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HomeMy WebLinkAboutR-93-0124A RESOLUTION AUnMZING THE DIRECTOR OF FIMCE TO PAY MMaO ESTRADA, AND HIS AIMF44EY FCUM?r R"INS THE SER4 OF $13, E89,00, WITH" THE ADMISSION OF LIABILITY, IN rML AND C(MM S=EMENT OF ANY AND ALL CLAM AND DRWW AGNAMW THE CITY OF NJ -AM, MOWU 70 THE ORDER GRANTING PLAINTIFF'SMNIGN FUR SUMMAM JUDG24ENT AND FINAL S31MARY JUDGM3NT FOR PLAINTIFF, AS ORDERED BY JUDGE MARL-ARITA ESQUIROZ OF THE ELEVENTH JUDICIAL CIRCUIT CULM ON JANUARY 28, 1993, CASE NO. 92-03598 CA (10), SAID PAYMENT TO REI10,1RSE PLAINTIFF FUR SATISFACTION OF HIS WOR[KER'S CUdOVATION LIEN, OUTSTANDING MEDICAL BILLS, ANJURW-Y'S FEES, IWEREST AND COSTS, WITH SAID FUNDS TO BE PROVIDED FF04 THE INSURANCE AND SELF INSURANCE TRUST FUND. mgREAs,, EMILIO ESTRADA, through counsel,, filed a claim against the City of Miami resulting from an accident that occurred on September 11, 1989 at or near the roadway of Northwest 12th Avenue and NortIrweest 8th Street, Miami, Dade County, Florida; and WHEREAS, the above claim has been investigated by the Risk Management Department, the Police Department,, and the City Attorney's Office and it is recommended that this claim be paid without admission of liability for the sum of $13,689.00; and %HMM, a Motion for Surmwxy Judgment in the above claim was approved and signed on January 28, 1993 by Judge Margarita Esquiroz, Eleventh Judicial Circuit court; NOW,, noWWZI BE IT RESOLVED BY THE C0*nSSION OF TM CITY OF MUM, FLORIDA: .......... Section 1. The Director of Finance is hereby authorized to pay to -11 EmTrIO ESTRADA and his attorney ROBERT ROBBINS the sum of $13,689.00, without CITT COMUSSION --c IMTMG OF FEB 2 5 1993 R*w1uUon No. 93- 124 y ids against the City of Miami. Pit to the C)rder Granting Plaintiff Is !Motion for ftmxy ftt and, FJ w3 ft=WY Agmsat for Plaintiff , as ordered. by JWge Margarita FsyW= of the XLe venth Judicial. atrouit Court on January 28, 19M, Case No. 92-ME98 CA (10), mid payment to reize7 se Plaintiff for satisfaotion of his worker's oompensation lien, outstay' medioal bills, attorney's fees, inert and oosts, with said funds to be provided from the Insuranoe and Self-Insuranoe Trust Fund. Seoti.on 2. Mis Resolution sW.l. beoome effeotive imnediately upon its PASSED AM ADOPTED this 25th day of February 19M. ALTffi'P xAVIM L. mAYdR i MAT`I'Y tmw, G''I'I'y C LM r • • :�• • • air it • • Li :�� r � rr "�l':�;A• 2 93- 124 CITY OF MIAMI. FLOMDA INTER -OFFICE MEMORANDUM TO Honorable Mayor and Members of the City Commission FROM A. Qu nn Jones, 13:1 City Attorney DATE FIE February 16, 1993 J-93-118 SUBJECT Estrada, Emilio vs. City of Miami Case No. 92-03898 CA 10 REFERENCES L No. L-92-071 ENCLOSURES On or about September 11, 1989, Plaintiff Emilio Estrada, a City of Miami employee, acting in the course and scope of his duties, was injured while riding as a passenger in a City vehiole. Plaintiff's vehicle was southbound on N.W. 12th Avenue approaching N.W. 8th Street when the tortfeasor's vehicle, also headed southbound, turned suddenly into the City vehicle. Mr. Estrada suffered severe facial lacerations, a fractured right wrist and a fraotured pelvis. Estrada received twelve thousand two hundred twenty three dollars and forty five cents ($12,223.48) in workers compensation benefits. The tortfeasor was cited for careless driving and was sued by Mr. Estrada who successfully negotiated a settlement in the amount of seventy two thousand five hundred dollars (i72,800.00). From these funds, Mr. Estrada reimbursed the City of Miami six thousand eight hundred dollars ($6,800.00) of workers' compensation lien. The difference between twelve thousand two hundred twenty three dollars and forty five cents ($12,223.46) and six thousand eight hundred dollars ($6,800.00) paid were consumed in the pro rata share of attorneys fees. Plaintiff. Estrada, now seeks to recover the six thousand eight.hundred dollars ($6,800.00) plus outstanding medical bills (admittedly not paid by City of Miami) and attorneys fees necessitated by this action from the City of Miami's PIP coverage. $ 8,800.00 1,378.00 1. J574 . dd $10,050.00 1,000.00 2,800.00 $13,689.00 - Satisfaction of Workers - Dr. Lazaro Guerra - Health Claim Management - Total - Interest - Attorney's fees - Costs Compensation 93- 124. (Rc, Honorable Mayor and ' February 16, 1993 Members of the City Commission Page _ 2 _ j Attaohed is a legal opinion, obtained by Risk Management, whioh outlines the City's obligation to make the employee, Emilio Estrada, whole and with whioh this offioe oonours. Ao©ordingl.y, the Plaintiff suooessfully obtained a Summary Judgment with liquidated damages in the amount of thirteen thousand six hundred eighty nine dollars ($13,889.00). M088:DOF:kd:bse oo: Cesar E. Odio City Manager �f IN THE CIRA COURT OF THE I ITH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA -- DIVISION: C J j CASE NO.: D Plaintiff(s) Vs. ORDER 9191 tNWORANTING PLAINTIFF'i (14: C.1 1 ) F- ,� I Defendants) J, r�". THIS CAUSE having come on to be heard on Joe ""G' r on Plaintiff 's/8efendm9ft Motion ro r -''�J�(� "A�/bPr1 k.. and the Court having heard argument of counsel, and being otherwise advised in the Premises, it is hereupon, ORDERED AND ADJUDGED that said Motion be, and the same Is hereby I �� / 1 I A- � DONE AND ORDERED in Chambers, at Miami, Dade County, Florida this day of 73 40 Circuit Judge Copies furnished to: e—o • ►-i 93- 124 r ALVIN N. WEINISTEIN ALGENT E. MOON SCOTT Wm. WCONISTEIN MARRY O. MAVLT Or COL'NStL LAW C?rr'ICES 'WIRMSTRIN, B1AvLy Sc NiooN PROrE3•JION.�I ASSOCIATION 920 BISCAYNE 9UILOING 19 WEST f LAOLEP STREET TICL:PMONE (305) 377-3042 rAa (305) 375.0921 October 5, 1992 Mr. Michael L. Misler Liability Supervisor CITY OF MIAMI Department of Risk Management 300 Biscayne Boulevard Dupont Plaza, Suite 328 Miami, FL 33131 Re: Claim of Emilio Estrada P.I.P. vs. Workers' Compensation Benefits Dear Mr. Misler: rOwT 04T906 OtrTOS less MrNowT •Tweet • aUIT! 10* rOMT MY906. PLtI11110A 33001 MAIM"O ASONtSt P O. 0*9 awa0 top? Mvens. rL0911,10A 010008 TcL[PM0II6 (013) 334-60" rAs (613) 334•Ia`Y The question we were asked to answer is whether or not Mr. Estrada has a valid claim for PIP benefits. The answer is des. FACTS Mr. Estrada, a city employee, was injured while riding as a passenger in a city owned vehicle. " He received workers' compensation benefits of $12#223.45. Mr. Estrada made a third party claim and recovered $72r000.00. ` He paid his attorney $23#925 and incurred costs of $1,06 5.39. He then paid the City $6,800.00 as reimbursement. for $12,223.45 paid to him in workers` compensation benefits. the _— Benefits due under section 627.736, Fla. Stat. are primary, however, payments made under any workers' compensation law are credited against PIP benefits payable under the statute. 