The full case caption appears at the
end of this opinion. PER CURIAM. We have for review Allstate Insurance Co. v. Rudnick, 706 So. 2d 389 (Fla.4th DCA 1998), in which the Fourth District certified conflict with the decision inKokotis v. DeMarco, 679 So. 2d 296 (Fla. 5th DCA 1996), review denied, 689 So.2d 1068 (Fla. 1997), on the issue of the definition of the term “payable” found insection 627.736(3), Florida Statutes (1993). We have jurisdiction pursuant to articleV, section 3(b)(4) of the Florida Constitution. Bonita Rudnick was injured in an automobile accident and recovereddamages that included future medical benefits. She settled with the driver of theother car for the policy limits of $10,000 and then sued Allstate, her underinsuredmotorist carrier. The parties stipulated that all offsets would be handled after trial.Although the trial court subtracted the $10,000 recovered from the tortfeasor’sinsurer, the trial court refused Allstate’s request to set off the remaining futuremedical payments benefits (medpay) and personal injury protection (PIP) benefitsfrom the verdict. Allstate appealed and the Fourth District affirmed the trial court’s decision.See Rudnick, 706 So. 2d at 391. The Fourth District held that because therequested setoffs did not represent benefits already paid or actually incurred andowed at the time of trial, the trial court did not err in refusing to set off theremaining personal injury protection benefits and medpay benefits against theverdict. See id. In Rollins v. Pizzarelli, No. SC92080 (Fla. May 4, 2000), we held that undersection 627.736(3), Florida Statutes (1991), an award for future medical damagesshould not be reduced by the amount of a plaintiff’s remaining PIP benefits. Basedon Rollins, we therefore approve the Fourth District’s decision in Rudnick on thisissue. The Fourth District’s opinion also held that the plaintiff’s remaining medpaybenefits could not be set off against damages for future medical expenses that have.not yet been incurred. See Rudnick, 706 So. 2d at 391. This portion of the districtcourt’s opinion conflicts with the opinion of the First District in King v. Burch, 724So. 2d 1237, 1238 (Fla. 1st DCA 1999), over the interpretation given to the term”otherwise available” in section 768.76(1), Florida Statutes (1993), the generalcollateral source statute. Specifically, the district courts are in conflict on thequestion of whether under section 768.76(1) remaining medpay benefits must be setoff from the jury’s verdict for future medical expenses. Compare Rudnick, 706 So.2d at 390-91, and White v. Westlund, 624 So. 2d 1148, 1150 (Fla. 4th DCA 1993),with King, 724 So. 2d at 1238. Because we have jurisdiction in this case on thebasis of a certified conflict, we have the discretion to address this issue. See PKVentures, Inc. v. Raymond James & Assocs., Inc., 690 So. 2d 1296, 1297 n.2 (Fla.1997).
[FOOTNOTE 1] Allstate first maintains that the future medpay benefits are the equivalent ofPIP benefits for section 627.736(3) purposes, and therefore must be set off from theverdict as “payable.” Because we have determined in Rollins that the term “payable” does not include all remaining PIP benefits that are not currently payable,this argument is unavailing. However, even if we were to read “payable” more expansively, we wouldconclude that medpay benefits should not be treated as PIP benefits. In rejectingAllstate’s argument, we need look no further than the actual language of section627.736(3), which is limited by its express terms to “personal injury protectionbenefits.” Further, while PIP is a statutorily required coverage, see section627.736(1), medpay coverage is optional. See � 627.736(4)(f), Fla. Stat. (1993)
[FOOTNOTE 2] ;State Farm Mut. Auto. Ins. Co. v. Swearingen, 590 So. 2d 506, 508 (Fla. 4th DCA1991). In State Farm Mutual Automobile Insurance Co. v. Klinglesmith, 717 So. 2d569, 570 (Fla. 5th DCA 1998), the Fifth District addressed this precise issue:The basis for State Farm’s equating medpaybenefits with PIP benefits, section 627.736(4)(f), actuallydemonstrates that medpay benefits are a collateral source. That statute provides that if PIP medical benefits havepaid 80 percent of an insured’s medical expenses, see section 627.736(1)(a), medpay benefits, “if available in apolicy of motor vehicle insurance,” must be applied to theremaining 20 percent even if PIP benefits have not beenexhausted. Thus, if an insured opts to purchase medpaybenefits to supplement the PIP coverage, the statuterequires that collateral source to be applied first, ratherthan other medical insurance the insured may have. (Citations omitted.) We agree with the Fifth District’s reasoning on this issue.We thus conclude that medpay benefits are not the equivalent of PIP benefitsfor purposes of section 627.736(3). Rather, medpay benefits are a collateral sourceto which the general collateral source statute is applicable. See Klinglesmith, 717So. 2d at 570.
