12 Fla. L. Weekly Supp. 240a
Insurance — Personal injury protection — Coverage — Resident relative of owner of another vehicle — Evidence — Accident report privilege — Regardless of whether plaintiff’s address as recorded on police accident report was taken from her driver’s license or verbally given to investigating officer by plaintiff, portion of report containing address is admissible in proceeding on plaintiff’s motion for partial summary judgment as to residency — No merit to argument that report, which is self-authenticating, is inadmissible as unverified document that was not authenticated — Questions certified
PROFESSIONAL MEDICAL GROUP, INC., a/a/o JESSICA MACHIN, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 02-14283-SP-25 (01). December 10, 2004. Mark King Leban, Judge. Counsel: Armando A. Brana, Coral Gables. Kertch Conze, Coral Gables.
ORDER DENYING PLAINTIFF’S MOTION FOR REHEARING AND CERTIFYING QUESTIONS OF GREAT PUBLIC IMPORTANCE
THIS CAUSE having come before the Court on Plaintiff’s Motion for Rehearing of this Court’s July 20, 2004, order denying plaintiff’s motion for partial summary judgment with respect to defendant’s first affirmative defense dealing with the owner of the motor vehicle, and the Court having considered all the pleadings, memoranda of law, argument of counsel, and being otherwise duly advised in the premises, hereby makes the following findings and conclusions:
FACTUAL STATEMENT
On or about June 2, 2002, Jessica Machin was involved in an automobile accident in Miami-Dade County, Florida. As a result of the accident, Ms. Machin suffered personal injuries and necessitated treatment by the plaintiff provider, Professional Medical Group, Inc., to which she assigned her benefits. The plaintiff subsequently submitted its claim for the reasonable and necessary medical expenses incurred as a proximate result of Ms. Machin’s automobile accident. Thereafter, when defendant United Automobile Insurance Company failed to pay any of plaintiff’s invoices for services provided Ms. Machin, plaintiff filed this lawsuit.
Plaintiff is the granddaughter of defendant’s insured, Maria Wong. During the normal course of discovery in this cause, Ms. Machin testified at her deposition that on the date of the accident, June 2, 2002, she resided with her grandmother, defendant’s insured, Maria Wong at 1620 SW 97th Avenue, Miami, Florida 33165. Deposition of Jessica Machin of February 17, 2004, page 27, line 25 thru page 28, lines 1-11. Ms. Machin further testified that she never owned a motor vehicle where security would be required under Florida law.
Ms. Machin, in addition to her deposition testimony, submitted an affidavit in this cause again averring that “[a]t the time of the accident, I resided with my grandmother, Maria Wong at 1620 SW 97th Avenue, Miami, Florida 33165.” Moreover, Ms. Machin’s affidavit further states that she has “never owned a motor vehicle.”
Maria Wong, Ms. Machin’s grandmother, also submitted her affidavit stating that she is defendant’s insured and that “[o]n June 2, 2002, my granddaughter Jessica Machin was residing in my household at 1620 SW 97th Avenue, Miami, Florida.”
As its first affirmative defense, defendant asserted that pursuant to section 627.736(4)(d)4, Florida Statutes, the insurer of the owner of a motor vehicle shall pay personal injury protection benefits for accidental bodily injury sustained in this state by any other person by occupying the owner’s motor vehicle “provided the injured person is not himself or herself the owner of a motor vehicle with respect to which security is require[d] under ss627.730-627.7405. Defendant states that [Ms. Machin] is the owner of another vehicle in which security is required. Therefore, Defendant is not liable for the subject medical bills.”
On April 2, 2004, plaintiff filed its Motion for Partial Summary Judgment as to Defendant’s First Affirmative Offense Dealing With Owner of a Motor Vehicle.” Plaintiff referred to Ms. Machin’s deposition testimony, her affidavit, and her grandmother’s affidavit, all of which asserted under oath that Ms. Machin, on the date of the accident, was a resident relative of defendant’s insured, Maria Wong. Plaintiff thus asserted, “[a]ccordingly, there is no genuine issue, that Jessica Machin was a resident relative of Maria Wong’s household on the day of the accident,” thus entitling plaintiff to summary judgment as to defendant’s first affirmative defense of no coverage.
