11 Fla. L. Weekly Supp. 568b
Insurance — Personal injury protection — Coverage — Non-owner of vehicle — Action by injured child/passenger covered under father’s PIP policy against vehicle owner’s PIP carrier for medical expenses not paid by father’s PIP carrier due to deductible on father’s policy — Vehicle owner’s carrier is not liable to child for deductible — Summary judgment granted in favor of owner’s carrier
REBECCA MILAM, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. SCO-01-7281. April 19, 2004. Jerry Brewer, Judge. Counsel: Steven J. Kirschner, Winter Park, for Plaintiff. Eric Biernacki, Adams, Blackwell & Diaco, P.A., Orlando, for Defendant.
AFFIRMED. 13 Fla. L. Weekly Supp. 526b
ORDER GRANTING DEFENDANT’S SECONDAMENDED MOTION FOR SUMMARY FINAL JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CONCERNING LIABILITY
THIS CAUSE having come before the Court on Defendant’s Second Amended Motion for Summary Final Judgment and Plaintiff’s Motion for Summary Judgment Concerning Liability on the 16th day of February, 2004, and the Court having heard the argument of counsel, and being otherwise fully advised in the premises, finds that the undisputed material facts are as follows:
1. Plaintiff, who was insured with American Premier Insurance Company, filed a PIP suit against Defendant for payment of medical expenses that were not paid due to a $2,000.00 deductible that applied to Plaintiff’s PIP insurance.
2. Specifically, on November 9, 1997, Plaintiff was a passenger in a motor vehicle, owned by Gloria J. Lenahan, a Progressive insured, that was involved in an accident. Plaintiff sustained injuries from said accident.
3. At all times material hereto, Plaintiff, a minor, resided with her father, Randy Dockery, and was covered under her father’s PIP insurance policy. Randy Dockery was insured with American Premier Insurance Company for PIP insurance, which included a $2,000.00 deductible that applied to the insured and all resident relatives.
4. Gloria J. Lenahan was insured under a PIP policy of insurance issued by Defendant that provided PIP benefits in accordance with the requirements of §627.736 of the Florida Statutes. This policy was in full force and effect on the date of the alleged accident and it had a $10,000 limit.
5. According to the “EXCLUSIONS” section, Number 7, under “Part II (A) — PERSONAL INJURY PROTECTION COVERAGE” of Gloria J. Lenahan’s policy of insurance with Progressive, “Coverage under this Part II (A) does not apply to bodily injury: to any person, other than you or any relative, who is entitled to personal injury protection benefits from the owner of a motor vehicle which is not a covered vehicle under this policy, or from the owner’s insurer . . . .” A certified copy of the Progressive insurance policy that covered Gloria J. Lenahan was attached to Defendant’s Second Amended Motion for Summary Final Judgment and the Affidavit of Claim Manager in support thereof.
6. That section of Progressive’s policy mirrors §627.736(4)(d)(4)(b) of the Florida Statutes, which provides that:
“The insurer of the owner of a motor vehicle shall pay personal injury protection benefits for [a]ccidental bodily injury sustained in this state by any other person while occupying the owner’s motor vehicle . . . provided the injured person is not himself or herself [e]ntitled to personal injury benefits from the insurer of the owner or owners of such a motor vehicle.”
(Emphasis added).
7. According to Echevarria v. State Farm Mutual Automobile Insurance, 447 So. 2d 1014, 1015 (3rd DCA 1984) (following, Johnson v. Prudential Property & Casualty Ins. Co., 365 So. 2d 441 (3rd DCA 1978)), “the exclusion of a non-owner of a vehicle from the personal injury protection coverage of the owner’s carrier which arises under Sec. 627.736(4)(d)(4)(b)., Fla. Stat. (1981) when she is “entitled to personal injury benefits from the insurer of the owner . . . of . . . a[nother] motor vehicle” is not affected by the fact that the latter policy is subject to a deductible as provided by Sec. 627.739.” Furthermore, any claim of Plaintiff concerning the impropriety of the deductible itself is properly directed against her own PIP carrier rather than Defendant. See id. (citing, Industrial Fire & Casualty Ins. Co. v. Kwechin, 447 So. 2d 1337 (Fla. 1983)).
Based on the foregoing, the Court finds that:
A. Plaintiff was covered under her father’s PIP coverage with American Premier Insurance Company for the subject accident.
B. The exclusion of Plaintiff, a non-owner of a vehicle, from the PIP coverage of Progressive Express Insurance Company, the owner’s (Gloria J. Lenahan) carrier, when Plaintiff was entitled to PIP benefits from American Premier Insurance Company, the insurer of the owner (Randy Dockery) of another motor vehicle, is not affected by the fact that the American Premier Insurance policy was subject to a $2000.00 deductible.
C. Progressive is not liable to Plaintiff for the $2000.00 deductible and any claim for the $2,000.00 deductible that Plaintiff’s father elected for the named insured and all resident relatives should be directed against Plaintiff’s own PIP carrier, American Premier Insurance Company.
Accordingly, it is hereby
ORDERED and ADJUDGED that Defendant’s Second Amended Motion for Summary Final Judgment is GRANTED; it is further
ORDERED and ADJUDGED that Plaintiff’s Motion for Summary Judgment Concerning Liability is DENIED; it is further ORDERED and ADJUDGED that Plaintiff, REBECCA MILAM, shall take nothing by this action; and Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, shall go hence without day; it is further
ORDERED and ADJUDGED that the Court shall reserve jurisdiction as to Defendant’s taxable costs.
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