MYRTLE LOU ANN DUBRIAN, APPELLANT,
v.
ALLSTATE INDEMNITY COMPANY, A FOREIGN CORPORATION, APPELLEE

Fla. 2d DCA | 1989-02-17
No. 88-946
PARKER and ALTENBERND, JJ., concur.
538 So. 2d 151 Florida District Court of Appeal, Second District (1989) Caution
Cited by 10 cases

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Synopsis

Myrtle Lou Ann Dubrian appeals a summary judgment granting Allstate Indemnity Company a subrogation lien against settlement proceeds. The court holds that Florida's No-Fault Law statute explicitly prohibits insurers from placing liens on tort recovery proceeds, and the statutory language is unambiguous and unqualified.


Holding

The court holds that section 627.736(3) of the Florida Statutes unambiguously prohibits insurers from asserting liens on any recovery in tort, whether by judgment or settlement. The statutory prohibition is unqualified and applies regardless of whether the injured party retained a right to recover items of damages for which PIP benefits were payable under the law of another jurisdiction.


Headnotes

[1] A statute prohibiting an insurer from having a lien on any recovery in tort for personal injury protection benefits is unqualified and applies regardless of whether the i…

[2] The prohibition against an insurer's subrogation lien on tort recovery for personal injury protection benefits is not implicitly limited to situations where the injured p…

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Key Quotes

“No insurer shall have a lien on any recovery in tort by judgment, settlement, or otherwise for personal injury protection benefits, whether suit has been filed or settlement has been reached without suit.”

The statutory provision that forms the basis of the court's holding that the subrogation lien is prohibited.

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Facts & Procedural History

Plaintiff, a Florida resident vacationing in Tennessee, was injured in an automobile accident caused by a Tennessee resident. Defendant Allstate Indem…

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Opinion of the Court
LEHAN, Acting Chief Judge.

LEHAN, Acting Chief Judge.

In this suit for declaratory judgment and breach of contract, plaintiff, Myrtle Lou Ann Dubrian, appeals from a summary judgment in favor of defendant, Allstate Indemnity Company. Defendant, plaintiff’s automobile insurer, had paid plaintiff $3,130 PIP benefits growing out of an automobile accident in Tennessee in which plaintiff, a Florida resident vacationing in Tennessee, had been injured by a Tennessee resident. The summary judgment ruled that defendant was entitled to a sub-rogation lien against the $8,750 proceeds of a settlement to which plaintiff was entitled from defendant Allstate Insurance Company as the insurer of the Tennessee tortfeasor. Both parties agree that the propriety of the subrogation lien is governed by Florida law. Plaintiff contends that the trial court erred because section 627.736(3), Florida Statutes (1987), the Florida Motor Vehicle No-Fault Law, precludes such a lien by providing:

No insurer shall have a lien on any recovery in tort by judgment, settlement, or otherwise for personal injury protection benefits, whether suit has been filed or settlement has been reached without suit.

We agree with plaintiff and reverse.

Defendant argues in effect that that statutory prohibition of a subrogation lien is implicitly qualified by the next following sentence in section 627.736(3) which provides:

An injured party who is entitled to bring suit under the provisions of ss. 627.730-627.7405, ... shall have no right to recover any damages for which personal injury protection benefits are paid or payable.