In response, defendant filed the affidavit of its litigation adjuster, Clara Noda, which states, in material part: “The claimant Jessica Machin is not eligible for coverage under the subject policy of insurance due to the fact that she was a resident relative of the owner of another motor vehicle at the time of the accident, and therefore must seek coverage under that policy of insurance.” In support, defendant attached to Ms. Noda’s affidavit the Florida Traffic Crash Report, hereinafter, Police Report, which, in its Section 1, lists the address of the “driver” of the subject accident, Jessica Machin as 13487 SW 29th Street, Miami, Florida 33176.1
On July 20, 2004, a hearing was held before this Court on plaintiff’s motion for partial summary judgment on the coverage issue, and the parties presented the above-referenced deposition, affidavits, and police report, as well as legal argument on whether a police report is admissible for purposes of creating material issues of fact on summary judgment. At the conclusion of the hearing, the Court denied plaintiff’s motion for partial summary judgment and entered its written order thereon which states in material part:
Denied, based on the Arriba case, as the Defendant has presented to the Court the police report which states that Ms. Machin resides at a different address than her grandmother, Maria Wong.
On July 29, 2004, plaintiff timely filed its Motion for Rehearing, in which, as it did at the July 20, 2004, hearing, plaintiff again asserts that this Court erroneously considered the police report in this summary judgment proceeding. For the reasons that follow, this Court once again concludes that there is a genuine issue of material fact precluding summary judgment, and that the Court properly considered the police report at the summary judgment hearing.
Defendant correctly frames the issue on rehearing as “whether or not this Court correctly allowed the Defendant to use[ ] the police report as admissible evidence to defeat Plaintiff’s Motion for Partial Summary Judgment as to Residency which was supported with both deposition testimonies and affidavits.” See Motion for Rehearing at paragraph 7.
Plaintiff again correctly observes that the Eleventh Circuit, sitting in its appellate capacity in United Automobile Insurance Company v. Arriba, No. 03-069AP (Fla. 11th Cir. Ct. March 9, 2004) [11 Fla. L. Weekly Supp. 404b], held that a police report was admissible to create a question of fact so as to preclude summary judgment. However, plaintiff seeks to distinguish Arriba from the case at bar. In Arriba, the police report did not list the allegedly injured plaintiff as a passenger in the car that his wife was driving at the time of the accident, and the trial judge concluded that the insurer, United Auto, failed to set forth any evidence creating issues of material fact, granting summary judgment with respect to whether there was any medical opinion stating that the medical treatment was not reasonable, related, and necessary; the trial judge, however, failed to address whether the accident report (failing to list the plaintiff as a passenger in the vehicle) created any issue of material fact. United Auto filed a motion for rehearing which was denied. On appeal, the Appellate Division reversed the order granting summary judgment holding that the accident report privilege, section 316.066(4), Florida Statutes, did not render the police report inadmissible since the police report was written, not by the person involved in the accident, but by the investigating officer, and that the police report did not reflect statements made by the plaintiff.
In the case at bar, plaintiff argues that Arriba is inapplicable since there the police officer’s observations as to the occupants of the vehicle did not constitute statements made by persons involved in the accident, whereas in the case at bar, “any addresses written on the police report were provided directly by Jessica Machin,” and are thus “direct statement. . . protected under” the accident report privilege. See Motion for Rehearing at paragraph 12. Further, “the police officer could have only determined Jessica Machin’s alleged residency by statements made to him or her at the scene of the accident by Jessica Machin, herself.” Id. at paragraph 13. Thus, plaintiff argues that the privilege applies and this Court should not have considered the police report in finding a genuine issue of material fact as to the residency-coverage issue.
CONCLUSIONS OF LAW
Florida’s “accident report privilege” appears in section 316.066(4), Florida Statutes (2003), as follows:
Except as specified in this section each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. No such report or statement shall be used as evidence in any trial, civil or criminal.
In construing the privilege, the Florida Supreme Court held in Brackin v. Boles, 452 So.2d 540, 544 (Fla. 1984):
We clearly and emphatically hold that the purpose of the statute is to clothe with statutory immunity only such statements and communications as the driver, owner, or occupant of a vehicle is compelled to make in order to comply with his or her statutory duty. . . .
Moreover, “[i]ts purpose is to promote a truthful reporting of facts surrounding the accident, while relieving persons involved from incrimination for their compliance with the law.” Vedner v. State, 849 So.2d 1207, 1211 (Fla. 5th DCA 2003) (emphasis added). Further, the statutory privilege “must be strictly construed ‘in the sense that no situation should be held within its operation to which the Legislature did not clearly intend to accord the privilege.’ ” State v. Edge, 397 So.2d 939, 942 (Fla. 5th DCA), rev. denied, 407 So.2d 1103 (Fla. 1981) (citation omitted).
