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Nichols v. State Farm Mutual6/13/2003
a natural and proximate consequence of the wrongful act in order to make the injured person whole. To the contrary, the expressed purpose of the No-Fault Act is to impose "a limitation of the right to claim damages for pain, suffering, mental anguish, and inconvenience," section 627.731, and to replace the right to sue for damages "with the ability to recover uncontested benefits and an exemption from tort liability." Pinnacle Medical, 753 So. 2d at 58 (citation omitted). Moreover, the benefits that an injured insured is entitled to recover in a PIP suit are limited to eighty percent of the medical and sixty percent of the disability expenses. Hence, the statute does not even allow for full recovery of these costs.
Because a PIP suit does not fall within the plain and ordinary meaning of an "action for damages" and because we must assume that the Legislature knew the plain and ordinary meaning of an "action for damages" when it enacted section 768.79, I am convinced that the Legislature never intended a PIP suit to be subject to the provisions of section 768.79.
In my view, the Legislature has always considered the essence of a PIP action to be a suit to enforce the insurance policy by determining the coverage provided thereunder so that the insured may obtain the benefits for which he or she paid a premium. This is evident by the Legislature's pronouncement that the purpose of PIP insurance is to "provide for medical, surgical, funeral, and disability insurance benefits . . . ." ยง 627.731, Fla. Stat. (2001). Other provisions in section 627.736 support this view. Section 627.736(11)(a) provides that the insurer must provide written notice " s a condition precedent to filing any action for an overdue claim for benefits under paragraph (4)(b) . . . ." Section 627.736(4) provides that " enefits due from an insurer . . . shall be due and payable as loss accrues . . ." and section 627.736(4)(b) provides that " ersonal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same." Section 627.736(7) applies to situations where an insurer seeks to withdraw benefits covering a treating physician's care because the treatment, as opposed to the amount of the charge for that treatment, is not reasonable, necessary or related. If the insurer does cease benefits under this section and the insured files suit, the issue then becomes whether the treatment, not the charge, is necessary, reasonable or related. Is this a suit for money damages? In my view, the Legislature does not consider it as such.
Numerous decisions by the Florida courts support this view. In State Farm Fire & Casualty Co. v. Palma, 629 So. 2d 830 (Fla. 1993), for example, the court specifically referred to the relief that may be obtained in a PIP suit when it stated:
When an insured is compelled to sue to enforce an insurance contract because the insurance company has contested a valid claim, the relief sought is both the policy proceeds and attorney's fees pursuant to section 627.428.
Florida courts, including this Court, have consistently held that the purpose of section 627.428 is "to discourage the contesting of valid claims against insurance companies and to reimburse successful insureds for their attorney's fees when they are compelled to defend or sue to enforce their insurance contracts." Lexow, 602 So. 2d at 531.
Palma, 629 So. 2d at 832-33 (emphasis added).
Similarly, in Pinnacle Medical, the supreme court held that under the No-Fault Act, the insureds' right to sue for damages was replaced with the right to r
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