them to mitigate the amount of any award of fees to the insured. I certainly do not read DeSalvo to hold that the insurer is entitled to fees in the event the insured does not recover more than the amount of the offer.
Conclusion
I strongly believe that the Legislature never intended that section 768.79 apply to PIP cases because its application would completely thwart the purposes of the No-Fault Act and PIP benefits. I am also convinced that the Legislature never intended a suit to enforce a PIP policy to recover the benefits provided thereunder to be an "action for damages" under section 768.79. Hence, the certified question, as rephrased, should be answered in the negative.
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