Given this restrictive view of the scope of the accident report privilege, it appears to this Court that there is no merit to plaintiff’s argument that “the police officer could have only determined Jessica Machin’s alleged residency by statements made to him or her at the scene of the accident by Jessica Machin, herself.” Motion for Rehearing at paragraph 13. First, this is not necessarily so, since Ms. Machin’s address in all likelihood simply appeared on her driver’s license, the production of which at the scene of the accident, does not constitute “any statement made by such person to a law enforcement officer. . .”. Section 316.066(4), Florida Statutes. Even if so, the provision of one’s address simply does not constitute “the facts surrounding the accident.” Vedner, supra at 1211, to which the accident report is directed. Ms. Machin’s address does not appear in the narrative portion of the police report here at issue. This Court, thus concludes that the provision of one’s address at the scene of the accident does not constitute a “statement” contemplated by the privilege.
Secondly, providing one’s address after an accident is, at best, merely incidental to the completion of the accident report and, this Court now holds, does not implicate the policy considerations behind the privilege. The mere recordation of a driver’s license on an accident report at the scene of an accident is not a protected “communication from ‘a person involved in an accident.” Brackin v. Boles, supra at 544. Such a recordation of an address is more akin to “[t]he tangible evidence of the accident, i.e. location of accident, vehicles’ locations, skid marks, damage to vehicles, all observed by the investigating officer, [which] are not confidential and may be admitted into evidence by the investigating police officer. All this information ordinarily appears on the accident report prepared by the investigating officer and it is clearly admissible at trial.” Brackin, id. [Emphasis added].
Accordingly, this Court concludes that regardless of whether Ms. Machin’s address as recorded on the police report was merely taken from her driver’s license by the investigating police officer or verbally given to the officer by Ms. Machin, that portion of the police report containing the address is admissible on summary judgment so as to create a genuine issue of material fact.2
As for plaintiff’s further argument that the police report constitutes an “unverified document which was never authenticated,” Motion for Rehearing at paragraph 16, and is thus inadmissible at summary judgment, the Arriba court by which this Court is bound, expressly addressed and rejected this identical claim:
We also find, contrary to appellee’s assertion, that the accident report, having been drafted by the police officer, was self-authenticating pursuant to sec. 90.902(2), Fla. Stat. (2003).
CERTIFICATION OF QUESTIONS OFGREAT PUBLIC IMPORTANCE3
Finally, as has become increasingly clear in the Civil Division of the Miami-Dade County Court, the issue of the admissibility of police reports in summary judgment proceedings in PIP litigation has repeatedly reared its head time and again, adding to the already voluminous nature of the dockets of our courts. Accordingly, pursuant to Rule 9.160(a) and (d), Fla.R.App.P., this Court hereby certifies that this case presents the following questions of great public importance for direct review by the District Court of Appeal of Florida, Third District:
DOES FLORIDA’S ACCIDENT REPORT PRIVILEGE, SECTION 316.066(4), FLORIDA STATUTES CREATE A PER SE BAN ON ADMISSIBILITY OF ANY PORTION OF AN ACCIDENT REPORT IN SUMMARY JUDGMENT PROCEEDINGS IN A CIVIL LAWSUIT?
If the answer to this question is in the negative:
DOES FLORIDA’S ACCIDENT REPORT PRIVILEGE, SECTION 316.066(4), FLORIDA STATUTES PRECLUDE CONSIDERATION ON SUMMARY JUDGMENT OF NON-NARRATIVE PORTIONS OF POLICE REPORTS, SUCH AS THE ADDRESS OF THE INDIVIDUAL REQUIRED TO PROVIDE THE REPORT?
For the reasons set forth above, the Court hereby DENIES plaintiff’s Motion for Rehearing.
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1The accident report is attached hereto [omitted].
2Of course, at trial, Ms. Machin may well provide a simple explanation for a contrary address appearing on her license (or from whatever source the officer obtained it) from that of her grandmother, a fact dispute that the jury could quickly resolve in her favor.
3To the extent that this order is or may become a “final order” this certification is intended to facilitate review directly to the District Court of Appeal for the Third District. See Rule 9.030(b)(4)(A), Fla.R.App.P., which provides for discretionary review by the District Courts of Appeal of “final orders of the county court, otherwise appealable to the circuit court under these rules, that the county court has certified to be of great public importance. . .”. [E.s.].
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