[FOOTNOTE 3] Allstate alternatively argues that the remaining medpay benefits must be setoff from the verdict because they were available within the meaning of section768.76(1), the general collateral source statute. Section 768.76(1)
[FOOTNOTE 4] requires the court to reduce the amount of the plaintiff’s award by the total of all amounts “whichhave been paid for the benefit of the claimant, or which are otherwise available tohim, from all collateral sources; however, there shall be no reduction for collateralsources for which a subrogation or reimbursement right exists.” In King, the First District Court interpreted the “otherwise available”language of section 768.76(1) to mean that those medpay benefits remaining at thetime of judgment should be set off against a verdict for future medical damages. King, 724 So. 2d at 1238. In contrast, the Fourth District in White, interpreted thephrase “otherwise available” in section 768.76(1) to include only those benefits thathave already been paid or that are presently due and owing and not those benefitspotentially payable in the future: [This language] indicates that, in order to havecollateral source benefits set off against an award, thosebenefits must either be already paid (“amounts which havebeen paid”) or presently earned and currently due andowing (“otherwise available to him”). In fact, the term “available” means “Accessible for use: at hand,”connoting a present, rather than a future, application.And, furthermore, the term “collateral source” is definedin subsection (2) as those payments “made ” to theclaimant; nowhere does that definition include paymentsthat may be made in the future. Hence, it follows thatappellant’s interpretation of this section as applying toboth past and future benefits is strained. White, 624 So. 2d at 1153 (some emphasis supplied) (footnote omitted).We recognize that the First District’s and the Fourth District’s differinginterpretations of the term “available” are both reasonable, rendering the statuteambiguous. See Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d452, 455 (Fla. 1992). However, we find that the Fourth District’s interpretation ismore consistent with well-accepted principles of statutory construction. When a statute fails to define a term, courts may resort to a dictionarydefinition to determine the “plain and ordinary meaning” of the statutory language.Green v. State, 604 So. 2d 471, 473 (Fla. 1992). A dictionary defines “available” as”present or ready for immediate use” and “accessible, obtainable.” Webster’s NewCollegiate Dictionary 79 (10th ed. 1996). As the Fourth District reasoned, the useof the word “available” strongly suggests that the Legislature only intended to set offthose benefits that have already been paid or that are presently due and owing.Although the term “available” is not defined by statute, the Legislature diddefine “collateral sources” in the very next subsection as “any payments made to theclaimant.” � 768.76(2)(a) (emphasis supplied). These sections should be readtogether because they are closely related. See Forsythe, 604 So. 2d at 455; see alsoWFTV, Inc. v. Wilken, 675 So. 2d 674, 678 (Fla. 4th DCA 1996) (stating that thesame meaning should be given to the same term within subsections of a statute). The definition of collateral sources found in subsection (2) reinforces the conclusionthat by using the term “available,” the Legislature did not intend to allow a collateralsource setoff for future potential benefits. Instead, the setoff should only be for”payments made.” We find additional support for a more narrow construction of the term”available” in the legislative history of the statute. See Magaw v. State, 537 So. 2d564, 566 (Fla. 1989) (examining legislative history to provide guidance indetermining legislative intent of ambiguous statute); cf. Hawkins v. Ford Motor Co.,748 So. 2d 993 (Fla. 1999) (examining legislative history to support plain meaninggiven to statutory language). Prior to 1993, setoff of collateral sources inautomobile accident cases was governed by section 627.7372, entitled “[c]ollateralsources of indemnity.” � 627.7372, Fla. Stat. (1991). That statute specificallyprovided that “collateral sources paid to the claimant” shall be admitted into evidence and that the jury shall deduct the value of all benefits “received by theclaimant from any collateral source.” � 627.7372(1). There is no question