93- 124 El Mr, Michael Misler Liability Supervisor CITY OF MIAMI Department of Risk Management October 5, 1992 Page 2 See section 627.736(4) Fla. Stat. E The purpose of the above -mentioned statute is to preclude a double recovery ( that is to prevent the employee from receiving both PIP and workers' compensation benefits). So. Carolina Ins. Co. v. Arnold, 467 So.2d 324 (Fla. 2d aCA 1985). Where the employee recovers from the third party tort feasor, 6comp carrier or self -insured employer is entitled to reimburse- ment less its proportionate share of attorneys' fees and costs. (Section 440.39(3)(a) Fla. Stat.) Where the employee reimburses the comp carrier or self -insured employer, he is entitled to receive PIP payments so as to make him whole. The intent of the cases (hereinafter cited) is to avoid the employee from having deducted from his settlement the amount received in workers' compensation benefits where he has PIP available to defray the expenses. THE LAW Y In So. Carolina Ins. Co. v. Arnold, supra, an employee was injured-- in an acc ent w e In the scope or h s employment with Greyhound Lines, Inc. (a self -insured employer -- as in the instant case). He was paid workers' comp benefits. He settled his case against the tort feasor and then settled the workers' compensation lien (as in the instant case). He then sought recovery of PIP benefits. The court held that the employee was entitled to PIP benefits it held: U Mr. Michael L. Misler Liability Supervisor CITY OF MIAMI Department of Risk Management October 5, 1992 Page 3 1. Workers' compensation benefits are offset against PIP in order to avoid duplication of benefits. 2•. There is no duplication where comp is repaid from the third party settlement. 3. Since Greyhound's subrogation lien was satisfied from the a��m2l�loj �ees,' funds, the employee is in the same position that he would have been had no comp claim been made. 4. The difference between the comp benefits Mr 209.00) and the $5,000.00 repaid by the employee represented Greyhound's pro rata share of attorneys fees and costs under section 440.39 Fla. Stat. The facts in Arnold are remarkably similar to those of the instant case. Subsequent to the decision in Arnold, the Fourth District in 1988 decided Greer v. State Automo-b Ins. Co., 530 So.2d 509 (Fla. 4th DCA 1988). In Greer, the court held the employee was entitled to claim PIP coverage to the extent that her loss exceeded the workers' comp payments up to the limit of the PIP coverage. The Second District in 1990 decided Fortune Ins. Co. v. McGhee, 571 So.2d 546 (1990). A different panel of the Arnold court reaffirmed Arnold. The facts differed in that the injured employee received $6,000.00 in comp benefits and settled her tort claim for $15,000.00. kaj Mr. Michael L. Misler Liability Supervisor CITY OF MIAMI Department of Risk Management October 5, 1992 Page 4 She repaid the comp carrier $2,000.00 then brought an action against Fortune for PIP benefits without offset for comp benefits. The employee was insured by Fortune with a $10,000.00 PIP policy and a $2,000.00 deductible. The court held that since the comp carrier paid $4,000.00 for whOh it received no reimbursement that payment more than exhausted the -PIP deductible. Therefore, since the deductible had been satisfied, Fortune was not entitled to another $2,000.00 deductible against benefits ultimately due. The holding in the case was that were the $2,000.00 deductible to be applied the employee would not have been provided full insurance.. The same district in Atlanta Cas. Co. v. Yadevia, 579 So.2d 213 (Fla. 2d DCA 1991) held that t e emp ogee was entitled to PIP benefits only to the extent that her satisfaction of the comp lien depleted the amount of her settlement. In:Yadevia, the PIP carrier had already paid the employee the amount for which she settled her comp lien. Lastly, the third district decided Allstate v. Mazorra, on June 2, 1992, (17 FLW 1400). It reaffirmed the holdings in Arnold, Yaddevia, and McGhee. '_ 40 -Z a Mr. Michael L. Misler Liability Supervisor CITY OF MIAMI Department of Risk Management October 51 1992 Page 5 Thank you for referring this matter to us. We look forward to serving you in the future. Very truly yours, Qen N. Weinstein ANW/1w 33- 124 El SOUTH CAROLINA INS. CO. V. ARNOLD 467 So.2d 324 (F1a.App.2 Dist. 1985) 93 -- i y �t _f X. 'f sa :1 V. 324 Vhs. 467 SOUT1111,3M REV011TEM, 2d tiF.ltlH:ti refuse to instruct the jus;y on jnatifiahle and excusable homicide. Sara Blumberg and Michael Dubhier of Duhiner h filumberg, P.A., West Pulm ileach, for appellant. Jim Smith, Atty. Gen., Tallahassee, and Joan howler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee. PER CURIAM. Appellant seeks reversal of her convic- tion of second degree murder. She claims that the trial court erred in refusing to instruct the jury on justifiable and excusa- ble homicide, and in failing to give sin in- struction which properly placed the burden of proof upon the State as to her insanity defense. When the court Rives an instruc- tion on manslaughter, it must also give sin instruction on justifiable and excusable homicide. See Hedges v..State, 17.2 M.2d 824 (h'la.1965); Pouk re. State, :159 So.2d :1'l;1 (Fla. •lei DCA 1978): Detnjord u. State. 449 .So.2d 9tl:i (Fla. 2d DCA 1984). Tl►ere- fore, we hold that the lriul court e"ed when it failed to properly instruct the jury, and we reverse and remand this case for a new trial. Because of this holding we need not reach appellant's second point on ap- Iwal. REVEMSED and REMANDED. HERSEY, HURLEY and DELL, JJ., con- cur. w o surMwertr►rt�tM SOUTII CAROLINA iNSURANCE COMPANY. Appellant, v. Itulph ARNOLD. Appellee. No. 8.1-1167,. District Court of Appeal of Florida, Second District. Feb. 1.1, 1985. Rehearing Denied April 22, 1985. insured filed declaratory complaint against his automobile liability insurer seeking personal injury protection benefits. The Circuit Court, Pinellas County, Eliza- beth Kovachervich, J., dismissed complaint, and appeal was taken. The District Court of Appeal, Ryder, J., 425 So.'ld 1164, af- firmed in part and reversed and remanded in part. On remand, the Circuit Court, Pinellas County, Fleien S. Hansel, J., re - filmed to offset insured's workers' comixm- sadon benefits against payinentx due under his personal injury protection claim and entered judgment in Isis favor, Insurer appealed. The District Court of Appeal, Grimes, J., held that where worker,' com- pensation benefits received by insured had been repaid from his third,party :settlement with tort-feasor, there was no duplication of recovery and insurti's claim for person- al injury protection benefits would not be reduced to extent of workers' compensa- tion benefits received from self -insured em- ployer. Affirmed as ameasded. 1. Innumnce 4-532. 0) Where workers' compe-nsation benefits received by insured had lien repaid from third -party settlement with tort-feaimr, Uiere was no duplication of recovery and insured's claim for personal injury protec- tion benefits under automobile liability poli- cy would not be reduced to extent of work- ers' compensation benefits received from his self -insured employer. 93- 124 0 r ;•:l)t'i'll t`AIMIIINA INS. ('(), V. ,lltNMJ) I'Lt 325 t:tt, :k,4" -, ,bl 1114 11 A 41,1, a alit 19, ti z. IIIr:urattrr-=,53!..+t:1) I►CA lt.KI), tit renrtnd. lit<' trl:tl ttiltrl I►ifferenrt' IrOwt-rn %Yorkers' vomlwti- Wad, l,retmeittel! with Ille is-olu ter c411t•0wr (I, sttitm ht•nrlit� fir $6.21119 ainl s.loNN) �IIIt1u. ttff�s t :slrlrs•!h•t,' vrrn (�t•r�` t �tlnit, n�a11<tn 1:a1inll rt•11111tn1.,willt•It. 1'I'111-1.twlllI'll elnldltl•. ht•Ili'llt_ti agnill"t 1):11'111t'Ilttt 41114' 111111rt' Iliti I.r's trill ral:1 Afar,' r►r :allttl•1rev fees .111,1 I'I 1' t'lalln. 