13 Fla. L. Weekly Supp. 526b
Insurance — Personal injury protection — Coverage — Resident relative — Dependent daughter who did not own vehicle and resided with father was entitled to PIP benefits from father’s insurer for injuries suffered while passenger in another driver’s vehicle — Daughter is not entitled to recover deductible applicable to father’s PIP policy from driver or driver’s PIP insurer
REBECCA MILAM, Plaintiff/Appellant, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant/Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1 04-26. L.C. Case No. 2001-SC-7281. March 2, 2006. Appeal from the County Court, Orange County, Brewer, Jerry L., J. Counsel: Steven J. Kirschner, Steven J. Kirschner, P.A., Winter Park, for Appellant. Betsy E. Gallagher, Kubicki Draper, P.A., Tampa, for Appellee.
(BEFORE Strickland, Thorpe, and MacKinnon, JJ.)
ORDER AND OPINION AFFIRMING TRIAL COURT
(PER CURIAM.) Appellant, Rebecca Milam, seeks review of the trial court’s Order Granting Defendant’s Second Amended Motion for Summary Final Judgment and Denying Plaintiff’s Motion for Summary Judgment Concerning Liability [11 Fla. L. Weekly Supp. 568b]. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(c)(3). This Court dispenses with oral argument pursuant to Florida Rule of Appellate Procedure 9.320.
FACTS AND PROCEDURAL HISTORY
On November 9, 1997, Milam sustained injuries in an automobile accident while she was a passenger in a vehicle owned by Gloria J. Lenahan. Lenahan was insured by Appellee, Progressive Express Insurance Company (“Progressive”).
At the time of the accident, Milam was a minor and resided with her father, Randy Dockery. Milam’s father owned an automobile that was insured by American Premier Insurance Company (“American”). Dockery’s coverage included Personal Injury Protection (“PIP”) benefits of $10,000 with a $2,000 deductible. Milam did not own an automobile at the time of the accident.
American paid PIP benefits to Milam in the amount of $8,000 after Milam satisfied the $2,000 deductible. Milam then sought reimbursement from Progressive for the $2,000 deductible she was required to pay American. When Progressive refused to pay, Milam filed a Complaint against Progressive in county court.
On April 1, 2003, Milam filed a Motion for Summary Judgment Concerning Liability. Milam argued that she was covered by both PIP policies and that she was entitled to receive $2,000 in benefits from Progressive as a result of the required deductible under the American policy.
On January 30, 2004, Progressive filed a Second Amended Motion for Summary Final Judgment and Motion for Protective Order. Progressive argued that Milam was excluded from its policy benefits because she was entitled to benefits under another policy.
The trial court issued an Order Granting Defendant’s Second Amended Motion for Final Summary Judgment and Denying Plaintiff’s Motion for Summary Judgment Concerning Liability on April 20, 2004. Milam filed a Notice of Appeal on May 18, 2004.
Milam filed her Initial Brief on October 27, 2004 and a Motion for Attorney’s Fees and Costs on November 18, 2004. Progressive filed its Answer Brief on November 24, 2004. A Request for Oral Argument was filed on November 29, 2004. Milam’s Reply Brief was filed on January 26, 2005.
STANDARD OF REVIEW
A final summary judgment is subject to de novo review. Volusia County v. Aberdeen at Ormond Beach, LP, 760 So. 2d 126 (Fla. 2000). In order to determine the propriety of a summary judgment, this Court must determine whether there is any genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Krol v. City of Orlando, 778 So. 2d 490, 491 (Fla. 5th DCA 2001); Fla. R. Civ. P. 1.510(c). In reviewing a trial court’s order granting a motion for summary judgment, this Court must view the evidence in a light most favorable to the appellant and must draw all competing inferences in favor of the appellant. See Hoch v. Rissman, Weisberg, Barrett, 742 So. 2d 451, 456 (Fla. 5th DCA 1999).DISCUSSION
The facts in this case are undisputed. Milam was a dependent relative residing with her father when she was injured in an automobile accident while a passenger in Lenahan’s automobile. Milam did not own an automobile and did not maintain her own insurance coverage. The issue, as framed by the parties, is whether Milam was entitled to recover the $2,000 deductible on her father’s policy from Progressive as a matter of law.
Milam argues that she was covered under both policies but was not entitled to benefits under American’s coverage for the first $2,000, therefore, she is entitled to recover those benefits from Progressive. Progressive argues that Milam was only covered by American’s policy and, because she was entitled to receive benefits, she cannot seek reimbursement for her deductible from Progressive.
