13 Fla. L. Weekly Supp. 118a

Insurance — Personal injury protection — Coverage — Self-propelled vehicle — Claim arising out of injuries sustained by insured, a disabled person who was riding his scooter when he was struck by a van while attempting to cross street — No error in finding that scooter, modified in almost every regard, was a self-propelled vehicle exempt from personal injury protection benefits pursuant to Florida Statutes, § 627.736(4)(d)1. — Scooter was not a motorized wheelchair as one would interpret that term in its normal usage — Appellate holding is limited to the specific facts of this case given the unique characteristics of the scooter — Summary judgment in favor of insurer affirmed

MARSHALL COOK, Appellant, vs. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 03-5079AP-88B. UCN522003AP005079XXXXCV. August 25, 2005. Appeal from Final Judgment, Pinellas County Court, Judge Walt Fullerton. Counsel: Jason Mulholland, Tampa; and Philip M. Burlington, West Palm Beach, for Appellant. Mark D. Tinker, St. Petersburg, for Appellee.

ORDER AND OPINION

THIS CAUSE came before the Court on appeal, filed by Marshall Cook (Cook), from the Final Judgment, entered January 15, 2004, in favor of Nationwide Mutual Fire Insurance Company (Nationwide). Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the trial court’s judgment as set forth below.

The underlying cause of action arose following an accident on June 20, 2000, when Cook was struck by a van while attempting to cross a street. At the time of the accident, Cook, who is disabled, was riding his scooter.¹ Cook sued Nationwide for PIP benefits after Nationwide denied coverage under Cook’s automobile insurance policy. Nationwide moved for summary judgment on the basis that Florida Statutes, § 627.736, precluded coverage since Cook was operating a “self-propelled vehicle” at the time of the accident. The trial court agreed and granted summary judgment in favor of Nationwide.

The issue raised on appeal is whether the trial court erred in concluding that Cook’s scooter was a self-propelled vehicle for purposes of § 627.736(4)(d)1.² Cook argues that based on correlating statutes and case law, the scooter is not a self-propelled vehicle. Alternatively, Cook argues that if this Court’s accepts that the scooter is a self-propelled vehicle, then § 627.736(4)(d)1., would authorize an unconstitutional form of discrimination against handicapped persons. Cook does not argue that there are disputed material facts that precluded the entry of summary judgment. Nationwide responds that the scooter is a self-propelled vehicle pursuant to § 627.736 and that Cook cannot rely on statutes that did not exist at the time of Cook’s accident. Nationwide further responds that the constitutionality of § 627.736 is not properly before this Court. The standard of review to be applied in reviewing these issues is de novo. See Volusia County v. Aberdeen at Ormond Beach, 760 So.2d 126, 130 (Fla. 2000).

Initially, the Court finds that the scooter at the center of the underlying controversy was described by Cook as having four wheels, two in the front and two in the back, and a seat. The scooter was equipped, as modified by Cook, with handle bars, a headlight, control panel, dash panel, batteries, meters, ignition switch, air horns, turn signals, reflectors, and an outlet that provided 12-volt power. It was controlled by Cook using switches located on the handle bars. Cook testified that the scooter was equipped with four batteries, instead of the standard two batteries, which enabled the scooter to travel up to 5 m.p.h., a distance of 500 miles, and to haul, in wagons hitched behind the scooter, up to 3,000 pounds. Cook explained that he did not use the scooter to travel manually, but that he did have the ability to manually move the scooter by pushing with it with his leg and foot from neutral gear.

