PREFACE. Appeal certified direct conflict with the decision of the Fifth District Court of Appeal in Kokotis v.

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1 PREFACE In Pizzarelli v. Rollins, 704 So.2d 630 (Fla. 4th DCA 1997), the Fourth District Court of Appeal certified direct conflict with the decision of the Fifth District Court of Appeal in Kokotis v. DeMarco, 679 So. 2d 296 (Fla. 5th DCA 1996), rev. denied, 689 So. 2d 1068 (Fla. 1997). Here, plaintiffs/respondents, MICHAEL PIZZARELLI and MICHELE PIZZARELLI, as parents and natural guardians of CARLENE PIZZARELLI, (a minor), will be referred to as plaintiffs or by their proper names, and defendants/petitioners, JANE ROLLINS and DASHA MARIE CATES, will be referred to as defendants or by their proper names. The following symbol is used: R - Record on Appeal STATEMENT OF CASE AND FACTS Plaintiffs generally agree with defendants' statement of the case and facts. However, plaintiffs wish to correct a significant misapprehension of the facts as set forth in Allstate Insurance Company's Amicus Curiae Brief. On pages 3, 8 and 10 of that brief, Allstate erroneously advises this court that the jury found that young CARLENE PIZZARELLI did not sustain a permanent injury. This is patently untrue as the verdict form reveals (R 392, Question 6). -1-

2 POINT ON APPEAL (As stated by the Fourth District Court of Appeal) WHETHER THE TERM "PAID OR PAYABLE" IN SECTION (3), FLORIDA STATUTES (SUPP. 1996), SHOULD BE DEFINED AS "THAT WHICH HAS BEEN PAID, OR PRESENTLY EARNED AND CURRENTLY OWING" SO THAT THE STATUTORY LANGUAGE OF SECTION WILL NOT BE INTERPRETED TO PERMIT ANY REMAINING PERSONAL INJURY PROTECTION BENEFITS TO BE USED FOR SET OFFS FOR FUTURE COLLATERAL SOURCES. SUMMARY OF ARGUMENT The conflict between the two opinions in this case arises over the meaning of the word "payable." The most logical definition of payable finds its support from the Fourth District, Black's Law Dictionary, and this court in a 1917 Advisory Opinion to the Governor. Payable means capable of being paid, suitable to be paid and/or justly due. As applied in the context of medical bills, payable means those bills which have been incurred by the plaintiff, but which remain unprocessed and unpaid by the carrier at the time of trial. They are owed but unpaid. They are capable of being paid. They are justly due. According to Kokotis, however, "payable" as found in Section (3), Florida Statutes (Supp. 1996) means medical benefits which could be incurred at any point in time from the date of the accident until the victim's demise. If the party is eleven years old for example, (as the plaintiff in this case was at the time of the accident), under Kokotis, her PIP benefits should be available until she takes her last breath, which could easily be eighty years from now. -2-

3 In comparing the two different definitions set forth by the two different district courts, this court should note that the Fifth District in Kokotis boldly proclaimed its definition without using a dictionary, prior case law or any support whatsoever to guide it. Conversely, the Fourth District's opinion in Pizzarelli was based on the Black's Law Dictionary, cases from analogous contexts, and common sense. This court should embrace the Fourth District's definition of payable and affirm its decision below. ARGUMENT WHETHER THE TERM "PAID OR PAYABLE" IN SECTION (3), FLORIDA STATUTES (SUPP. 1996), SHOULD BE DEFINED AS "THAT WHICH HAS BEEN PAID, OR PRESENTLY EARNED AND CURRENTLY OWING" SO THAT THE STATUTORY LANGUAGE OF SECTION WILL NOT BE INTERPRETED TO PERMIT ANY REMAINING PERSONAL INJURY PROTECTION BENEFITS TO BE USED FOR SET OFFS FOR FUTURE COLLATERAL SOURCES. Contrary to the suggestion made in both Initial Briefs, the decision facing this court is far more simple than defendants would have this court believe. This is not a case involving intricate statutory interpretation of Florida's No Fault Law. Nor is it a case where plaintiffs are trying to extract an impermissible double recovery. Instead, this case simply turns upon the meaning of the word "payable" as used in Section (3), Florida Statutes (Supp. 1996). This court has already defined the word "payable." See In Re Advisory Opinion to the Governor, 77 So. 102, 103 (Fla. 1917). In answering a question for Governor Sidney J. Catts regarding the definition of payable as it applied to the salary of state officers, this court defined -3-

