10 Fla. L. Weekly Supp. 656a
Insurance — Personal injury protection — Coverage — Plaintiff injured as driver of insured vehicle who is owner of uninsured vehicle — Where lapse in insurance on plaintiff’s vehicle occurred prior to date vehicle became inoperable, vehicle was not in storage and was not permanently inoperable but simply needed brake repair, and plaintiff drove vehicle after lapse in insurance up to right before accident, plaintiff may not recover PIP benefits
ROSALIND HILLERY, Plaintiff, vs. LYNDON PROPERTY INSURANCE COMPANY, Defendant. County Court, 19th Judicial Circuit in and for St. Lucie County. Case No. 99 137 CC 09. February 28, 2003. Thomas J. Walsh, Jr., Judge. Counsel: Jonathan A. Berkowitz, Vernis & Bowling, North Palm Beach. Glenn M. Black, Ft. Pierce.
ORDER GRANTING FINAL JUDGMENT IN FAVOR OF DEFENDANT
THIS CAUSE came on to be tried before the Court on February 13, 2003, before the Honorable Thomas J. Walsh, Jr., and the Court having heard testimony of the parties, witnesses and on the evidence presented, and being otherwise fully advised in the premises, it is
ORDERED as follows:
1. The Court makes the following findings of fact and conclusions of law:
(a) The Plaintiff was driving her mother’s car and was involved in an automobile accident which occurred on September 5, 1998. The defendant’s insured alleges that they are not liable under the policy in light of the exclusions to benefits recited under F.S. 627.733(1).
(b) The plaintiff was the title owner of a 1988 Lincoln Towncar with a VIN number of 1LNBM82F2Y800262 on September 5, 1998. This car was not involved in the accident.
(c) The subject Lincoln Towncar was registered with the State of Florida with a registration decal number of 905929023 on September 5, 1998.
(d) Although the plaintiff has been unclear as to how long her Lincoln had been inoperable due to a mechanical breakdown, it is clear that the plaintiff’s insurance had previously lapsed for non-payment of premium on the subject vehicle prior to any alleged inoperability and prior to the accident on September 5, 1998. Mrs. Doris Hillary, the owner of the Pontiac involved in the accident testified that she had allowed her daughter, the plaintiff, Rosalind Hillery, to use the car for “one to two months” before the accident. The plaintiff, Rosalind Hillery, did not reside with her mother and is an adult. Rosalind Hillery initially testified that her Lincoln had “stopped working for a couple or two to three months.” She states that the brakes failed in her driveway and she left the car at her residence. Ms. Rosalind Hillery stated she never drove the car after it broke down because “it was not working.” Additionally, the plaintiff has acknowledged that it became uninsured on June 23, 1998. See Answers to Forth (sic) Supplemental Interrogatories dated December 6, 1999. Yet the plaintiff has also stated in Answers to Third Supplemental Interrogatories that the vehicle was driven from November 27, 1997 “to right before the accident.” The evidence has also established that the plaintiff is a convicted felon. This fact, as well as the inconsistency in testimony, has also been considered.
(e) The subject Lincoln Towncar was a “Motor Vehicle” as that term is defined in F.S. 627.732(1).
(f) The subject Lincoln Towncar had not been rendered permanently “inoperable” due to any mechanical failure or defect as of September 5, 1998.
(g) The subject Lincoln Towncar was owned by and licensed and registered in the name of the Plaintiff as of September 5, 1998.
(h) The subject Lincoln Towncar had not been placed in storage as of September 5, 1998.
(i) At the time of the subject incident, the plaintiff was the driver in a vehicle owned by her mother, Doris Hillery, which was insured under a policy of insurance with the defendant, specifically policy #168241.
(j) The plaintiff reinstated insurance coverage on the 1988 Lincoln Towncar with a VIN number of 1LNBM82F2Y800262 on September 22,1998, which defendant argues is evidence of an intent to keep using the motor vehicle. In contrast, plaintiff alleges that she had to insure it in order to sell/trade it for another car because the Lincoln was still inoperable.
(k) The plaintiff presented no testimony from an expert witness confirming or supporting her contention that the subject vehicle was rendered inoperable.
(l) The plaintiff presented no testimony supporting her contention that she “cancelled” her insurance upon the subject vehicle upon the vehicle becoming “inoperable.”
(m) The 1988 Lincoln Towncar was being driven on the roadways of this State by the plaintiff even after her insurance had been allowed to lapse.