Since “self-propelled vehicle” is not defined by statute, “evidence of legislative intent can be gleaned from the statute’s history, correlating statutes and case law.” See Miller v. Allstate Insurance Company, 560 So.2d 393, 394 (Fla. 4th DCA 1990). In looking at correlating statutes first, the Court finds that new definitions, specifically Florida Statutes, § 316.003(21), defining “motor vehicle”,³ and § 316.003(83), defining “electric personal assistive mobility device”,⁴ are inapplicable to this action. While it is undisputed that Cook’s scooter would fall into the category of electric personal assistive mobility device, expressly excluded as a motor vehicle, these sections became effective July 1, 2002, well after Cook’s cause of action accrued. These definitions can not be applied retroactively as there is no such intention expressed in the statute and their application to this case would impair substantive rights, i.e. whether Cook would be entitled to PIP benefits. See e.g. Hassen v. State Farm Mutual Automobile Insurance Company, 674 So.2d 106, 108 (Fla. 1996) (stating that an enactment of a statute that affects substantive rights is presumed to apply prospectively in the absence of an express legislative statement to the contrary); Sugar Cane Growers Cooperative v. McLean, 679 So.2d 856, 857 (Fla. 1st DCA 1996) (finding that statutory changes relating permanent total disability to catastrophic injuries as defined in the Federal Social Security Act could not be applied retroactively); Merrit Manor Nursing Home v. Caldwell, 667 So.2d 265, 265 (Fla. 1st DCA 1995) (same); McPhail v. Jenkins, 382 So.2d 1329, 1330 (Fla. 1st DCA 1980)(holding that the court could not retroactively apply statutory amendments to the term “minor” in the absence of language indicating its retroactive application in clear and explicit terms); R.P. v. State, 389 So.2d 658, 659 (Fla. 1st DCA 1980) (finding that statutory changes to the definition of “training school” was prospective, not retroactive, in application).

In so finding, the Court notes that the Florida Supreme Court, in Meister v. Fisher, 462 So.2d 1071, 1072 (Fla. 1984), did cite to recently enacted legislation defining a golf cart as a motor vehicle, Florida Statutes, § 316.003(68) (1983), in a cause of action that clearly accrued prior to 1983.⁵ However, the Florida Supreme Court cited to the new changes, as dictum, to support its analysis that a golf cart negligently operated on a golf course has the same ability to cause serious injury as a motor vehicle operated on a public highway. See id. at 1073.

The definitions that were in affect at the time of Cook’s accident and that are applicable to this action, include: § 322.01(26), defining “motor vehicle” as “any self-propelled vehicle, including a motor vehicle combination, not operated upon rails or guideway, excluding vehicles operated solely by human power, motorized wheelchairs, and motorized bicycles as defined in s. 316.003”; and, § 322.01(42), defining “vehicle” as “every device in, upon, or by which any person or property is or may be transported or drawn upon a public highway or operated upon rails or guideway, except a bicycle, motorized wheelchair, or motorized bicycle.”⁶ Cook’s position is that he was operating a motorized wheelchair, an excluded self-propelled vehicle. However, the Court finds that common sense dictates that Cook’s scooter, modified in almost every regard,⁷ is not a motorized wheelchair as one would interpret the term in its normal usage. Indeed, Cook made several distinctions between his electric wheelchair, used indoors, and his scooter, used outdoors,⁸ stating that when he attempted to use a motorized wheelchair outside following his accident, he “destroyed” the wheelchair as it was “not made to go outside and do what I do.”

In evaluating related case law, the Court finds that a self-propelled vehicle includes a riding lawnmower,⁹ a jitney,¹⁰ and a school bus,¹¹ but not a moped¹² or a golf cart.¹³ In Miller, the Fourth District Court of Appeal found that a riding lawnmower is a self-propelled vehicle and affirmed summary judgment in favor of the insurer. The Fourth District explained that the no-fault insurance act “seems to focus on the equipment’s propensity for accidental injury during operation, excluding those types of vehicles with the highest propensity for injury from coverage such as motorcycles rather than unlicensed minibikes.” See Miller, 560 So.2d at 394. In finding that the riding lawnmower fit more closely into the category of “special mobile equipment,” which are self-propelled vehicles, rather then the moped/bicycle category, the Fourth District also concluded that the riding lawnmower required no outside power source, unlike a moped or bicycle which can be pedaled.

Likewise, while Cook’s scooter is not “special mobile equipment,” it fits that category more closely than the category of moped or bicycle. Cook’s testimony demonstrated that there was an elevated likelihood for injury while operating his scooter; in addition to being struck by a vehicle in June 2000, he’d been hit by an automobile in 1999 while operating his scooter and, following the June 2000 accident, was bumped by a vehicle while attempting to traverse a crosswalk. Cook also placed his scooter in dangerous situations, explaining that he had once been reprimand by paramedics for blocking a crosswalk at an intersection. Further, as in Miller, Cook’s scooter does not operate on an outside power source. Hence, the Court finds that the scooter is a self-propelled vehicle as it more closely resembles a riding lawnmower or electric golf cart than a bike or moped.