4 payable as follows: The word `payable' is a descriptive word, defined as meaning `capable of being paid; suitable to be paid; admitting or demanding payment; justly due; legally enforceable.' (Citations ommitted). Finding that definition proper and acceptable, the editors of Black's Law Dictionary extracted those words, thereby deeming this court's definition of payable as the definition. Black's Law Dictionary, 1285 (4th Ed. 1968). That same definition was applied by the Fourth District in interpreting the meaning of the word "payable" below. Pizzarelli v. Rollins, 704 So. 2d 630, 632 (Fla. 4th DCA 1997). 1 This court has held that if necessary, the plain and ordinary meaning of a word in a statute may be ascertained by reference to a dictionary. Green v. State, 604 So. 2d 471, 473 (Fla. 1992). All courts of this state have relied upon dictionaries to ascertain the meaning of words used in statutes. See, e.g., WFTV, Inc. v. Wilken, 675 So. 2d 674 (Fla. 4th DCA 1996) (In interpreting the word "instrument" in Section 28.24, Florida Statutes, the court held that it was permissible to look to Black's Law Dictionary for assistance); Hernando County v. Florida Public Service Com'n, 685 So. 2d 48, 52 (Fla. 1st DCA 1996) (The cardinal rule of statutory construction is that courts will give a statute its plain and ordinary meaning, which may be ascertained by reference to a dictionary). Still, the Fifth District in Kokotis refused to be guided by a dictionary. It refused to be guided 1 The Fourth District also recently applied the same definition and reasoning in Allstate Insurance Co. v. Rudnick, 23 Fla. L. Weekly D497 (Fla. 4th DCA February 18, 1998). -4-

5 by prior case law. Instead, with one stroke of its judicial pen, governed by nothing but its own feelings and instincts, the Kokotis court wrote: We find that "payable" as used in this statute includes expenses which have not accrued but which will result from the covered injury. The cases DeMarco cites which relate to collateral source allocations simply do not apply to this case. Kokotis, 679 So. 2d at 297. The only attempt the Fifth District made to justify its unsupported yet far reaching definition of "payable," was by drawing an inapposite analogy to this court's decision in Hannah v. Newkirk, 675 So. 2d 112 (Fla. 1996). In Hannah v. Newkirk, this court allowed the tortfeasor a set off from the jury's verdict for the plaintiff's chosen PIP deductible. Choosing a PIP deductible is each individual's own economic decision, and it is presumed that purchasers of PIP do so with the knowledge of the consequences, including the possibility of incomplete coverage. Id. at 114. It is a decision completely within the discretion and control of the insured. Because there is a direct economic benefit to the insured who chooses a lower PIP deductible, he or she must bear the consequences of that benefit. However, the reasonableness, necessity, and relatedness of medical treatment five to ten to fifty years after an accident is not something within the plaintiff's control. For that, the plaintiff must rely on the proverbial overworked insurance adjuster, who is rewarded for efforts at minimizing costs and treatment. Although the PIP deductible is a question squarely within the -5-