2. The sole issue for the Court’s determination was whether the plaintiff was required to maintain the required security of F.S. 627.733 on her Lincoln Towncar. The Court finds that the plaintiff was required, pursuant to F.S. 627.733 to maintain the required security.
3. F.S. 627.733(1) states that “[e]very owner or registrant of a motor vehicle . . . required to be registered and licensed in this state shall maintain security as required by subsection (3) in effect continuously throughout the registration or licensing period” (emphasis added).
4. F.S. 627.733(4) states that “[a]n owner of a motor vehicle with respect to which security is required by this section who fails to have such security in effect at the time of an accident shall have no immunity from tort liability but shall be personally liable for the payment of benefits under F.S. 627.736.”
5. A passenger injured while riding in another’s vehicle may not recover personal injury protection benefits from the insurer of that vehicle if the passenger owns a vehicle which is required to be insured by Florida’s No-fault law. The passenger is deemed to be self-insured and personally liable for personal injury protection benefits. F.S. 627.730 et seq., 627.733(4), 627.736(4)(d)4.a.,b.
6. In the case at bar, the Court finds that the lapse in insurance coverage occurred before the vehicle became inoperable and the vehicle was inoperable simply because the brakes were not functioning properly. Therefore, the plaintiff elected to not re-insure the vehicle and not fix the vehicle, but also elected to continue to own the vehicle.
7. The leading case in this appellate district on this issue is Sherman v. Reserve Insurance Company, 350 So.2d 349 (Fla. App. 4 Dist. 1977). The Sherman case involved a vehicle which was inoperable and in storage at the time of the subject accident. The Sherman Court held that a vehicle which has been rendered inoperable due to mechanical failure or defect is not required to be registered, licensed or to maintain security.
8. In Bedgood v. Hartford Accident and Indemnity Company, 384 So.2d 1363, (Fla. App. 1 Dist. 1980), the Court set forth several factual considerations in determining whether a vehicle is maintained for operation over the public highways and therefore, required to be secured. The Court posed the following questions:
(a) whether the vehicle is inoperable;
(b) the length of time of the inoperability prior to the subject accident. Tapscott v. State Farm Mutual Insurance Company, 330 So.2d 475 (Fla. App. 1. Dist. 1976);
(c) the extent of the vehicle’s inoperability. Malen v. American States Insurance Company, 376 So.2d 473 (Fla. App. 1 Dist. 473).
(d) whether it was placed in storage prior to its restoration to operability. Staley v. Florida Farm Bureau Insurance Company, 328 So.2d 241 (Fla. App. 1 Dist. 1976); and
(e) the subjective element of whether the owner intended to maintain the vehicle on the public streets. Ward v. Florida Farm Bureau Casualty Insurance Company, 375 So.2d 898 (Fla. App. 1 Dist. 1979).
9. Other factors have also been considered in determining whether an owned vehicle is required to be secured including whether the vehicle was currently registered and licensed at the time of the accident and whether the insurance was allowed to lapse due to factors relating to the operability of the vehicle. Fortune Insurance Company v. Oehme, 453 So.2d 920 (Fla. App. 5 Dist. 1984). Also see, Tapscott v. State Farm Mutual Auto Insurance Co., 330 So.2d 475 (1st DCA 1976).
10. Sherman v. Reserve Insurance Co., 350 So.2d 349 (4th DCA 1977) is factually distinguishable from the instant case. In Sherman, the plaintiff allowed his insurance to lapse because his vehicle was in an inoperable condition. Moreover, the plaintiff’s vehicle in Sherman was in storage and was not repaired “until some time after the accident.” The facts of the instant case show that the plaintiff used her Lincoln Towncar on the roadways of this State “to right before the accident” even after her insurance had expired. This convinces the Court that the lapse in insurance was unrelated to the inoperability of the vehicle. Here, the vehicle was not in storage, it needed to have the brakes fixed. Therefore, it was not permanently inoperable, and was not inoperable for any great length of time, but for the plaintiff’s inaction to fix the vehicle since she now had her mother’s car and was not paying her car insurance premium.
Therefore it is
ORDERED AND ADJUDGED
The plaintiff, ROSALIND HILLERY, take nothing by this action and the defendant, LYNDON PROPERTY INSURANCE COMPANY, shall go hence without day. The Court reserves ruling upon defendant’s recovery of costs from plaintiff.
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