In addressing the remaining issue, the Court finds that Cook failed to present any record evidence or case law to this Court that the trial court’s finding that the wheelchair is a self-propelled vehicle is discriminatory. Cook essentially argues that he should be treated as a pedestrian, defined as “[a]ny person afoot”,¹⁴ as Cook stated that the wheelchair is “my legs” and the only means by which he can use a sidewalk.¹⁵ However, as a matter of law, there is no statutory or case law holding that a handicap person, or a person confined to a wheelchair, is to be treated as a pedestrian for purposes of receiving personal injury protection benefits under § 627.736.

Lastly, and importantly, the Court emphasizes that this holding is limited to the specific facts of this case, given the unique characteristics of the scooter involved in the underlying proceedings. It is not the intent of this panel for this opinion to be construed as finding that any wheelchair with a motor on it would be a self-propelled vehicle, excluded from PIP coverage. The Court further recognizes that statutory changes since the time of Cook’s accident may affect the issue of PIP coverage in such related cases.

Therefore, it is,

ORDERED AND ADJUDGED that the Final Judgment is affirmed. It is further,

ORDERED AND ADJUDGED that the Appellant’s Motion for Attorney’s Fees is denied. (DAVID A. DEMERS, PETER RAMSBERGER and ANTHONY RONDOLINO, JJ.)

__________________

¹The Court will refer to the mobility device that Cook was operating at the time of the accident as a scooter instead of an electric wheelchair. While the terms “scooter” and “electric wheelchair” were used interchangeably at times during the proceedings below, Cook did distinguished between the two devices during his deposition, explaining that he used his electric wheelchair indoors and his scooter outdoors. See Deposition Transcript: pgs. 65, 68, 74, 77.

²Section 627.736(4)(d)1., states: “(d) The insurer of the owner of a motor vehicle shall pay personal injury protection benefits for: 1. Accidental bodily injury sustained in this state by the owner while occupying a motor vehicle, or while not an occupant of a self-propelled vehicle if the injury is caused by physical contact with a motor vehicle.” (emphasis added).

³The 2002 legislative enactments redefined motor vehicle as: “Any self-propelled vehicle not operated upon rails or guideway, but not including any bicycle, motorized scooter, electric personal assistive mobility device, or moped.”

⁴The 2002 legislative enactments created the new term electric personal assistive mobility device, defined as: “Any self-balancing, two-nontandem-wheeled device, designed to transport only one person, with an electric propulsion system with average power of 750 watts (1 horsepower), the maximum speed of which, on a paved level surface when powered solely by such a propulsion system while being ridden by an operator who weighs 170 pounds, is less than 20 miles per hour. Electric personal assistive devices are not vehicles as defined in this section.”

⁵As pointed out by Cook, the lower appeal number assigned by the Fourth District Court of Appeal, No. 82-585, indicates that the subject accident occurred not later than 1982.

⁶Section 316.003(21)(1999), defines “motor vehicle” as “[a]ny self-propelled vehicle not operated upon rails or guideway, but not including an bicycle or moped.”

⁷Cook explained that he would purchase a scooter for approximately $5,000, and spend another $10,000 in modifications. See Deposition Transcript, pgs. 67, 72-73, 77-81.

⁸See Footnote 1, supra.

⁹See Miller, 560 So.2d at 394.

¹⁰See Progressive Casualty Ins. Co. v. Watson, 696 So.2d 543, 545 (Fla. 3d DCA 1997).

¹¹See Esker v. Nationwide Mutual Fire Ins. Co., 593 So.2d 303, 304 (Fla. 2d DCA 1992).

¹²See Velez v. Criterion Ins. Co., 461 So.2d 1348, 1349 (Fla. 1984).

¹³See Meister, 462 So.2d at 1072.

¹⁴See Fla. Stat. 316.003(28)(1999).

¹⁵The Court notes that Cook does own and operate an automobile, with no modifications.