that thisstatute contemplated that only collateral benefits received by the plaintiff should beoffset. See Klinglesmith, 717 So. 2d at 570. In repealing this statute, theLegislature did not express any intent to increase the amount of the setoff from”benefits received” to all benefits that might be received in the future. See generallyFla. H.R. Comm. on Judiciary, CS for HB 975 (1993) Staff Analysis 1-3 (Feb. 23,1993) (on file with comm.). Lastly, this construction is consistent with the canon of statutory constructionproviding that courts must narrowly construe statutes altering common-lawprinciples. As we recently explained in Rollins: [S]tatutory provisions altering common-law principles must benarrowly construed. See Ady v. American Honda Fin. Corp., 675 So.2d 577, 581 (Fla. 1996). Both PIP benefits and medpay benefits arecollateral sources, that is, first-party benefits for which the insured haspaid a separate premium. The common-law rule prohibited both theintroduction of evidence of collateral insurance benefits received, andthe setoff of any collateral source benefits from the damage award.See Gormley v. GTE Prods. Corp., 587 So. 2d 455, 457-59 (Fla.1991). As an alteration of the common law, the statutory provisionsthat allow the introduction into evidence and setoff of collateralinsurance benefits must be narrowly construed. Rollins, slip op. at 13-14. Based on the foregoing, we agree with the Fourth District’s interpretation thatthe term “available” within the meaning of section 768.76(1) includes only thosebenefits that have already been paid or that are presently due and owing, rather thanthose benefits potentially payable in the future. We conclude that the trial court wascorrect in refusing to set off the remaining medpay benefits against the verdict. Accordingly, we approve the Fourth District’s decision in Rudnick based on itsinterpretation of “payable” as found in section 627.736(3) and its interpretation of”available” within the meaning of section 768.76(1). We also approve the FifthDistrict’s opinion in Klinglesmith on this issue, and disapprove Kokotis and King.
[FOOTNOTE 5] It is so ordered. SHAW, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur. HARDING, C.J., concurs in part and dissents in part with an opinion. WELLS, J., concurs in part and dissents in part with an opinion. NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IFFILED, DETERMINED. HARDING, C.J., concurring in part and dissenting in part. To the extent that the majority relies on this Court’s decision in Rollins v.Pizzarelli, No. SC92080 (Fla. May 4, 2000), I dissent based on the reasonsexpressed in my dissenting opinion in that case. However, I agree with the majoritythat medpay benefits are a collateral source to which the general collateral sourcestatute is applicable, and therefore I also agree that medpay benefits are not theequivalent of PIP benefits for the purposes of section 627.736(3), Florida Statutes(1993). Accordingly, I concur that the trial court was correct in refusing to set offthe remaining medpay benefits against the verdict. WELLS, J., concurring in part and dissenting in part. I concur in approving the Fifth District’s decision and reasoning in State FarmMutual Automobile Insurance Co. v. Klinglesmith, 717 So. 2d 569 (Fla. 5th DCA1998).I dissent from the majority’s decision and opinion in all other respects. Iwould approve the decision of the First District in King v. Burch, 724 So. 2d 1237(Fla. 1st DCA 1999). Application for Review of the Decision of the District Court of Appeal – CertifiedDirect Conflict of DecisionsFourth District – Case Nos. 4D96-4065 & 4D97-1448(Palm Beach County) Richard A. Sherman and Rosemary B. Wilder of the Law Offices of Richard A.Sherman, P.A., Fort Lauderdale, Florida; and Lawrence J. Signori, West Palm Beach,Florida,for Petitioner Russell S. Bohn of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach,Florida; and Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach,Florida,for Respondent :::FOOTNOTES:::
FN1 We decline to address the remaining point raised by petitioner on review as to the refusalof the trial court to set off workers’ compensation benefits because the Fourth District found therecord “insufficient to reverse the trial court’s ruling.” Allstate Ins. Co. v. Rudnick, 706 So. 2d389, 391 (Fla. 4th DCA 1998); see Bell v. U.S.B. Acquisition Co., 734 So. 2d 403, 412 (Fla.1999).
