12 Fla. L. Weekly Supp. 1035b
Insurance — Personal injury protection — Coverage — Pedestrian struck by rented vehicle — Appeal of judgment in favor of rental car company in action by injured pedestrian against both rental company and driver’s PIP insurer — Where rental car driver’s PIP policy covers any pedestrian struck by “covered vehicle,” policy defines “covered vehicle” as all vehicles owned by policyholder, and section 324.021(9)(b)(2) classifies lessor of rental vehicle as owner of vehicle for purposes of liability, injury to pedestrian struck by rented car is covered by PIP policy
PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, vs. ANGELO DEVITIS and ENTERPRISE LEASING COMPANY, etc., Appellees. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 04-10112 CACE 25. July 11, 2005.
REVERSED. 31 Fla. L. Weeekly D665a
OPINION
(ROBERT A. ROSENBERG, J.) THIS CAUSE is before the court on appeal from a final judgment rendered in the Broward County Court. The court has reviewed the record, examined applicable case law, considered the submissions of the parties, and being otherwise duly advised in the premises finds and decides as follows:
Shiela Goldman, who is insured by the appellate, Progressive Insurance Company, rented an automobile from the appellee, Enterprise Leasing Company on December 20, 2002. While operating the rental vehicle, Shiela Goldman struck and injured a pedestrian named Angelo Devitis. In order to recover for these injuries, Angelo Devitis brought suit against Progressive Express Insurance Company and Enterprise Leasing Company. Progressive Insurance Company currently seeks an Order of this court to overturn a Final Judgment for Enterprise Leasing Company.
Under Florida law, Florida Statute §627.7263 is a shifting statute that allows Enterprise to shift primary liability and personal injury protection coverage. Once this shifting statute is in effect, the policy of the primary insurer must still be enforced in accordance with its terms. Fireman’s Fund Ins. Co. v. Levine & Partners, P.A., 848 So. 2d 1186, 1187 (Fla. 3d DCA 2003). If the primary insurer’s policy does not cover the claim in question, then the claim resorts back to the secondary insurer for payment.
In the case at hand, Progressive acknowledges that Enterprise complied with the insurance shifting statute’s requirements. As a result, Shiela Goldman’s policy with Progressive is now considered primary, and, therefore, Progressive’s policy’s terms and conditions must be used to determine whether it covers a pedestrian who is struck by a rented vehicle. According to Progressive’s policy, the relevant definition of an “insured person” is any other person sustaining bodily injury while occupying a covered vehicle, or when struck by the covered vehicle while not occupying a self-propelled vehicle. Progressive claims that Angelo Devitis’s injury fails to meet this definition because a “covered car” does not include a rental car. Progressive’s relevant definition of a “covered car” includes all vehicles that are owned by the policy holder. Although Progressive asserts that a rental car does not qualify because it is not an owned vehicle, Florida Stat. §324.021(9)(b)(2) explains that the “lessor, under an agreement to rent or lease a motor vehicle for a period of less than one year, shall be deemed the owner of the motor vehicle for the purpose of liability for the operation of the vehicle. . .” Since this statute classifies the lessor of a rental vehicle as the owner of that car for purposes of liability, the rental car would now be considered a “covered car” pursuant to the definition of Progressive’s policy. Since the rental car is now included as a “covered car,” the definition of an “insured person” is also satisfied. Therefore, the injury suffered by Angelo Devitis is covered under the language of Progressive’s policy.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Final Order of the County Court is AFFIRMED.
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