MARCELINO VERDECIA, APPELLANT,
v.
AMERICAN RISK ASSURANCE COMPANY, A FLORIDA CORPORATION, APPELLEE
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A PIP-insured motorist challenged the constitutionality of a Florida statute allowing PIP deductibles while barring tort claims against tortfeasors for the deductible amount, arguing it violated the right of access to courts. The court affirmed the declaratory decree rejecting the constitutional challenge, holding that the no-fault scheme provides a reasonable alternative remedy.
The statute is constitutional because the no-fault auto insurance scheme itself provides a reasonable alternative remedy. The insured receives prompt payment for a reasonable portion of damages, premium reductions for electing deductibles, and substantial compensation through PIP, with deductibles capped at $2,000.
[1] A constitutional challenge to a statute barring a tort remedy for a deductible amount must be brought against the tortfeasor, not the insurer.
[2] A statute barring a tort remedy for a deductible amount does not violate the right of access to courts if a reasonable alternative remedy is provided by the overall statu…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the insured has standing to raise this constitutional claim, but such claim can only be urged in a suit against the tortfeasor — and not, as here, in an action against the PIP insurer.”
Establishes that the constitutional challenge must be brought against the tortfeasor because only striking down the tort immunity provision would provide the desired remedy.
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Join FLexlaw to unlock all legal intelligenceVerdecia was a PIP-insured motorist who elected a deductible on his PIP coverage. The insured sought a declaratory judgment claiming that Florida Stat…
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PER CURIAM.
This is an appeal by a personal injury protection [PIP] insured from an adverse declaratory decree which rejected the insured’s claim that Section 627.739(1), Florida Statutes (1983), was unconstitutional because it allegedly denied the insured his right of access to the courts, Art. I, § 21, Fla. Const., by barring any tort remedy against the tortfeasor for a PIP deductible without providing a reasonable alternative. This statute provides as follows:
“The named insured may elect a deductible 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 to apply to any other person covered under the policy. Any person electing a deductible or modified coverage, or subject to such deductible or modified coverage as a result of the named insured’s election, shall have no right to claim or to recover any amount so deducted from any owner, registrant, operator, or occupant of a vehicle or any person or organization legally responsible for any such person’s acts or omissions who is made exempt from tort liability by ss. 627.730-627.7405.”
§ 627.739(1), Fla.Stat. (1983) (emphasis added). Specifically, it is urged that the statute does not, as it should, provide that the insured have other insurance which would cover the PIP deductible amount as a precondition to obtaining PIP with a deductible. We disagree and affirm based on the following briefly stated legal analysis.
First, we conclude that the insured has standing to raise this constitutional claim, but such claim can only be urged in a suit against the tortfeasor — and not, as here, in an action against the PIP insurer. This is so because if the constitutional claim is ultimately upheld, only the statutory provision eliminating the tort remedy against the tortfeasor for the PIP deductible would be struck down as a denial of the insured’s right of access to the courts— and not, as urged, the statutory provisions creating the PIP deductible itself. In that event, the PIP insured’s only remedy would be to collect the PIP deductible against the tortfeasor — and not, as urged, against the PIP insurer because the PIP deductible provisions in the statute would still be viable. Plainly, then, the insured’s constitutional claim could only be raised in a suit against the tortfeasor in which the insured’s tort remedy could be restored — and not, as here, in a suit against the PIP insurer in which there would be no entitlement to have the PIP deductible provisions of the statute declared invalid. Compare Kluger v. White, 281 So. 2d 1 (Fla.1973).
Second, the statutory provision eliminating the tort remedy against the tortfeasor for the PIP deductible is constitutional in any event. This is so because a reasonable alternative is provided therefor by the entire automobile no-fault scheme, namely, prompt payment for a reasonable portion of the damages sustained by the injured party. The PIP deductibles have a ceiling of $2,000; the insured pays less of a premium for the required PIP coverage; and the insured is substantially, although not totally, compensated by PIP for the damages he sustains. Chapman v. Dillon, 415 So. 2d 12 (Fla.1982); Lasky v. State Farm Ins. Co., 296 So. 2d 9. (Fla.1974); Kluger v. White.
The final declaratory decree is therefore, in all respects,
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hannah v. Newkirk, 675 So. 2d 112 (Fla. 1996)…from tort liability by ss. 627.730-627.7405.” (Emphasis added). It follows that where a plaintiff has elected a PIP deductible, it must be subtracted from the jury verdict against a tortfeasor. See generally Verdecia v. American Risk Assurance Co., 543 So. 2d 321 (Fla. 3d DCA) (holding that section 627.739(1), the statutory provision which eliminates the tort remedy against the tortfeasor for the PIP deductible, is constitutional), review denied, 551 So. 2d 464 (Fla.1989). The purpose of the PIP deductible…
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Mari Heidenstrauch v. Bankers Ins. Co., 564 So. 2d 581 (Fla. 4th DCA 1990)…is a denial of access to the courts in violation of article I, section 21 of the Florida Constitution. Our sister court in the third district has recently decided this issue adversely to appellant’s position. Verdecia v. American Risk Assurance Co., 543 So. 2d 321 (Fla. 3d DCA), rev. denied, 551 So. 2d 464 (Fla.1989). We do not agree with the Verdecía court’s position on standing, but we agree with the holding that the statute is constitutional and we have no quarrel with the rationale behind that holding. Ac…
Authorities Cited
- Kluger v. Bernadette White & Manchester Ins. & Indem. Co., 281 So. 2d 1 (Fla. 1973)
- Washington v. State, 296 So. 2d 9 (Fla. 1974)
- Lasky v. State Farm Ins. Co., 296 So. 2d 9 (Fla. 1974)
- Chapman v. Dillon, 415 So. 2d 12 (Fla. 1982)