10 Fla. L. Weekly Supp. 44c
Insurance — Personal injury protection — Passenger who is owner of an uninsured vehicle not being driven or operated on roads of state at time of accident because of being stored and repaired over several months at auto body shop is not barred from recovering PIP benefits — Amendment to section 320.02(1) removed requirement to register vehicles merely maintained in state although not operated or driven
RODNEY JACKSON, Plaintiff, vs. PROGRESSIVE INSURANCE COMPANY, d/b/a PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. CCO-01-377. September 24, 2002. C. Jeffery Arnold, Judge. Counsel: Joseph C. Brock, Orlando. Sandra Kotur, Orlando.
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
This cause came on for hearing on August 7, 2002, on Plaintiff’s Motion for Summary Judgment. The issue involved in this motion is whether the insurer of the owner of a vehicle may deny personal injury protection (PIP) benefits to an injured passenger under § 627.736(4)(a), Fla. Stat., where the injured passenger was the owner of an uninsured motor vehicle which was not in fact being driven or operated on the roads of this state because it was being stored and repaired over a period of several months at an auto body shop.
On December 16, 1999, Plaintiff, Rodney Jackson, was injured while riding as a passenger in a motor vehicle owned by Jeanette Bushell, who died in the accident. Bushell’s vehicle was insured under a policy with Defendant, Progressive Insurance Company. Jackson seeks recovery of PIP benefits under that policy.
Florida Statute § 627.736(4)(d) provides, essentially, that an injured passenger is entitled to recover PIP benefits from the vehicle owner’s insurer but only if the injured passenger is not the owner of a motor vehicle as to which PIP coverage is otherwise available, or is required. Under § 627.733(1), Fla. Stat., security (PIP) is required for every owner or registrant of a motor vehicle “required to be registered and licensed in this state.” In turn, § 320.02(1), Fla. Stat., requires every owner of a motor vehicle “which is operated or driven on the roads of this state” to register the vehicle in this state.
Progressive denied PIP benefits to Jackson based on the fact that at the time of the accident he was the registered owner of a 1986 Nissan pick-up truck which was uninsured. However, it is undisputed that between October 6, 1999 and December 29, 1999, the Nissan pick-up was not being operated or driven on the roads of this state, but was placed in storage for repairs at Yimmy’s Paint and Body Shop in Kissimmee, Florida. The uncontroverted record shows that Jackson’s Nissan pick-up was involved in a front end collision in September 1999. On October 6, 1999, Jackson brought it into Yimmy’s for repairs. Yimmy’s gave Jackson an estimate of $2,391.12, which included replacing the radiator support, hood, front bumper, fender and grill, as well as fixing dents and repainting the vehicle. Because Jackson could not afford the price of the repairs, he entered into a “lay-away plan” with Yimmy’s whereby the vehicle was placed in storage until the entire amount was paid, with repairs performed gradually as partial payments were made. Jackson made payments of $1,000.00 on October 11, 1999; $400.00 on November 8, 1999; $500.00 on November 26, 1999; and the remaining balance of $491.12 on December 29, 1999, when Jackson picked up the vehicle. Israel “Yimmy” Mendez, the owner of Yimmy’s, testified in his deposition that the Nissan pick-up was not ready until December 26 or 27, 1999, just before Jackson picked it up. He testified that the last work done to the vehicle was to reattach the headlights, bumper assembly and grill.
It is clear from the deposition testimony of Jackson and Mendez that it was the intention of the parties that the Nissan pick-up would not be driven or operated by anyone until the repairs were completed and full payment was received; and that the vehicle was not driven or operated by anyone until December 29,1999 when Jackson made the final payment and retook possession. Accordingly, at the time Jackson was injured, on December 16, 1999, he was not required by law to have the Nissan pick-up registered, nor was he required to have it insured, because he was not currently operating or driving it on the roads of this state. Therefore, Jackson is not barred from recovering PIP benefits and is entitled to summary judgment on that defense. Quanstrom v. Standard Guarantee Insurance Co., 504 So. 2d 1295 (Fla. 5th DCA 1987). See also Fortunate Insurance Co. v. Oehme, 453 So. 2d 920 (Fla. 5th DCA 1984); Sherman v. Reserved Insurance Co., 350 So. 2d 349 (F la. 4th DCA 1977), cert. dismissed, 355 So. 2d 516 (Fla. 1978).
Progressive raises the cases of Tapscott v. State Farm Mutual Auto Insurance Co., 330 So. 2d 475 (Fla. 1st DCA 1976), and Williams v. Leatherby Insurance Co., 338 So. 2d 70 (Fla. 3d DCA 1976), cert. denied, 345 So. 2d 429 (Fla. 1977). As the Fifth District observed in Quanstrom, 504 So. 2d at 1297, Tapscott and Williams were decided under a previous version of § 320.02(1), which required registration not only of motor vehicles “operated or driven upon the highways of this state” but also vehicles “maintained in this state.” An amendment to § 320.02(1) (Chapter 83-318, § 4, Laws of Florida), deleted the registration requirement as to vehicles merely being “maintained in this state” although not operated or driven. Thus, the holdings of Tapscott and Williams are not applicable to this case.
Finally, although the Court does not believe it is essential to it’s holding, the Court would find that Jackson’s Nissan pick-up was inoperable on the date of the accident. The undisputed record shows that the repairs were not completed and that the Nissan pick-up was partially disassembled and had no headlights or front bumper assembly.
At the hearing on this motion, Plaintiff’s counsel acknowledged that the motion does not address other issues in this case and should therefore be treated as a motion for partial summary judgment. Accordingly, it is ORDERED
1. That Plaintiff’s Motion for Summary Judgment is treated as a Motion for Partial Summary Judgment and is GRANTED.
2. The Court grants partial summary judgment to the Plaintiff as to Progressive’s defense that PIP benefits are barred based on Plaintiff’s ownership of an uninsured motor vehicle.
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