12 Fla. L. Weekly Supp. 517a
Insurance — Personal injury protection — Coverage — Appeal of order granting summary judgment in PIP action brought by plaintiff injured while driving parents’ vehicle against insurer of parents’ vehicle and insurer of vehicle co-owned by plaintiff and former fiance — Where trial court granted summary judgment in favor of insurer of co-owned vehicle, holding that PIP coverage under policy would only apply to plaintiff if she was driving co-owned vehicle or another vehicle insured under that policy because she was not named insured on policy, and same court subsequently entered summary judgment in favor of insurer of parents’ vehicle, determining that plaintiff did have PIP coverage with insurer of co-owned vehicle, factual and legal inconsistencies in two orders precluded entry of summary judgment — Summary judgment in favor of insurer of parents’ vehicle is reversed
AMALIA MAKRYLLOS, Appellant, vs. GEICO GENERAL INSURANCE COMPANY, Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 03-5047AP-88A. UCN 522003AP005047XXXXCV. December 13, 2004. Appeal from Final Judgment, Pinellas County Court, County Judge Myra Scott McNary. Counsel: Troy J. Iannucci, Tarpon Springs, for Appellant. Michael R. Wallace, Tampa, for Appellee.
ORDER AND OPINION
(JOHN A. SCHAEFER, J.) This matter is before the Court on an appeal filed by Amalia Makryllos (Makryllos) from the Amended Final Judgment and Order entered on August 7, 2003, granting Geico General Insurance Company’s (Geico) Motion for Summary Judgment. Having reviewed the parties’ briefs, the record, and pertinent legal authority, this Court hereby reverses the trial court’s ruling as detailed below.
In November of 1998, Makryllos sustained injuries from a car accident in which she was operating her parents’ vehicle, which was insured by Geico. At the time of the accident, Makryllos co-owned a 1989 Mazda with her former fiancé, Constantines Emmanouilidis. The Mazda was insured through Deerbrook Insurance Company (Deerbrook), which provided, inter alia, personal injury protection (PIP) benefits. However, while Makryllos was named as a driver under this policy, she was not listed as a “named insured.”1
After both Deerbrook and Geico denied Makryllos PIP benefits, she initiated this action against both companies. Counsel for Geico then deposed Mickey Graddy, who had served as a national sales manager and product manager with Deerbrook. At one point, Graddy testified that as a listed driver, Makryllas had PIP coverage under the Mazda policy. He also agreed that “monies were charged and monies were paid to afford Amalia Makryllos PIP coverage.”
At another point in the deposition, however, Graddy testified that the PIP coverage would extend to Makryllos only if she was involved in an accident while in the Mazda or another car covered under the policy. Later, Graddy also submitted an errata sheet where he clarified several statements concerning PIP coverage with language to the effect that it would apply only in the covered vehicles.
Both Deerbrook and Geico then filed motions for summary judgment, each contending that Makryllos was not insured under its policy. By order dated July 31, 2000, the trial court granted Deerbrook’s motion, finding that “[a]s a matter of law, Deerbrook Insurance Company is not required to cover Amalia Makryllos pursuant to the Personal Injury Protection provisions of either the Deerbrook policy or of Florida Statute for the subject accident.” In support of its decision, the court noted that the Deerbrook policy clearly and unambiguously named only Makryllos’ fiancé as the insured party. Further, the court agreed with Deerbrook that the PIP coverage under the policy would apply to Makryllos only if she was driving one of the covered vehicles.
Geico attempted to appeal this ruling, but Makryllos declined to join in this appeal. Therefore, this Court dismissed the appeal because it found that Geico satisfied no exceptions to the general rule that one defendant cannot appeal a judgment in favor of a co-defendant. See Geico Gen. Ins. Co. v. Deerbrook Ins. Co., No. 00-5953-CI-88A (Fla. 6th Cir. Ct. Oct. 12, 2000).