'I le cot11'L elrl•1i,11,11 (t► Ilu No alld 1 saws Inttlt•r statute, which shooltl tot III• eaten -I a Pi,•ellm judgmeoi ran altln•Ilet• I1,- t-har;r11 al;aill'l injn►•t•tl insured seekiley; lt, Keller with prejudlrnani interest of rernver (n•l-mm:11 llljllry pnott•rti,ttl lwoeril� $2.229.74 7. under :uttunatttilt, liability pansy. 6Vest's The statotory lirkivixiolls pertioetlL to this h.ti.;�. 4 •t•t11.a!1• appeal are as follows: :). Insert• t a :I 1:1) INI -SURI' WS RI(ill'I:ti TO 1ti;COV- PrejudKi►u•►it interest awartled to in- h,ItY OF SI'h,CIA1, 1►AMAI,i•:N IN `I°Ol►1' cured who succeeded on his claim for leer- CLAIMS. —No insurer shall have a licit sonal injury protection toenefits: uncter auto- kill any recovery its tort Ivy judgment, ► nlolnh• liability laalivy should have beetl as' settlement, or otherwise for persona) in- xe•ssell :it tell lttn'ent rattler that► 12 ln•r• jury protection I1tvtefilts, whether mutt, hilts t•,•nl. West'x F.S.A. 4 1iV.7:I4i14N0' beeit filed or seltlenteot has belt►► re:acheel without suit.. An injured party w•ha is — —"— entitled Lo briny; suit. under the provi- Gar-r W. Nicholson of Garson, Guemmer lions of s. 627.737, for his legal represenL- & Nicholst►n. Tampa, for :aplrellaiiL :aUve, shall have no right Lo recover any Jefferson de !t. Capps, tit. Petersburg,Leectiom d:unagex for which persunad injury pru- for :tpllrlhee. ltroefitls are paid or Irlyal►le.... (4) IIENEPTINS; WHEN DUE. —Belle - ram slate front m, iuemrer kit I--- t"►7 (i1 IMI':.S, Judge. 711is rase involves the (luestioll of wheth- er an injured parly's claim for torrsonal injury pnllectio n (11111) benefits must Ise reduced lu the exletl or workers' fLoml►eu- salion Ixtnefitx received when the workers' 4XIMIN•11s:atiun sobn►KaLion lien li ax lit -ell satisfied from the pron-mis or a sett mitenl with the third part y tortfeasor. Appellee wax injmcvl in an accident kin Man•h 19. 1980. while working for Grey- hound Lint es. Irr. i;neyhound, an a self-in- suntil einjilayer. lutiot worker ec e•t►tniteuxa- titon wage Inherits anti mt-tliral exi►c•m ex it, and toes IN•is:tif of a111111I1eL in tile sou► (Or $6,21rl. Appellee settled his third juirly daiut wit,li the offending driver and her itmurer and selileel Ilue workers' contl►etim- timur lien of (ireeyiuomui for $40)1). Aplrwlleae then sueetl alolwIlaist for recov- ery of I'll' lo•neraN arixing fnain Ile uevi- dent. '1'le r/►urt dittnliltxeel Use miliplsunl kin list- premise that al►l►eller x aeeralenl was mot widtiu the se'oloe of 11111 coverage. '[ x court revs•ntal. Aritulel r. ,Nouth (earulinaa faaxar indw (ia., •i:!S tit►.2d I I&I lhht. 2t1 7:10-627.741 shall ire primary, except WILL lwoefils reeceive it under any worket:s' coml►ensatiun law or Meelicaid as pr•o►vid. ell tender 42 U.S.C. s. 1396 et sell. shall Ire craillitcd :against tilt benefits provided by subsetruon (1) and Shall be slue Mill payable as t►sx acerues, ul► in re•reipt of neaminable pno►f of silo, le," Mori Ile• :unoont of exl►t•nses :utl lass inrsu•rs it whir, are coveneel by the ltdiey isauetl under xs. G'r .7:11)-ii27.7.11. Apl►ell:tni argtoex that under the literal wunliog of Kill lxet•tiatl (4), it is (.1101e41 ill credit for workers' coayocnsaUon luruefils received by appellee. A111e11ee rexltiltis that (-lot- iwoerils were never really ret•eivwl Iowa tse Greyboutsd wax repaid from the l►nrtv•edx of a1111e•11eN-' s seltlemetl with llle lhini party tarife:aosor. 11le rase is one oaf first ijoprexsitm and arises leeeause Ilse xtalote dt►ces trot precisely addreNs this fav- teal situation. However. we are Itermiadeti that the court readied the current re -salt. 111 I lad appellee nut Well k-ovened by workers comlovimation, there wou4I Ire tau questiou of Iris right Lo 1111' 1►emt(ils. The 93- 124 Jt� 326 Fla. •167 S0 1,1TlIhKN Itha'(>It'1ER. 2d SEAM. _= .1 4 - Imi-pose of subsection(•I) in requiring; work- prejudgment interest of $1,802.70. As _ erg- con►l,enMation payllieslts to 1►e offset an►ended, the judgment is affirmed. :1g1111►Mt I'll' I,crne it4 is L41 IWIM-11111e :1 4111111• catiml of recovery. Here. however, there is RYDER, C.J., and 1WHO iNOVER, J., p no duplication of recovel;V hecuuse the concur. .; workers' cmnpensution loetiefits have been repaid from appellee's third party settle i ment. We need not he concerned with the O �[ItltVt[H[17StIM ano►naly that cider subseetion (a) the ap- - I►ellee had no right to recover from Lite • ;•'' thin) early any damages for which 1111' heucfilM were payable, In wit,: nledics►I and ,.. 4. disability benefits, while Greyhound could obtain full reimbursement for the payment Rome S. Braxton MITC11F.U.. of medico) and disability benefits out of Appellant, appellee's recovery under section 440.39, V. Florid. Statutes (1979). Tke fact remains Wayne T110111AF. Appellee. • that since Greyhound's subrogation lien has been satisfied from appellee's funds, No. 8.1-1472. appellee is in the same posture that he District Court of Appeal of Florida, 1 would have been if the workers' compensa- Second District. tion payments had never been made. Al►- �' peilee should not be penalized simply be- Feb. 15, 1985. ; '• cause lie was hurt on the job. Itehe:►ring Denied April 17, 1995, 121 Our holding is consistent with New York case law on the same subject. Grcllo An alslwal w: i Laken from a judgment =: r. Doxzykoteski. 44 N.Y.2d 894,379 N.K.2d of the Circuit Curt, Hardee Cuunty, It. ' 1(il, 4U7 N.Y.S.2d ti:ia (1978); Mown. Or- Earl Collins, J., quieting title to a three• • tie, 75 A.D.2d M1, 427 N.Y.S.2d 415 (1980), acre parcel of mud property in favor of — The difference Itetween the workers' com• holder of corrective quitclaim deed. The ' pensation henefits of $6,209 and the $5,000 District Court of Appeal, Boardman, F.cl• subrogation rein►bumement repceesent ml wart) F., (ltet.) .Irnlge. held that olnis minn of Greyhound's pro rata share of aLLurney's east and south boundary calls front legal "patent description in deed left description - fees and costs under section 440.39, which ly ambiguous," or subject to such uncer- =` should not be charged against appellee. tuinty appearing on face of instrument that 131 As a secondary Ix►sitiun, appellant court could not discern from Ianguuge of instrument, mud in light of all facts and argues that even if Lice workers' con11►enau• circumstances referred to therein, parties' tion payments are disregarded, Lite court intention ass to what land was to t>r con - miscalculated the amount due under Lite veyed, thus rendering deed a nullity. • � 11I1? coverage. Appellee concedes this Reversed and remanded with di - Ow r int and a rec.� that the total authorized ' I11' IwuefiL um $4,373,12, ApInAkult is recLitnlM. also correct in its assertion that prejudg- ment interest should have lieen assessed at 1. Deeds ten l►erct-nt rather than tine twelve Im-weenL 'I'o effect u valid conveyance of land, u 4 (i27.73(44)(c), Flit.SWL (1979). deed lutist cunluia :► Ielsl description which We amend Use judgment, to reflect a re- is sufficiently definite and certain to 1wrinit covery of x5X13.11 in h11' be-nefitss and land to be identified. 