6 discretion of the insured, the need for treatment several years post-accident is a decision the insurance company has the power to make. To illustrate how far awry the Kokotis decision becomes when taken to its logical conclusion, plaintiffs provide the following hypothetical: Carlene Pizzarelli was eleven years old when she was permanently injured by the defendant driver. Assume that at age 50, she will experience neck or back problems which her physician will attribute to her childhood automobile accident. Thirty-three years from now, in the year 2031, Carlene will have to advise her doctor to bill her parents' insurance company pursuant to a 1992 PIP policy. If the carrier happens to still be in business, it will have to procure the file on microfilm or some other equivalent medium. That assumption requires the quantum leap of faith that the file still exists. By the time the carrier makes the connection that a Fifth District case decided in 1996 mandated that Carlene's remaining PIP would be available for medical bills necessitated by her 1992 accident -- from the date of the accident for the rest of her life - - it will most likely have already long denied any reasonable relationship between Carlene's current medical bills and her automobile accident. Imagine the incredulity of a subsequent trial judge faced with a motion to dismiss on the lawsuit plaintiff will be forced to file for the denial of PIP benefits thirty-nine years post-accident. Under the Kokotis definition of "payable" in the PIP statute, this ridiculous scenario would result because the remaining PIP is considered available for all eternity. If this court wishes to seek guidance beyond the Black's Law Dictionary definition of "payable," there are numerous other contexts which buttress the Fourth District's definition. First, as this court is well familiar, Florida courts have consistently rejected set offs for future collateral -6-

7 sources. See, e.g., White v. Westlund, 624 So. 2d 1148, 1153 (Fla. 4th DCA 1993), rev. dismissed, 640 So. 2d 1109 (Fla. 1994), (citing Jeep Corp. v. Walker, 528 So. 2d 1203, 1206 (Fla. 4th DCA 1988)(Finding error in the trial court's set off for future benefits, holding instead that only past benefits can be set off against an award); Swamy v. Hodges, 583 So. 2d 1095, (Fla. 1st DCA 1991) (Affirming trial court's refusal to set off future social security benefits) rev. denied, 593 So. 2d 1053 (Fla. 1991); Measom v. Rainbow Connection Preschool, Inc., 568 So. 2d 123 (Fla. 5th DCA 1990) (Interpreting Section to bar set off of collateral source benefits by reasoning that "[C]ollateral source benefits are not `otherwise available'... if such benefits are dependent upon future employment. The statute does not purport to benefit the tortfeasors by deducting collateral sources for which the insured may be entitled in the future.") (Emphasis added). Another example to suggest that "payable" means accrued, but unpaid (not payable for all eternity) comes from a review of question 14 of the Supreme Court approved standard form interrogatories to the plaintiff in a negligence case which asks the following: 14. Has anything been paid or is anything payable from any third party for the damages listed in your answers to these interrogatories? If so, state the amounts paid or payable, the name and business address of the person or entity who paid or owes said amounts, and which of those third parties have or claim a right to subrogation? (Emphasis added). Clearly, this court's definition of "payable" as used here, asks the plaintiff to indicate bills he or she has incurred, regardless of whether those bills have actually been paid. The interrogatory then goes on to ask who "owes" on this accrued benefit. The interrogatory does not ask the plaintiff to delineate all those "payable" medical bills which plaintiff expects to sustain in the future or how far -7-

8 into the future he or she imagines the need for treatment will extend. Such a question, suggested by the Kokotis interpretation of "payable," would be ridiculous. Instead "payable" in the form interrogatory clearly means for bills which have accrued, but remain unpaid. This rationale is also in keeping with the historical theory of a plaintiffs "day in court," as well as with Florida Standard Jury Instruction 6.10 on the reduction of damages to present value. A plaintiff is only entitled to try his or her case once. Generally, throughout a plaintiff's closing argument, jurors are constantly reminded that a plaintiff has only one opportunity to recover damages for injuries suffered due to someone else's negligence. See, e.g., Roberts v. Rockwell Intern Corp., 462 So. 2d 502, 505 (Fla. 2d DCA 1984). This legal truth is also buttressed by the concepts of collateral estoppel and res judicata. Therefore, the jurors must award an amount in present day figures which will sufficiently cover future damages over the entire period for which the jury believes such damages will be necessary. As set forth in Florida Standard Jury Instruction 6.10: The present money value of future economic damages is the sum of money needed now, which, together with what that someone will earn in the future, will compensate (claimant) for these losses as they are actually experienced in future years. (Emphasis added). The theory, of course, is that the jury needs to award a plaintiff an amount, which when invested, will keep pace with future inflation, increasing medical costs, etc. See Seaboard Coastline R. Co. v. Burdi, 427 So. 2d 1048, 1050 (Fla. 3d DCA), rev. dismissed, 431 So. 2d 988 (Fla. 1983) It is the jury's responsibility to compute that figure, and the plaintiff's responsibility to insure it is available for his or her future medical expenses. -8-