Geico then renewed its motion for summary judgment, still contending that Makryllos had PIP coverage with Deerbrook and that therefore, she was not entitled to any coverage with Geico. The trial court earlier had denied Geico’s motion for summary judgment in its July 31, 2000 Order. By Amended Order dated August 7, 2003, the trial court granted Geico’s renewed motion, this time determining as a matter of law that Makryllos did have PIP coverage with Deerbrook.
This Court reviews a final order granting a summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach L.P., 760 So. 2d 126, 130 (Fla. 2000). A party moving for summary judgment must conclusively demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Wills v. Sears, Roebuck & Co., 351 So. 2d 29, 30 (Fla. 1977). If the record reflects the existence of any genuine issue of material fact or raises even the slightest doubt that an issue might exist, that doubt must be resolved in favor of the moving party. Burroughs Corp. v. American Druggists’ Ins. Co., 450 So. 2d 540, 544 (Fla. 2d DCA 1984).
Here, Makryllos argues, inter alia, that the trial court’s entry of summary judgment in Geico’s favor cannot stand because it based upon a finding that she was covered under the Deerbrook policy. However, in granting Deerbrook summary judgment in 2000, the same trial court had held that Deerbrook did not cover Makryllos as a matter of law.
This Court agrees that the existence of both legal and factual inconsistencies in the two orders precludes an entry of summary judgment in this matter. See Turchin v. Garland Roofing, Inc., 450 So. 2d 554 (Fla. 3d DCA 1984) (conflicting orders concerning whether appellant was an agent were “fatally inconsistent, potentially to [appellant] but ultimately to the orders under review”). If indeed, Makryllos is not covered by Deerbrook, then it is possible that Geico would be responsible for extending her PIP coverage.2 However, if the Deerbrook policy does cover Makryllos, then she would not be entitled to any coverage from Geico.
By issuing conflicting rulings in this matter, the trial court clearly indicated that it perceived the facts as leading to more than one reasonable interpretation. Therefore, it erred in granting summary judgment to Geico.3
Therefore, it is
ORDERED AND ADJUDGED that the Amended Final Judgment and Order dated August 7, 2003, is hereby REVERSED, and that this matter is remanded for proceedings consistent with this Order and Opinion.
It is further
ORDERED AND ADJUDGED that Appellant’s Motion for Oral Argument is hereby DENIED.
It is further
ORDERED AND ADJUDGED that Appellant’s Motion for Attorney’s Fees is hereby GRANTED contingent upon her ultimately prevailing in this matter. The trial court shall determine the reasonable amount of such fees.
It is further
ORDERED AND ADJUDGED that Appellee’s Motion for Attorney’s Fees is hereby DENIED.
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1The parties do not dispute that Makryllos did not qualify as an insured under the specific definition set forth in the policy.
2Geico might be required to provide coverage under Pearson v. State Farm Mutual Automobile Insurance Co., 560 So. 2d 416 (Fla. 2d DCA 1990), which held where a vehicle was properly insured but the policy did not cover a co-owner, the co-owner was entitled to PIP coverage from the insurer of the vehicle in which she was injured while a passenger. While Geico attempts to distinguish Pearson on the basis that the co-owner in Pearson had no driver’s license and did not drive, this Court does not find those differences pertinent. As to the differences which may be pertinent, such as the fact that Makryllos drove the vehicle and may have had coverage paid for on her behalf, these are precisely the factual issues that remain unclear in this matter, thus making the entry of summary judgment inappropriate.
3This Court is not unsympathetic to the fact that Geico attempted to appeal the order granting summary judgment to Deerbrook, but was unable to because Makryllos did not join in this appeal. However, if Geico felt that the dismissal of its appeal was in error, its remedy was to file a Petition for Certiorari with the Second District Court of Appeal. Also, regarding Geico’s argument that the “extensive and comprehensive arguments” regarding Deerbrook’s liability presented at the hearings on Geico’s motion for summary judgment justified the lower court’s “cure” of its earlier order in favor of Deerbrook, this Court observes that these same arguments could have been raised at the 2000 hearing.
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