The argument is to the effect that, in light of that next following sentence, the statutory prohibition of a subrogation lien contemplates, and therefore applies to, only situations in which the injured party would have no right to recover from a third party tortfeasor items of damages for which PIP benefits were payable. Defendant, citing Shelton v. Milam, 492 S.W. 2d 917 (Tenn. Ct.App.1972), argues that in this case the injured party did have a right to recover such items of damages (and the above-referenced settlement proceeds included such items) because Tennessee law under which the $8,750 settlement money was paid to plaintiff, in contrast to the second of the above-quoted sentences from section 627.-736(3), permits such a right of recovery. Defendant, citing Tennessee Farmers’ Mutual Insurance Co. v. Rader, 219 Tenn. 384, 388, 410 S.W. 2d 171, 173 (1966), argues that Tennessee law, correspondingly, would permit a subrogation lien of the type awarded here. Defendant additionally cites Purdy v. Gulf Breeze Enterprises, Inc., 403 So. 2d 1325 (Fla.1981), for the point that the elimination in the second above-quoted sentence of section 627.736(3) of an injured party’s right to recover from the tortfeasor damages for which PIP type benefits are payable is for the purpose of preventing the injured party from receiving double recovery, the injured party having received those benefits from his own insurance carrier. The argument is to the effect that, since that right was not eliminated in this case, allowing the subrogation lien would prevent such double recovery.

While defendant’s arguments may have persuasiveness, they are principally aimed at the wisdom of the statutory prohibition rather than legislative intent. See Pfeiffer v. City of Tampa, 470 So. 2d 10, 17 (Fla. 2d DCA 1985) (when legislative intent is substantially manifested, “determining the wisdom of a particular legislative enactment is not ... a judicial function.”). We express no view as to the wisdom of the lien prohibition which has varying policy ramifications. We are not persuaded that the legislature intended that the statute be construed to mean other than what it plainly says. The wording of the lien prohibition is unqualified. We do not conclude that the legislature intended that attorneys for an injured party negotiating a settlement of the kind involved here should, in determining the settlement amount to be received, perceive that that amount would be subject to reduction by reason of a subrogation lien specifically prohibited by law.

If section 627.736(3) is to mean otherwise, that should be for the legislature to say.

Reversed and remanded for proceedings not inconsistent herewith.

PARKER and ALTENBERND, JJ., concur.


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Citator

Cited By

  • Hapney v. Cent. Garage, Inc., 579 So. 2d 127 (Fla. 2d DCA 1991)
    …. City of Tampa, 470 So. 2d 10, 17 (Fla. 2d DCA 1985). See also Blount v. State, 581 So. 2d 604 (Fla. 2d DCA 1991); Moretrench American Corp. v. Taylor Woodrow Construction Corp., 565 So. 2d 861 (Fla. 2d DCA 1990); Dubrian v. Allstate Indemnity Co., 538 So. 2d 151, 152 (Fla. 2d DCA 1989); Nationwide Property & Casualty Ins. Co. v. Marchesano, 482 So. 2d 422, 426 n. 2 (Fla. 2d DCA 1985). As Moretrench says, It is not the function of the courts to engraft an exception onto a clear and unambiguous statutory pro…
  • …nifestation of legislative intent which may not lead to what a court perceives to be a wise result.” Nationwide Property & Casualty Insurance Co. v. Marchesano, 482 So. 2d 422, 426 n. 2 (Fla. 2d DCA 1986). See also Dufrian v. Allstate Indemnity Co., 538 So. 2d 151, 152 (Fla. 2d DCA 1989); Pfeiffer v. City of Tampa, 470 So. 2d 10, 17 (Fla. 2d DCA 1985). Affirmed. RYDER, A.C.J., and CLAIRE K. LUTEN, Associate Judge, concur.…
  • Blount v. State, 581 So. 2d 604 (Fla. 2d DCA 1991)
    …al interpretation of legislative intent.” Pfeiffer v. City of Tampa, 470 So. 2d 10, 17 (Fla. 2d DCA 1985). See also Moretrench American Corp. v. Taylor Woodrow Construction Corp., 565 So. 2d 861 (Fla. 2d DCA 1990); Dubrian v. Allstate Indemnity Co., 538 So. 2d 151, 152 (Fla. 2d DCA 1989); Nationwide Property & Casualty Insurance Co. v. Marchesano, 482 So. 2d 422, 426 n. 2 (Fla. 2d DCA 1986). As Moretrench says, It is neither the function nor prerogative of the courts to speculate on constructions more or les…

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