HAYDEE DIAZ, APPELLANT,
v.
SOUTH CAROLINA INSURANCE COMPANY, A FOREIGN CORPORATION, APPELLEE

Fla. 3d DCA | 1981-04-21
No. 80-1592
Before DANIEL S. PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
397 So. 2d 386 Florida District Court of Appeal, Third District (1981)

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Synopsis

Haydee Diaz sought to recover 30% of her lost wages from her automobile liability insurance carrier under personal injury protection (PIP) provisions, claiming she was entitled to 100% wage replacement after receiving 70% through workers' compensation. The court held that PIP benefits are limited to 60% of wage loss and that when workers' compensation benefits equal or exceed that percentage, no additional PIP benefits are owed.


Holding

Where weekly compensation under workers' compensation law equals or exceeds 60% of the weekly wage, no PIP benefits are payable. PIP benefits are limited to 60% of wage loss, and workers' compensation benefits must be credited against PIP benefits, so the claimant is not entitled to 100% total compensation.


Headnotes

[1] Personal injury protection (PIP) benefits are limited to 60 percent of the wage loss.

[2] Workers' compensation benefits received shall be credited against personal injury protection (PIP) benefits.

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Key Quotes

“PIP benefits are limited to 60 percent of the wage loss. Section 627.736(4), Florida Statutes (1979), provides that PIP benefits ". . . shall be primary, except that benefits received under any worker's compensation law or Medicaid ... shall be credited against ..." PIP benefits.”

Establishes the statutory framework limiting PIP to 60% of wage loss with a credit for workers' compensation benefits

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Facts & Procedural History

Plaintiff Haydee Diaz received workers' compensation benefits from her employer, Metropolitan Dade County, equal to 70% of her average weekly wage. Sh…

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Opinion of the Court
PEARSON, TILLMAN (Ret.), Associate Judge.

PEARSON, TILLMAN (Ret.), Associate Judge.

Plaintiff Haydee Diaz is the recipient of workers’ compensation benefits from her employer, Metropolitan Dade County, in an amount equal to 70% of her average weekly wage. Her action below sought recovery of the remaining 30% of her average weekly wage from her automobile liability insurance carrier, defendant South Carolina Insurance Company, on the basis of Section 627.736(4), Florida Statutes (1979), under the personal injury protection (PIP) provisions of her policy. Following a summary final judgment for the insurance company, plaintiff Diaz appealed.

With no contention of any genuine issue of material fact being raised, the only issue before us is one of law, concerning whether the defendant PIP carrier was required to pay in benefits the difference between the plaintiff’s average weekly wage and weekly workers’ compensation award so that the claimant would be 100 percent compensated for her loss of wages.

Section 627.736(l)(b), Florida Statutes (1979), as amended by Chapter 77-468, Section 33, Laws of Florida, is applicable to the facts of this case. It provides that PIP benefits are limited to 60 percent of the wage loss. Section 627.736(4), Florida Statutes (1979), provides that PIP benefits “. . . shall be primary, except that benefits received under any worker’s compensation law or Medicaid ... shall be credited against ...” PIP benefits. We hold that where the weekly compensation under the worker’s compensation law equals or exceeds 60 percent of the weekly wage, no PIP benefits are payable.

The plaintiff relies upon Comeau v. Safeco Insurance Company of America, 356 So. 2d 790 (Fla.1978), and Charter Oak Fire Insurance Company v. Regalado, 339 So. 2d 277 (Fla.3d DCA 1976), for a contrary result. We believe that Comeau does not support a recovery of 100 percent of the loss, inasmuch as that case held that the total aggregate limit of PIP benefits payable was not reduced by the amount of workers’ compensation benefits received and that the PIP carrier was required to supplement workers’ compensation benefits until it had paid the limit of liability under its policy. Here, the limit of liability was for 60 percent of the wage loss. Charter Oak held that PIP benefits were not limited to exclude all payments for medically-related expenses payable under workers’ com pensation. The opinion did not deal with the percentage liability of the PIP carrier for wage loss.

Accordingly, the judgment of the trial court, holding that PIP coverage is limited to 60 percent of the wage loss, is affirmed.

Affirmed.


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