93- 124 h �� KIM Ez J GREER V. STATE AUTO. INS. CO. 530 So.2d 509 (Fla.App.4 Dist. 1988) :T 93-- 124 �t GREER Y. STATE AG"rO. INS. CO. i�a. 509 C11e st S" 0-m 2A 9" {p%app. 4 DW. i f)M) PER CURIAM. The state having confessed error the con- viction and sentence under review be and the same are hereby reversed with di- rections to enter a judgment of acquittal on behalf of appellant. Reversed And remanded with directions. O SsiiMV+f*��{rt�YM r Jennie GREER, Appellant, v. STATE AUTOMOBILE INSURANCE COMPANY, Appellee. No. 4-86-3074. District Court of Appeal of Florida, Fourth District. Sept. 7, 1988. Insurer sued insured who waa injured in automobile accident in course of iter employment to recover duplicate benefits paid. The Circuit Court, Broward County, Robert C. Abel, Jr., J., entered summary judgment in favor of insurer, and insured appealed. The District Court of Appeal, Stone, J., held that insured was entitled to claim coverage to extent that her loss ex• cmied workers' compensation payments up to Innits of her PIP policy. Reversed and remanded. "= insurance 4-532.50) Insured, who was injured in automo- bile accident in course of her employment, was entitled to claim coverage from insurer to extent that her loss exceeded workers' compensation payments she had received up to the limits of her PIP policy. West's F.S.A. 6 627.736(4). Robert Alan Rosenblatt of Robert Alan Rosenblatt, P.A., Miami, for appellant. Samuel Tyler Hill of Hill, Neale and Ri- ley, Fort Lauderdale, for" appellee. STONE, Judge. Jennie Greer was injured in an automo- bile accident in Lite course of her employ. ment. She received Pill benefits from State Automobile Insurance Company for loss of earnings and medical expenses. She subsequently received workers' com- pensation benefits for substantially the same period. The insurer sued for recov. ery of the duplicate benefits paid. The appellant counterclaimed for subsequent lost wage benefits for which she has not been compensated. The trial court entered a summary judgment against the appellant on the counterclaim and entered judgment for State Auto for the duplicate payments. We reverse. Section 627.736(4), Florida Statutes, of the Florida Motor Vehicle No -Fault Law, provides: (4) BENEFITS; WHEN DUE. ---Rene• fits due from an insurer under sa. 627: 730-027.7405 shall be primary, except that benefits received under any work- ers' compensation law or Medicaid as provided under 42 U.S.C. s. 1396 et seq. shall be credited against the benefits pro- vided by subsection (1) and shall be due and payable as loss accrues, upon receipt of reasonable proof of such loss.... The purpose of this subsection is to pre- clude a duplication of recovery. South Carolina Insurance Co. v. Arnold, 467 So.2d 324 (Fla. 2d DCA 1985). however, here there is no duplication to the extent that the potential loss exceeds the workers' compensation payments. In Comeau v. Scfeco Insurance Compa- ny of America, 356 So.2d 790 (Fla-1978). the supreme court recognized that an in- sured is entitled to recover PIP payments for lost wages which supplement, but do not duplicate, the workers' compensation benefits, until the PIP limits have been paid. The payment of workers' compensa- tion benefits does not reduce the potential supplemental coverage available from the PIP insurer. Cf. Comeau v. Sgjeco Insui- A r t.. 9 3 -- i. 2 4 . G t a 510 Fla. 530 SOUTHERN REPORTER, 2d SERIES once Company of Americn; Kovarnik v. Royal Globe Insurance Co., 363 So.2d 166 (Fla. dth DCA 1978). We conclude that it was error to grant the summary judgment in favor of State Auto on the counterclaim. The appellant is entitled to claim coverage to the extent that her loss exceeds the workers' compen- sation payments, up to the limits of her PIP policy. We rind no merit in appellee's contention that the appellant was required by law to file a formal claim form with the insurer before being permitted to file a counter- claim. The additional coverage was clearly not available until such time as the insurer prevailed on its complaint and recovered the benefits claimed by appellant for the identical expenses paid under workers' compensation. The insurer is not entitled to retain the benefits that are otherwise due the insured simply because the insured placed herself in this position by contesting the State Auto claim. We note drat appel- lee's statute of limitations argument has not been considered by us as it was not previously considered by the trial court We therefore reverse and remand for further proceedings. GUNTHER, J., and TOBIN, DAVID I.., Associate Judge, concur. M O iUTIfI�M�tT111M DEERFIELD REACll PUBLISHING, INC. d/b/a Deerfield Beach/Lighthouse Point Observer, Ap- pellant, s. Jean M. ItORII, Mayor of the City of Deerfield Beach. Appellee. No. 57--2195. Diatrict Court of Appeal of Florida, Fourth District. Sept 7, 1988. Publishing company brought suit for injunctive relief against mayor for alleged R violation of Sunshine Law. The Circuit Court, Broward County, James M. Reas- beck, J., dismissed complaint for failure to state cause of action. The District Court of Appeal, Gunther, J., held that complaint was deficient in failing to allege by name or sufficient description identity of public official with whom mayor allegedly violat- ed law. Affirmed. Stone, J., filed opinion concurring spe- cially. Injunction as1180 ) In order to state cause of action for injunctive relief under Sunshine Law, com- plaint must allele by name or sufficient description identity of public official with whom defendant public official has alleg- edly discussed public decision -making pro- cess in nonpublic forum without public no - Lice in violation of law. West's F.S.A. § 286.011. Douglas L. Roberts, Ronald B. Ravikoff, and Humberto J. Pena of Zuckerman, Spar, der, Taylor & Evans. Coral Gables, for appellant. Saul Smolar, City Atty., Deerfield Beach, and A. Thames Connick of Spear & Dcuschle, P.A., Fort Lauderdale, for appel- lee. GUNTHER, Judge. We affirm the trial courts final order of dismissal. Appellant, Deerfield Beach Publishing, Inc., brought the instant suit for injunctive relief under the Florida Sunshine Law, sec- tion 286.011, Florida Statutes (1985). In the amended complaint, appellant alleged that the appellee, Jean Robb as the Mayor of Deerfield Beach, violated the sunshine law by discussing on certain dates with other commissioners significant portions of the public decision -making process in non - ► t 93- 124 01-1.1-0 Ill - x f -vim '}j. . .r s.¢' H !-)46 Fla. 571 So)1)'1'IIF:ItN REPORTFat. 2d SERIES Nonetheless, Culuau attentl►tx to apply the lunguttge contained in section 124).- li0(:t),= do'lorida Statntes (1989), that specifi- cally requires written notice to each appli- cant of a denial or grunting of :tit applica. unit, to Lite "deeper" provision of section 120.(0(2). The first district ill Simmer it, nepart»rend of Professional regulation, 555 So.2d 919 (F`la. 1st DCA 1990) rejected that very argtitnent when it found that nntification by telephone to -,tit applicant that her nlq►liculion had been denied within the ninety -day lterinl, although written de. nial dirt not occur until after the ninety (lays hull expired, was enough to avoid auttimatie approval of the application under Lhe "deeper" clause. The Sainner court slatted: "lf the IegislaUfre had ititet►ded to specifically retlitire written notice wit11111 ninety (lays, it would I►ave been it simple nuttier to have inserted Lite limitation in this statute." lit. at 921 (eitulion ontitLed). 