12 Fla. L. Weekly Supp. 39b
Insurance — Personal injury protection — Coverage — Claimant who failed to maintain insurance on own vehicle — Inoperable vehicle — Trial court prematurely shifted burden from insurer, who sought summary judgment on grounds that claimant injured as passenger failed to maintain PIP insurance on own vehicle, to medical provider/assignee without first determining that insurer met burden of proving nonexistence of material issues of fact — Moreover, trial court erred in granting summary judgment where record reveals plain disputes of material fact as to inoperability of claimant’s vehicle
ALL CARE HEALTH & WELLNESS, a/a/o JEAN ROBERT FRANCOIS, Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 04-072 AP. L.T. Case No. 02-3592 SP 26. October 26, 2004. This is a consolidated appeal from a summary judgment entered against All Care Health & Wellness by the Honorable Loree Schwartz-Feiler, County Court Judge, Miami-Dade County. Counsel: Stuart B. Yanofsky, for Appellant. Mark A. Gatica, for Appellee.
(Before Leonard E. Glick, Cindy S. Lederman and Manuel A. Crespo, JJ.)
(Per Curiam.) Jean Robert Francois was injured while traveling as passenger in a car. He sought to recover PIP benefits from United Automobile Insurance Company. United Auto moved for summary judgment on the grounds that Francois owned a car and was required by law to carry PIP insurance. Section 627.733(1), Fla. Stat. The failure to maintain PIP insurance under such circumstances would stand as an affirmative defense to recovery by Francois or his assignee, All Care Health and Wellness against United Auto. Section 627.736(4)(d)4.a, Fla. Stat.
In response, All Care Health and Wellness submitted an affidavit of Francois which had been originally taken by United Auto. That affidavit purports to show that Francois’ vehicle was inoperable and therefore required no insurance. Quanstrom v. Standard Guar. Ins. Co. 504 So.2d 1295, 1297 (Fla. 5th DCA1987).
On a motion for summary judgment, the court looks only to competent evidence. Daeda v. Blue Cross & Blue Shield of Florida, Inc., 698 So.2d 617 (Fla. 2d DCA 1997). Such evidence must be viewed in the light most favorable to the non-movant, All Care Health & Wellness. Sierra v. Shevin, 767 So.2d 524 (Fla. 3d DCA 2000). If the evidence shows there is no genuine issue as to any material fact and that United Auto was entitled to a judgment as a matter of law, summary judgment is proper. Fla. R. Civ. P. 1.510(c). However, if the “slightest doubt” exists, summary judgment may not be granted. Sierra, 767 So.2d at 525.
Here, the trial court prematurely shifted the burden from United Auto to All Care. Specifically, the court asserted that after United Auto filed its motion for summary judgment it became All Care’s “burden to file something in opposition to it.” This is contrary to law. Until the court determines that United Automobile has first met its burden of proving the nonexistence of material issues of fact, All Care has no burden to file anything whatsoever. Castaneda v. General Building Serv. Corp., Inc., 746 So. 2d 491 (Fla. 3d DCA 1999).
In addition to the above, the record reveals plain disputes of material fact. As noted by the court, Francois, the underlying claimant:
acknowledges in his own sworn statement that he has a car, but it just isn’t running. What does that mean, that it blew a gasket, that he blew a tire? It doesn’t mean that he isn’t required to carry insurance, or that he is not carrying insurance.”
Such discussion provides but one example of unresolved, material issues of fact. Faced with such factual disputes, and required to draw every reasonable inference in favor of All Care and against United Auto the trial court could not grant summary judgment.
The judgment is REVERSED. All Care’s motion for attorney’s fees is GRANTED on the condition that it ultimately prevails in this action. All remaining motions are DENIED. (Leonard E. Glick, Cindy S. Lederman and Manuel A. Crespo, JJ. CONCUR.)
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