FN2 Section 627.736(4)(f) provides in part:Medical payments insurance, if available in a policy of motorvehicle insurance, shall pay the portion of any claim for personalinjury protection medical benefits which is otherwise covered but isnot payable due to the coinsurance provision of paragraph (1)(a),regardless of whether the full amount of personal injury protectioncoverage has been exhausted.
FN3 In State Farm Mutual Automobile Insurance Co. v. Klinglesmith, 717 So. 2d 569, 570(Fla. 5th DCA 1998), the Fifth District held that medpay benefits were a collateral source withinthe meaning of 627.7372, Florida Statutes (1991). Although section 627.7372 has been repealedand does not apply in this case, see ch. 93-245, � 3 at 2439, Laws of Fla., the reasoning inKlinglesmith also applies to section 768.76, Florida Statutes (1993), the general collateral sourcestatute applicable in this case.
FN4 Section 768.76 provides in relevant part: (1) In any action to which this part applies in which liabilityis admitted or is determined by the trier of fact and in whichdamages are awarded to compensate the claimant for lossessustained, the court shall reduce the amount of such award by thetotal of all amounts which have been paid for the benefit of theclaimant, or which are otherwise available to him, from all collateral sources; however, there shall be no reduction for collateral sourcesfor which a subrogation or reimbursement right exists. Suchreduction shall be offset to the extent of any amount which has beenpaid, contributed, or forfeited by, or on behalf of, the claimant ormembers of his immediate family to secure his right to any collateralsource benefit which he is receiving as a result of his injury.(Emphasis supplied.)
FN5 Allstate has also argued that the PIP and medpay benefits were available within themeaning of section 627.727(1), Florida Statutes (1993), pertaining to uninsured motoristcoverage, and should have been set off from the verdict on that basis. Section 627.727(1)provides that uninsured motorist coverageshall not duplicate the benefits available to an insured under . . .personal injury protection benefits . . . and such coverage shallcover the difference, if any, between the sum of such benefits andthe damages sustained, up to the maximum amount of suchcoverage provided under this section. In the present case, the Fourth District concluded that the term “available” within section627.727(1) should be interpreted no differently than in section 768.76(1). Rudnick, 706 So. 2d at391. Neither Klinglesmith, Kokotis v. DeMarco, 679 So. 2d 296 (Fla. 5th DCA 1996), nor Kingv. Burch, 724 So. 2d 1237 (Fla. 1st DCA 1999), addresses the application of this statute. Wedecline to address this issue because the basis for our jurisdiction in this case is the certification ofconflict with Kokotis regarding the definition of the term “payable” in section 627.736(3), andbecause there is no conflict among the decisions on the application of section 627.727(1). SeeBell, 734 So. 2d at 412; Heuss v. State, 687 So. 2d 823, 824 (Fla. 1996).
Allstate Insurance Company v. Rudnick Supreme Court of Florida No. SC92605 ALLSTATE INSURANCE COMPANY, Petitioner, vs. BONITA H. RUDNICK,Respondent. [May 4, 2000]
