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Malu v. Security National Insurance Co.3/10/2005
We have for review the consolidated cases of Malu v. Security National Insurance Co., 848 So. 2d 373 (Fla. 4th DCA 2003), and Padilla v. Liberty Mutual Insurance Co., 870 So. 2d 827 (Fla. 3d DCA 2003), in which the Fourth and Third District Courts of Appeal certified conflict with the decision of the Fifth District Court of Appeal in Hunter v. Allstate Insurance Co., 498 So. 2d 514 (Fla. 5th DCA 1986). We have jurisdiction. See Art. V, ยง 3(b)(4).
The facts in each of the cases before us are substantially similar.
MALU
Petitioner Sandra Malu was insured under a private passenger automobile insurance policy issued by respondent Security National Insurance Company (Security National). After sustaining injuries in a motor vehicle accident, Malu made a claim for personal injury protection (PIP) benefits under her insurance policy. Among the benefits she sought was payment for the use of her personal automobile for travel to and from her medical providers. According to its usual and customary practice, Security National paid Malu a standard, predetermined amount of 34.5 cents per mile as reimbursement for the medical travel expenses.
Malu filed a class action complaint in the Circuit Court for Broward County, alleging that she was entitled to be paid more than 34.5 cents per mile for medical transportation costs. Malu sought declaratory relief and damages for breach of contract based upon a violation of the PIP statute of the Florida Motor Vehicle No-Fault Law, section 627.736, Florida Statutes (2001). Malu alleged that the mileage rate paid by her insurer for medical transportation costs was not reasonable and asserted that a reasonable mileage rate was in the range of 50 cents per mile.
The trial court dismissed the case with prejudice, finding as a matter of law that the 34.5 cents per mile paid by Security National to its insureds was reasonable. On appeal to the Fourth District, Malu argued that the trial court erred in concluding that the amount was reasonable as a matter of law, asserting that such a finding was not susceptible to determination as a matter of law but, rather, could only be made by the trier of fact.
The Fourth District agreed and found that the trial court had erred when it considered facts from outside of the complaint in its dismissal of the case. Despite this error, the Fourth District held that it was obligated to affirm the trial court if an alternative theory supported affirmance. Consequently, the district court affirmed the trial court's dismissal on the alternate basis that the medical transportation expenses were not compensable under the PIP statute. The court stated:
Our reasoning is based on the fact that the legislature specifically included transportation by ambulance, but did not mention any other type of transportation in the PIP statute. The mention of one type of transportation implies the exclusion of other types. Moonlit Waters Apartments, Inc. v. Cauley, 666 So. 2d 898, 900 (Fla. 1996) ("Under the principle of statutory construction, expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another.").
Malu, 848 So. 2d at 374.
The Fourth District also reasoned that when the Legislature has intended to provide coverage for automobile transportation to obtain medical treatment in a statutory scheme, it has specifically provided for payment of such expenses in the statutory language. As examples, the Malu panel cited to the statutory scheme that provided benefits for birth-related neurological injuries, section 766.31(1)(a), Florida Statutes (2002), and a workers' compensation statute that was repealed in 1993, section 440.13(6
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