13 Fla. L. Weekly Supp. 499b
Insurance — Personal injury protection — Collateral estoppel — Plaintiff’s claim in case involving driver is barred by doctrine of collateral estoppel where parties and issues in PIP case brought by plaintiff as assignee of driver of vehicle involved in accident are identical to those in case brought by same plaintiff seeking benefits under same PIP policy as assignee of passenger in vehicle, trial court in case involving passenger held that plaintiff was not entitled to recover PIP benefits because plaintiff is not physician, hospital, clinic or other person or institution lawfully rendering treatment, and that judgment became binding on parties when it was not appealed
MICRO DIAGNOSTIC a/a/o BAUSCH, HOWARD, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 05-9177 SP 05 (08). December 28, 2005. Wendell M. Graham, Judge. Counsel: Maury L. Udell, Beighley & Myrick, P.A., Miami. Sadie Naveo.
FINAL JUDGMENT
THIS CAUSE having come before the Court on December 19, 2005, on Defendant’s Motion for Summary Judgment, and the Court having reviewed the file, heard argument of counsel, considered same, and otherwise being fully advised in the premises, it is hereby:
ORDERED AND ADJUDGED that Final Judgment be entered in favor of PROGRESSIVE EXPRESS INSURANCE COMPANY and against MICRO DIAGNOSTIC for reasons which follow:
1. Defendant’s Motion for Summary Judgment as to the issue of whether Plaintiff’s suit is barred by the doctrine collateral estoppel is GRANTED.
2. Under the principle of collateral estoppel, when two lawsuits involve the same parties, the parties in the second suit will be estopped from re-litigating those issues that are common to both actions which were previously litigated and determined in the first suit. Daniel Int’l Corp. v. Better Constr., Inc., 593 So. 2d 524 (Fla. 3d DCA 1991).
3. In order for collateral estoppel to apply, the parties and issues must be identical, and the particular matter must be fully litigated and determined in a contest resulting in a final decision of a court of competent jurisdiction. Mobile Oil Corp. v. Shevin, 354 So. 2d 372 (Fla. 1978).
4. The parties and issues in the instant case are identical to those in the case of Micro Diagnostic a/a/o Olga Reyes v. Progressive, Case No. #03-7748 SP 26(02), hereinafter “Reyes”). The claimant in the instant case, Howard Bausch, was the driver in the vehicle involved in the same accident with Olga Reyes, a passenger. Furthermore, Plaintiff sought PIP benefits under the identical policy of insurance that was at issue in the Reyes case. See Paragraph 6 of Plaintiff’s Complaint.
5. In Reyes, Judge Lawrence King held that Plaintiff was not a physician, hospital, clinic or other person or institution lawfully rendering treatment as defined in Fla. Stat. § 627.736(1)(a) and (5)(a) and therefore not entitled to recover personal injury protection benefits. See Federated Nat’l Ins. Co. v. Physicians Charter Svcs., 788 So.2d 403 (Fla. 3d DCA 2001).
6. As there was no timely appeal of the final judgment in Reyes entered on February 10, 2005 [13 Fla. L. Weekly Supp. 499], it became binding on all parties. Therefore, the Court finds that the requirements for the application of collateral estoppel have been met in the present case and Plaintiff’s claim is hereby barred by the doctrine of collateral estoppel as Plaintiff was not a physician, hospital, clinic or other person or institution lawfully rendering treatment as defined in Fla. Stat. § 627.736(1)(a) and (5)(a) and therefore not entitled to recover personal injury protection benefits.
7. Defendant PROGRESSIVE EXPRESS INSURANCE COMPANY shall go hence forth without delay.
8. The Court reserves jurisdiction to hear any timely motions for attorney’s fees, costs, or sanctions pursuant to Fla. Stat. § 57.105.
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