1211 If, its Simmer holds, at verha) denial is sufficicttt to satisfy the lime lili►iLit( iills of seclitin 120.61)(2). linen the ilriestion re- inains whether tadasit received willain the ninety Clays, at least, oral notice that itm application wits denied by the DOT. 'lliere aeons to lie sonic dispule r►a this issue. Caluaa maintains that District Sueretatry Kenrieily's verbal (denial of Lite application at Lite 1►ariaes' June 1, 19H9 i1leeUng wall e(luiv(tcal and iuconclumive at heal. how- ever. Lite affidavits and suplmirthig tltw- upents presenlftil by lm)th sides Itelow es- Wilish 1-41110adively that tit the June I meeting Kennelly inforuted (,►luau's repre- sentatives that Lite application, as it stitcul, would not lie appmved, dtecatise it failed to satisfy conditions for approval net by Ken- Itedy in his OctAdler 10, 1986 letter LA) Calu- 2. That swittecotitt provides: (1) Esela ai,411 ant sliall The given Written intllce either Iicrutimlly air by mail that Ilia: agency inion't.6 tit grant air dray, auhas grant• ed or akitictl, tlic aliphrntGni lair licetibe. IN. Icss waived, a copy ail fhc 11044:4 slaall tat delivered for mailed its eat•11 I%Mrlv's atlurlldy tlf reciti-d and to cads itersun wins Itas rcqua-sled notice o1 ageacv action. Htull notice sliall inform Ilse rccipicul of any admiitistt•ativi: herring or judicial review which stay Ile avail- able to Ilint, dull indicate Cite Iii•tacedure which nutst be followed. and altall state the sat. The fuel Hutt Lite DOT, through Ken. nefly, left open the I►(M.Sibihty of future approval of such driveway connection per- mit if all Lite requirements set forth in the 19H6 letter latter were met slid not alter the DOT's denial of tlfe upplication under its present. circumstances and Calusu's knowl. edge of that denial prior to the expiration of the ninety (lays.' Por Lite reasons stated, we reverie the order granting sunuuury judgment for Ca. lima and demanding that Lite DOT issue a driveway connection permit to Calusa. We remand Lite came to Lite trial court with directions that it dismiss Calusa'u petition for a writ of mandannts, without prejudice to Culusu pursuing its available avenue of relief under section 120.57. Iteversetl and remanded. C:AMNIP1.1 , A.C.J., anti BALL, J., concur. w _ O I itilamt 1t/1111 r FORTUNE: INSURANCE COMPANY. Appellant, V. Sharitn McGIIF.F., Appellee. Came No. 911d00279. District..,Co►irl of Appkeal of Florida, Second District. Dec. 1.1, 1990. Insured brought action aguinat IK-rxon- ul injury protection insurer. The Circuit applicable time limits. 11te issuing ageri y dull certify that the fwlice wus given. TI►e ccrlificatiot shall slates lite time ani1 date flat itillice was tilUilea) air delivcrri) anal sliall be filed wits dw ageewy clerk. 9 I lll.dn(t), Fla Slat. (1989). !. Caltisa Itas tits right, of which it has ah•eadv avallcd itu:lf, Its Iuu•ute a set-tio►► 120.57 licaring !tc(iw4: file agency csaccrning llte merits atf li►e IX)Ps denial of its applicadaai and. if tiiN salis. fied, to seek Judicial review (if the agency's deci- sion oil fltat matter. ;: 93- 124 FCiliI N1•, INS. CO. V. MCMI!':F. 547 Cns rr S71 #*Jd 946 (Fiw.Amn. 2 mist. 19") Court, Lee County, It. Wallace Pack, J., third -)►arty t.ortfeasor. We reverse the awardee) (toll iwrsonal injury i►rartartim► jotil mea, finding( lhrtL under the fartrt of benefits lu iosored after itmired satisfied this cstse, McGhee wo►ild be overcompensat- workers' cosiil 'iisadotl ito`n from nutitey re- ell if the judg;menl. would Ire allowed Lo i ceived in seLdt-ment with third -party tort- sta ml. feasor. bisurer apitealed. Tile L)istrict Court of Appeal held that insunni was nut entitled to full {tersonal injury protection benefits wilhcmll offset for workers' com- lwnsatimi IHvo•fits she roweived. Iteversed and rentanded. 1. Insurance 4' r32.b(3) inmired wax not entitled to full pemon- al injury pnotection benefits without offaeL ft►r workers' compensation i► iiefit» she re- ceived, even though she xal.ixfi,i workers' f9ltti{tenxation lien but, rather, slip wits only entitled Lot itrrsonal injury protection bent.- fita to the extent that satisfaction of Com- itenitation lien deplel.441 tunuunl of lhird•par- ty settlement; to hold uUterwise would re- sult Ili overconiiensalion of inanred. Wist's F.S.A. §§ 627.736, I;V.73(Kil). 2. Insurance t-532.50) Personal injury protection detluclible can be exhausted) by payments from other Roureea, including workers' coml)ensnlion coverage, and need not lie exhausted by payments from claimant's personal funds. Raymond T. Ellig;ett, Jr., of Schrupi Buell & Ellig;ett, P.A., Tampa, for appel- laaL Bruoe i.. Scheiner, Fort Myers, and Di - asp It. Tutt, Fort patudeniale, for api►eilee. PER CUi RAM. Fortune Insurance Clonal►any (Fortune) aAmis a final judgnient whieli :iwanied full {iersnoal injury pn►tecLion (11111) beue- fits to Sliaron McGhee after McGhee satis- fied a workers' coml►ettsation lien from money receivedl in a settlement wills Lite 1. Section 627.736(4), F'loWida $tallltet (1991). ef- fettiwly ntalsrs With I'll' MIM1 workc►7i rtunl►eu• ealkm pt inary coverage row a work -related aua►tiud►ile accident. It is ut►tisital fi►r two in• usraum ctimpaoics tt► prt►vide 1►rintary cmeraitc without a system Io detcrtotiuc lxrtitancntly -)n McGhet! suffered an injury when her car wits rear -ended. Iler injury was cumliensa- ble under workers' compensation, and Lite cony►e i satimi carrier paid over $6,000 in 1te•i11•fits lit 114-1.. She snhseeiuenlly melded her Itevsonld injury claim agrailisl. Lite lorl- feamw for the lort.(ensor'x $i5,M) liability limits. McGhee then puiel Live compensa- tion carrier $2,M0 for a full release of Lite coinitensitlion lien. McGhee filed slit action ng;ainst Fortune seeking; I'll' benefil. Her 1111' {nilicy wiLli leorUme was it $111,M) policy wiLli a $2,000 deduclilde. After n nunjury trial, the trial emirl. awarded McGhee Lite full amount of the tatirkem' conipensitlion payments, leas (lie $2,000 deductible, and entered a final juilgitienl in Lite itnannit of $4,011A.21 exclit- sive of cost., and atloriseyx' Peen. III 144-tion GV.7:16, Florida SLlttules (1985) requires that all insurance {tulicies for vehicles registered in Florida must pro- vitle 1111' Itenefils covering economic losses, including; int4{ical and disability (ur lost in- 0011110 ik'nefits. Although section GV. 7:1f►(4) provides U►at I'll' i►etiefils shall 1►e "priniary," it also states "glint l►enefils m- ceived under any workers' conipetisation law ... shall lie emmlited against Lite J PI PJ 1► ilefils {►rovicle'tl...." 'Thus, when bene- fils are received in Lite {teriod rhurtly after Uie automobile accident, the 1111' statute conk-niplatea Credit for Uie workem com- pennation lenefitn already rrcd'ived by McGhee. When the liability claim is KuL- Utsl, however, the plai►iliff in oblignU41 Lot rehultltme Lilt! worker' compensation carri- er. At that Imint, live plaintiff is eutitlt'd lt) n'c'eive additional benefits froiil tale I'll' carrier liecause Lite credit for workers' cunilwitsation no loitiger exists.) O 11wir resix- live pail" -him thnnigh "etilwr incur• :lace' clntises, air similar prownhtres. 91►e 1►rt.lo. lessis tktlR"151i'AllY) by olds cast: and similar cases at►tuxeni 111A1 dw Irsislanoe nlighl weil rectumiticr tlw athisahiilly of ntakinig high I'll' airs) wtockcrs cc►ngicnsaliene primary coverage in 93- 124 U I 548 Fla. 571 SOUT111FR 4! REPORTER. 