9 Under the Kokotis rationale, however, the amount of future damages is set off from a fixed amount of PIP benefits. There is no allowance for market realities when the jury's verdict, computed in present money value to compensate a plaintiff for future expenses, is reduced by a fixed amount which will not grow over time and may not in reality be available for plaintiff's future medical use. To illustrate this point, even if the cost of an appointment with plaintiff's physician five years from now costs $300 instead of $100, under Kokotis, the same $ left under Carlene Pizzarelli's PIP policy will be the amount available to pay the bill. The value of the $ will remain constant and fixed with no consideration for inflation, increased medical costs, etc. This absurd result should not be the law in this state. Neither defendants' nor Allstate's brief suggests a basis for their definition of the word "payable." Neither provides this court with the benefit of any context or authority for their illogical definition. Defendants argue that the Fourth District's definition of "payable" omits benefits which have been incurred but not sent in for processing by the PIP carrier. (See Petitioner's Brief on the Merits at p. 10). That is simply untrue. Under the definition of "presently earned and currently due and owing," any benefits for any treatment that plaintiff has undergone before trial are considered payable. The only benefits excluded from the Fourth District's definition are those incurred subsequent to the day the jury returns its verdict. In Kokotis, the Fifth District apparently failed to appreciate the significant implications its unsupported definition would have on future litigants' rights. Without any authority or support, this court cannot allow the Kokotis definition of payable to govern the law in this state. To do so would -9-

10 prevent hundreds of thousands of injured victims from reclaiming damages owed to them. Further, the fear of double recovery in this setting is unfounded. The public policy concern actually triggered by Kokotis is the fear that plaintiffs will be undercompensated. CONCLUSION This court should adopt the Fourth District's opinion in Pizzarelli v. Rollins, 704 So. 2d 630 (Fla. 4th DCA 1997). The definition of "payable" as set forth in Section (3), Florida Statutes, (Supp. 1996) should be defined as "that which has been paid, or presently earned and currently owing," and courts should be prohibited from setting off remaining personal injury protection benefits from the jury's verdict. Julie H. Littky-Rubin, of LYTAL, REITER, CLARK, FOUNTAIN & WILLIAMS Post Office Box 4056 West Palm Beach, FL (561) (561) (facsimile) By: JULIE H. LITTKY-RUBIN -10-

11 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail this 10th day of March, 1998 to: DOCK A. BLANCHARD, ESQ. GARRISON M. DUNDAS, ESQ. BLANCHARD, MERRIAM, ADEL BRENNAN, HAYSKAR, JEFFERSON, & KIRKLAND, P.A. WALKER & SCHWERER, P.A. P. O. Box 1869 P. O. Box 3779 Ocala, FL Ft. Pierce, FL JAMES K. CLARK, ESQ. SHARON LEE STEDMAN, ESQ. Suntrust International Center SHARON LEE STEDMAN, P.A. One S.E. Third Ave, Ste E. Hillcrest St, Ste 108 Miami, FL Orlando, FL Julie H. Littky-Rubin, of LYTAL, REITER, CLARK, FOUNTAIN & WILLIAMS Post Office Box 4056 West Palm Beach, FL (561) (561) (facsimile) Attorneys for Respondent By: JULIE H. LITTKY-RUBIN Florida Bar #