'td SRRIPS McGhee relief► mi Lite ol►inioti io Yonth Carolina lavlitylure Company r..lrrtold, 467 So.241 :124 (Fitt. 21l I)CA 1985) to still - port her Itt►sition thstt she is entitled to full l'iP benefits withwit an offset for workers' compensation benefits received becitutte :the sutisried the comp eosntion lien. The in- jured plaintiff in Arnold settled a $6:2()! coinl►ensation lien for $5,(M. The court permitteil the plaintiff to recover the entire $6,209 from Lite till' currier, restsotting that there would 1►e no duplication of recovery because Lite plaintiff repaid the ctrnq►ensa tion lienefils from the funds received in u third -early settlenun►L. 'Cite court found that there was a rein►bursen►ont of all the contlwtisatioll t►e:itefits piti►l, noting that, Lite difference I► Lween the $6,2'09 surd the $5,0M subrogation reinthursen►ent repre- seitted the conil►enattlion rarrier's pro ruts slistre of atlorney's fees mid costs under sectiot 44I.31), Florida Statutes (1979), which should not, i►e charged against Lite pluitiliff. Fortune argues that file rationale of Ar- ►rold cannot be applied to justify the re.-cov- ery of (till I'll' lienefils to McGhee Isecuuse McGhee re puid only $ m)o in full tsatisfue- lion of Lite $li,l)l)t) ctnnl►ensat.ion i►uyment. F`ortutte contt:nds dual. even if silt amount for uttorney's fees and mats is cousidereai, McG'Itee will he overccnnl►enttuteil if site is allowed to receive full I'll' iwoefils. We find supllort for Fortune's liosiLion in Afora to. Ortiz, 75 A.D.111590, 427 N.Y»9.2al 415 (1999), a case upon whirls Use Antuld court. reheat. In at factually similar vitua- Lion Cite Mora court lield that Lite plaintiff would pie entitled to 1'IP lienefitss to Lite extent that Use satisfacLiun of l.ite coml►en- aaLion lien depleted Lite utnount of Lite t1►iril-l►sirty settlement. Applying like Alum holding to the facts of the ir►atant cask:. Mr(71tee would Im entitled to recover 1111' Ienefits its Lite amount of $2.401 lihnt the attiounl of attorney's fees and coals Imminit- II►csc craws. Alilumult else priowry reMuutsilsili- Iv lur rluin►s hatwllinli play real Issxicully with Ilse worlcrv; cuuq►rnwtiti►t carrier, it motehl ice sin►pkr if Ilse psieuury resewensihilily fen• dw: Iwysncnl of Iscodils resicd wish il►c 1111' carricr to the eatent t►f that ctivcraae. 'Mat nwilww9 vwwetd Wisuinatet ilia ►teed for millwgisent rchn. lwirscn►wue. Led by section 440.39(3)(a), F loridu ltittutes (111K5). Fortune i►aitits that the PIP benefits must lie reduced further by the $2,(M de- ductible. Ilecause McGhee settled the workers' ettrnl►ensation liest (or $2,(I 0, For. tune mainUtins !last it should owe little or nothing to McGhee. Portune essentially muintitins that McGhee must exl►end $2,000 of her own money, rather than the funds of another collulertal source, before Lite 1111' dcdtictil►le is satisfied. I'.) We have been unable to find any case in Florida which dixcuwtes at what I►t►int the deductible should be applied in a situation where a i►t-mon is entitled to hoth 1111' I►enefits still workers' coral► it ution t►enefitts. We, therefore, look to Lite legis- lative purpose behind section GV.739. 11te third district court found that "the over- riding purpose of Lite statute in it) assure complele insurance coverage for injuries:' Rierehirt r. Industrial Fin- eC Castiolly Co.. M 1-m'o.2d 29. 30 (Fla. 11 iICA 1981), nppr'omd, 447 Sc►:.d 1337 (Fiu.19X:t). The kutic'hirt court found that tine legislature accomplishteti that, purpose by permitting an insured to elect a deductible if Lite in - surest is covered by other insur•.aitre which will lay for the loan.= We hold that s fill' deductible run 1►e exltuumted Ivy i►aylliell s from other it utrces. including workers' comitensation coverage, unit lit"1 not l►e exlwustied by payments front lice claimant's personal funds. In this came, the workers' comlienaution carrier paid approximately $4,000 in benefits for which it received no reimhursemetiL This payment more than exhatmts Cite 1'11' deductible. TI►tr $2,000 which McGhee* Iwiil to suti►tfy the workers' conelmsmatiou tier ix effectively the lost $2,0011 of Lite benefits which Fortune would have -pawl in the ulatence of workers' cony 2 We have nto nverlew►l:ect 11W fact that %rclion 627.739 Iws limn oo►rtuled offer Ilse A aYrhia decision. We. Iwswever, lk.lieve that lite a iscnd- mcnt to the staltitc 1►at: lull Aeltes"cal ►1►e lcgislat►vt lwerlxua esf the statute:. 93— 124 SlIELIHN I.RF:RNP. r, WILLIAMS ISLAND fi')a, r49 � Clive# 171 On:td 549 112a.Ar p % Plat. l'19ri) t — Pensalion roveraltP.-'i Thim, the i'II' de• velopt-r who was finanrially nn,tble to per. ductible Iris niready preen satisfied in this form, was not entitled to recover hrtrkerage _ case and must not Ile npl►liml to the i'ii' fee ender either breach of contrnet or ' bent! S uttmlai ! Y 1ltP, i,e., t)lr -re-or, plus tttru►I im mertlit I henry. _ the amount of attnrnry'4 feem :sad ci► is, Affirmed. beSaaRe to do so would not provide rom• plele insomee coverage to McMiee. Accordingly, we reverse the final judg- Brokers 4-39, 5-1 ment. We remand the cause for proceed- !teal estate broker, who prtsiuced de- inp wherritl Lite trial court shall ent.111iml, Moller who wag financially unable to per. the compensation carrier's pro rota share form, was nut entitled to recover brokerage of attontey'n tees and costs pursuant lu fee under either breach of contract or section 440.39. lice trial court then shsll quantum meridt theory; broker failed to enter a judgment agaitlRt hort►tne for an perform any service for or confer tiny l►ene- amount which includes $2,000 this Lite fit upon property owner. camber's pro rota share of fees and costs. Reversed and remanded. Norman Malinnki, Miami, for appellant. CAMPBELI , A.C.J., and PARKER and Lapidus & h'raukel and Itichard L. Lapi- ALTENIIMMI), JJ., concur. dus, Miami, for nppellees. a ;A Before HARK1)IILL antl IIUUIIART o #nt.„,tMto�u„ and FKRCUSON, JJ. SIIh LDON GItM ENE lft A::SI)CIATF.4. IN(:.. a Florida corporation. Appellant. V. WILLIAMS ISLAND AN.SOCIA'I US. s Florida dimpled partnership, et al., Appellees. No. 90-12114. Matrict C art of Appeal of Florida, Thint district. Dec. lit, 1990. Real #-hole broker brought action against prollerty owner for breach of con- LracL On retnantl, MA %.2e1 1142, We Circuit Court, Dade County, George Orr, J., granted summary judgment for owner and aipleal was taken. 11te District CAmirt of Appeal held fait broker, who protlucetl de- 3. put for tits foritchy of tits unwkeri amilietaa• Brett viverage, the PIP coverage wlN{W have prt. vkw approximately $3.000 in b-cltefits flu OWN hollowing our revental of a final judg- tstent entered ttlmin a directed venlid in favor (if Lite defendant Williams Island As- xtniales in an :wLion for breach of contract, a brokerage commission, and quantum me- ant, the trial enstrt entertained :► motion for suounary jutlginent filt4l by the defen- dant, (as nor lirior decision had atil.horizeJ) and mitert4l a final rummstry judgment fur Olt, defendant. Shrldo►r (;n-en • t4 ARaor. r. Williams lrhrrrd Amor.. fort!) o' +W 2d 1142 (Fla.:kl 1 CA 19119), rro. dviird, 1694 :it►.'Ltl :15 (Fla.IMM). 'lire plaintiff Sholdon Greene & Associates, lmc. appeals. We affirm basal on it Iwlding Ulut We plaintiff, as a maUer of law, was not emti- Ut4l tit recover from Ute defendant Lmsed on Ute legal Unrories pled in Ute complaint. We reads this result Imenuse rite manage- ment company, which Ute plaintiff pmluc- etl to develop and Uten nutnagle a promltoc- tive lintel invemlment for Ute defendant, wits finane4tdly unable to perfonn. As a cottartluettce, Lite plaintiff, in ltralucing Inrrtion of kite t mcred daim which exceadcd its S2.tkJU dedui tible. 93— 124 , A114.AN AS. CO. Y. YAVEV1A Fla3 Clio an 574 2d 212 (ria.Apn.2 Ulm l"l) aKrecd, as a condition t.a Lite umbrella poli- cy, thist all lard motor vehicles owned by ATLANTA CASUALTY COMPANY, a their, were insured under the basic car poli- Gcor)tltt corporatil►n, Appellant, i sirs which, as we have explained, was not - the case with respect to the motorcycle, v, t Sec Thorne" Indemnity Co. u, Overseas Marybeth YADEVIA, Appellee. � Are Hardware Inc., 550 So.2d 12, 13 (Fla. No. 90-029G�,. i1 3d DCA 1989). No reasonable insured would in our view have understood the District Court of Appeal of Florida, _ tF umbrella policy to provide for coverage of Second District. — the motorcycle operate(1 by Jason, nor did 1' _ Lite Daughertys so understand, its their April 24, 1991. lt> delmsitiuns clearly show. They admitted Rehearing Denied May 22, 1991. s ; that they knew that Jason was operating Lite motorcycle without insurance! coverage. We find no inerit in the Daughertys' An insured injured in an automobile r additional arguments that there was cover• accident filed an action against her insurer age because Mrs. Daugherty signed Ja- to recover personal injury protection bens- son'x driver's license application, see fits for medical expenses. The Circuit Quinn r. Gu,•arr n. 354 5o.2d ,129 (Fla. 4Ui Court, Pinellas County, Fred L. Bryson, J., UCA 1978), that there was coverage under entered summary judgment for employee, the Intl etiwtivrs' ptrlicy for allegpil tegli- and insurer appealed. The District Court - itent sulwi-vision of Jw;ou by his parents, of Appeal, Lehat, J., held that insured was _ srr ('can►-i,li lk Au,rriea,t DI-liggisl Ills. tint entitled Lo recover further benefits r = Cu., 40 tio,'ld 451 (Fla. 'ld UCA 11185), surd from prrsunal injury protection insurer for -_ Hutt the loss w:t,�t nt)t within the :above medical expenses where insurer had al - referenced exclusion front the umbrella lwl- ' really paid 'assured Use amount for which , : - icy Im-cause the loss had not been shown la► the insured settled workers' compensation .. have occurred "while" the motorcycle w:cis lien against the amount of her settlement loving ol►eraltxl by Jasun; it wait unemitm)- with Lite tort-feasor. — vertiod that the death for which coverage Revera(.al and remanded. -_ wax clalitied was caused by Jason's opera- - tion of Lite nioturcycle. Nor du we find merit in Lite argument of Lite Daughertys 1. Insurance 4-532.5(3) concerning an oversized helmet having An employee injured in an automobile ; I,ern pn►vide(I to L�aric; that argument was accident by a Lhir'd party tort-feasor was = not raised li low and therefore was not entitled to ►erit nlal hiju { 1 ry protection here - = prnservn{ for apl►r�al. fits for medical expenses from her insurer Affirmed• uuly tar Uic extent that her satisfaction of Use worker's compensation lien on the pro- _— _ SCHOONOVER, CA.. sod DANAHY, ceeds of her settlement with Use tort-feasor ` R J., concur. deplete(1 the aniount of her setUcinent with — Use tort-feasor. — 2. Insurance 40--►532XA3) An insured injured in an automobile ourmatnrts. accident by a Utird party tart-feasor was entitled to personal injury protection bene- fits only ta, d►e. extent Usat Like insured would not diereby receive double payment from buUt wurkem' compensation and per- sonal injury protection. 2`-f 93-- 124:: 214 Fla. 579 sou' l[ERN REPORTER, 2d SERIUS Bryan W. Reynolds of Fox & Grove, Reversed and remanded for proceedings Chartered, St. Petersburg, for appellant, consistent herewith. Daniel C. Kasaris of Yanchuck, Thomp- son, Yount'; & Berman, P.A., SL Peters. hurg, for appellee. Clifford M. Miller of Miller & Miller, Vero Beach, amicus curiae by Academy of Morida Trial Lawyers. LEHAN, Judge. Defendant Atlanta Casualty Company, the PiP insurer for plaintiff Marybeth Yadeviu who was injured in an automobile accident by a third party tortfeasor, ap- peals from the summary judgment deter- mining that Yadevia is entitled to PIP ben- efits for medical expenses notwithstanding the payment of those expenses by Yade- via's employer's worker's compensation carrier. 11, 21 On the authority of Foriune In& Co. v. McGhee, 571 So.2d 15AG (Fla. 2d DCA IWO). we reverse. Under the eircum. stances of this case which are similar to those in McGhee, plaintiff is entitled to PIP henefits only to the extent that her "satis. faction of the (worker's] compensation lien (on the proceeds of plaintiff's settlement with the tortfeasor] depleted the amount of ... (her) ... settlement" with the tort fessor, i.e., to the extent plaintiff paid the worker's compensation carrier for the satis- faction of the worker's compensation lien, "plus the amount of attomey's fees and costa permitted by section 440.3%3Ka), Florida Statutes (1985]." Id. at 648. In other words, plaintiff is entitled to those benefits only to the extent that she would not thereby receive double payment from both worker's compensation and PIP. See also South Carolina In& Co. n. Arnold, 467 So.2d 324 (Fla. 2d DCA 1985). Since in this case the PIP insurer had already paid plaintiff the amount for which plaintiff settled the worker's compensation lien and no claim for the foregoing attor- ney's fees and costs was made below, plain- tiff was entitled to no furtl►er recovery from that insurer in this suit SCHOONOVER, C.J., and DANAHY, J., concur. odlw II ".7%MI114 Richard M. WHITLOCK, etc., Appellant, V. Ilienvenida It. CAMBARE, et al., Appellees. No. 90-1286. District Court of Appeal of Florida, Fifth District. April 25, 1991. Rehearing Denied May :31, 1991. Physi61n sought attorney fees after prevailing in medical malpractice action. Tlie Circuit Court, Luke County, Ernest C. Aulls, Jr., J., awarded feces, and patient appealed. The District Court of Appeal, Cowart, J., held that patient's cause of action accrued during effective dates of statute providing for award of fees, and, thus, physician was entitled to fees as pre- vailing party. Affirmed. 1. Costs as 194.22 Cause of action for medical malprac. tice accrues, for purposes of allowing attor- ney fees to prevailing party, on date on which malpractice incident causing injury and giving rise to liability occurred. F.S. 1980, 4 768.595. L Costs e-194.22 Because incident from which patient's injuries arose occurred during; effective pe- riod for statute providing for award of attorney fees to prevailing party in mal- 1 93- 12 �� \�� � «� ��� �\ � .�. y. . . � � \ § \ /� \ \\� /\\� � . . \?�\\� � � �� � � ALLSTATE INSURANCE COMPANY V. PELAYO MAZORRA ... _., u...,,, u,a r nrt.r L(JURI.J UI- It, PI.AL the information alleged eight c tes in the time period July dens. Aw 31-October 1, 19$7, end t11C j`( ty convicled (in four of the►." (Hef<,re SCHWAR'17., C.1„ :ind IIASKIN and FERGUS offenses. On the facts of the present case, lite ►nformation lino sufficiently rinrticuharira±d. See. Stare s,. Awies, 539 Sco.2d 5.15, 536 (Plot. 3d DCA 1099). Defendant seeks rever%a►l oti tutihorily of Knight r. Slow, 506 So.2d If 92 (Fla. 5th DCA 1987). That case, however. supports affirmance here. In Knight, two counts of an information were dismissed, where the time period at issue was four years in one count anti three years in another count. The Knight court found flint the thirst count, which was confined to a three m rilli periml, was au(iiciently particularized. Where three months was af- firmed in Knight, affirmance iie Appropriate far the twr) montit time period at issue in the present case. Tlie defendant also relies on Goble v. State, 535 So.2d 706 (Fla. Sth DCA 1989). hilt that can involved a two and one-half yetir perimxl of finis --not (lit: (eel month period in the present case. See State v. Jones, 539 So.2d at 536.37. For the reasons slated, the convictions and sentences are af- firmed. 'Thu child's statements to the rope Ireetment censer physician fur pliquisos of dialtnnsis and Irestinent would in any ,vent he admissible unrler wrbtectio n 90.1110J(4). Florida Statootes (1999). Jet State v, Ochoa, 176 So.2d NU (11s. 3d DCA t99t). Ittiwsver, subsection 91).803(23) woo applicable insofar as Ilia Slits desired to iniredu¢e the child's statement to the treating personnel that the defendant had had sexual contact with t►or. r r r Criminal taw-Sentrnciitq;-(:iiidctines-.ticnreshecl-Axcesx- Inent of points for slight victim injury innprt►per where state presented no evidence at trial of injury to victim MARK LEWW13, Appppeellant. v. TiiE STATE OF FLOIt1DA. Appetite. 3rd District. Casts No, 91.2804. Opinion fisted June 2. 1"2. An Appeal from ilia Circuit Coutt for Dade County. E1ten J. Morrhonins, halite. ttennett it. fintnuner. Pahlic Daferwter, and Valerie limas, Assistant Milk Defender, Gw "pant. Robert A. Wetterwunh. Altormy Genent. and Richard L. t\tlin, Assistant Attorney General, for appatlee. (Before NES11117. FERGUSON. and GODL'RiCI 1, JJ.) (PER CURiAM.) The defendant. Mark Lewis, appenls fmni a final judgment of conviction and nines -year sentence for rohliery. We affirm the judgment of conviction. I towi-wer, itrion a review of the record and the; state's concession of orror. we: remand for resentencing. Defendant's sentence wait leased upon a Ncon-Mice ( which assessed seven points for slight victim injury. However. the !late presented no evidence at trial of any injury Io (i1e victim. The additional seven points for victim injury raises! defendant's total guidelines !score one level from 120 points to 127 points, remit- ing in the imposition of the nine year sentence, If properly scored. defendant should have: item sentenced to at in(ny seven years imprisonment. See Fernandez v. Stott. 555 So.2d 437, 439 (Fla. 3d DCA IM); Pis. R. Crim. P. 3.701(d)(7). Accordingly, while the judgment of conviction appealed from is affirmed. the cause is remanded for resentencinr within the guidelines. r r r Insurance -Personal injury prolection-Counly co ur( erred in denying PIP •heneftts beccuirw covered expertves bad heest paid thrtulghworker%' compentuHion, even though currier find !teen reinthursed by claimant threurgh se lement and %Wi faction of its lien an claimant's recovery in third-psarty cure-Appeals- Cwcuit court, in reversing county court, wa% ohliguteil to follow decision of district court of appeal which is only FIorid a court of appeal to have detertniued issue ALLSTATE INSURANCE COMPANY. Pathitteer, v. M. AYO htAli lstkA, Respoeakist. 3rd District. Cara No. 92-641. Opin"i Jibed lucre 2. P.M. On Petition for Writ of Can'arsri to the Circuk Coun fur Dada County, Appellate Division. S. Paur Capes. MOMS U. Gnaea snd Giods Cardoso", Judges. Mass A. Mkchsp, for pdkionsr. Deutsch At IIIundssrx; lamas C. Riecte, f.w resi m- t` JJ.) (SCI IWARTZ, Chid Midge.) The Cotarrty emir! denieet Mate p.i.l►. ltsnclit% IMcnusc thre covered exitcttsue hart ixcn 1, through workers" conilvnsation, even though tilt: comp. Carr had, in effect, l r.n reimbursed by the claintant through the Clement vnd t.�-ttiafaction of itr lien on his recovery in a third -pa cam. On appeal, the circuit court reversed on the authority Smith Carolina ht.r. Co. Y. Arnold. 467 So.2d 324 (pia. ; d D( 1985), which, squarely if) the; contrary of the county cuts awarded p.i.p. under identical circumstances. 1'hc P.t.p. can now seeks certiorari review of that revmal. Since it is undisp ed that Arnold involved the identical legal question and that i second district is the only Florida court (►f appeal to have del. mined the: issue:, accord Atlanta Co-cu lty Co. e'. lirdevia, 5 So.2d 213 (Fla. 2d DCA 1991). review denied, 591 So.2d 1 (Fla. 1991); Fortune Inc. Co. I: McGhee, S71 So.2d 546 (Fla. DCA 1990), the circuit court lead no choice but it) follow Arno. Pardo i,. State. _ So.2d (Fla. Case not. 79.319, opinion felt March 26. 1992) 117 FLW S1941. it therefore could not ha departed from the "e►senlial reyttireinews of the: law" in doi No. ile°nce. certiorari might well Ix denied on this ground *lot City t!%Derrfaettl llritch I,. Vroillttnt, 419 Set.2d 624 (hla. 198:). In any Case, Itowrver, this court is of course free io conxie the issue as an original question. Pardo, �So.2d at . 17 FL at S194. On the tuerits, we completely agret with �Irnsohl a therefore make it a part of the law of this district. Set Ce"nenn Safem hir. Cm. 356 So.2d 790 (Fla. 1979). Longman tr. '1't-e elers her. Co., 371 So.2d 533 (Fla. 3d DCA 1979). Certiorari denied. r r Criminal later- Wit nesses-�'Trial court rrrrd in penuitling %I. to call wilnect knowing dial wittiess would invoke Fifth Anirr nient privilege sand refuse in testify -furor huruilins tinder r cumstauces of instant c:ere CEDRIC WMIERSPOON, Appellant, v. T11r STATE•. OF FLORIDA. . pelke. 3rd District. Cara Nit. 91.712. Opinaon filed June 2, 110r2. An Alit (most the Cinytit Cowin kw Dark Ctttuty. l6chanl V. hloriMdius, Judsc. lien tl. Itnrrtwwar. titltlk t)efonder, and Iltaward K. Illuntherr. Assirtant I%tl lliefe"w. row appellart. Ittrlten A. ibNlenwuelh. Atuwney (coeval, and A/arl Duren, Assirtani Anttrnry Genernl, Gw ionwitce. (Before BASKiN. FERGUSON, and JORGfiNSON. JJ.) (PER CURIAM.) Defendant arol als from judgments of conv tion for first degree murder anti attempted first degree murd We agrece that the trial cents erred in perniiiiinh the Statc to C Mr. Cox as a witne;is knowing that lie soviould invoke hi% Vi Anientlnaent privilege and ref tw to testify. Ihrnkerson %,. Stu 347 So. 2d 744 Gala. 41h DCA 1977). 1Ittwever, cinder the: c cutnstances of this ca.-ie, cite; error w-as hamile�ss. Shire v. St,t S79 So. 2d 96 (Fla. 1991); State i. DiGuilia. 491 So. 2d I I (Fla. 1986). Afiirnied. Criminal law -'Trial court erred in graming Inntitt i to disna infunuation %hrre traverse tiled by state and deliio itiou cif pot infunnunt presented by state refuted all tii:ateriul lalhgalWls rarth in mouton to diauiss THE STATIs ilia FLORIDA. Anwilaut, v. ARMANDO VALi)1'S. Appet 3rd District. Casa No. 91-207. lhtinirwr tiled lame 11M. An Appeal is the Ciivuit Cta$A of Dnwk County, Ilaiwy C1fKecalttwn. lwtrc. koWn A. Woo wtoolli. A►ttirwy Cteoenl and kttlecns Mandel. Asaisiatt Aettwttey Gencrol, appellant. Ittwmkl C. 1'athinan, fiw appellee. (Reforu Ni soirr, l-*rRGUSON and GOD I-It1Cl1. JJ.) (GODI:RICII. Judge.) The slate appeals front the: trial cotut onler Cranting the defendant's ruotion to dismiss. We awerw. a remand. 93- 124 Z �