Section 627.736(1), Florida Statutes, provides that “[e]very insurance policy complying with the security requirements of s. 627.733 shall provide personal injury protection to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle while not an occupant of a self-propelled vehicle, subject to the provisions of subsection (2) and paragraph (4)(d), to a limit of $10,000 . . . .”
Section 627.736(4)(d), Florida Statutes, provides that:
The insurer of the owner of a motor vehicle shall pay personal injury protection benefits for:
3. Accidental bodily injury sustained by a relative of the owner residing in the same household [while occupying a motor vehicle] provided the relative at the time of the accident is domiciled in the owner’s household and is not himself the owner of a motor vehicle with respect to which security is required under ss. 627.730-627.7405.
4. Accidental bodily injury sustained in this state by any other person while occupying the owner’s motor vehicle . . . provided the injured person is not himself: a. The owner of a motor vehicle with respect to which security is required under ss. 627.730-627.7405; or b. Entitled to personal injury benefits from the insurer of the owner or owners of such a motor vehicle.
A fair reading of these provisions indicates that Milam was entitled to personal injury benefits from American pursuant to section 627.736(4)(d)3, Florida Statutes, and that Progressive was not required to pay benefits to her because Milam fell within the exclusion of section 627.736(4)(d)4.b., Florida Statutes. Milam argues, however, that the application of a deductible to her PIP coverage renders her entitlement to benefits void as to American’s policy and allows her to collect benefits from Progressive because she no longer falls within the exclusion of section 627.736(4)(d)4, Florida Statutes.
“Generally, the functional purpose of a deductible . . . is to alter the point at which an insurance company’s obligation to pay will ripen.” International Bankers Insurance Company v. Arnone, 552 So. 2d 908, 911 (Fla. 1989). Section 627.739(1), Florida Statutes, provides that a named insured may elect a deductible or modified coverage when obtaining PIP protection. Section 627.736(2), Florida Statutes, provides that such a deductible shall “be deducted from the benefits otherwise due each person subject to the deduction.” (Emphasis added). “The purpose of the PIP deductible is to prevent car owners with other insurance coverage from paying premiums for duplicative coverage. . . . Electing a PIP deductible is optional and therefore it is presumed that the purchasers of PIP do so with knowledge of the consequences, including possibly incomplete coverage. Hannah v. Newkirk, 675 So. 2d 112, 114 (Fla. 1996).
In Travelers Insurance Company v. Furlan, 408 So. 2d 767 (Fla. 5th DCA 1982), Anthony Furlan, a pedestrian who was struck and injured by Meeks, sought to recover PIP benefits from Meeks’ insurer. At the time of the accident, Furlan was eighteen, did not own a motor vehicle, and was a resident in his mother’s home. His mother owned an automobile and had PIP coverage of $10,000.00 with an $8,000.00 deductible while Meeks had $10,000 in coverage with no deductible.
The District Court of Appeal, interpreting section 627.736(4)(d)4, Florida Statutes, found that Furlan was not entitled to benefits under Meeks’ policy. The Court held that “[s]ince Furlan was entitled to personal injury protection benefits from another source, he fell squarely within the exclusion of section 627.736(4)(d)4.b and was thus not entitled to personal injury protection coverage under the policy of the owner of the car which struck him.” Id. at 768. The Court came to this conclusion despite the fact that Furlan would have to first satisfy an $8,000 deductible before receiving the benefits to which he was entitled. Pursuant to the holding of Furlan, the Court finds that the fact that Milam must satisfy a deductible prior to receiving benefits does not mean she is not entitled to benefits and it does not exclude her from coverage under American’s policy for the first $2,000.
Further, it is worth noting that the Florida Supreme Court reviewed section 627.736, Florida Statutes, in Arnone and concluded that, when a deductible is applied, a party is only entitled to recover what benefits remain up to a limit of $10,000. The Court held that “[b]ased upon the plain language of section 627.736(1) and 627.736(2), . . . the authorized deductible amounts [are] to be subtracted from the lesser of the eligible benefits after application of the coinsurance percentages of sections 627.736(1)(a) and (b) or the statutorily mandated coverage limit of $10,000.” Arnone, at 911. Thus, the Florida Supreme Court, as well as the statutes, contemplate that a party may elect a deductible but that deductible in no way affects entitlement to benefits, it simply determines how much will be paid out up to a limit of $10,000 total.
Finally, section 627.739(1), Florida Statutes, clearly states that a person who elects a deductible “shall have no right to claim or to recover any amount so deducted from any owner, registrant, operator, or occupant of a vehicle or any persons or organization legally responsible for any such person’s acts or omissions who is made exempt from tort liability by ss. 627.730-627.7405.” Milam’s father elected a deductible and Milam is covered under his policy, therefore, Milam has no right to claim or recover that deductible from Progressive or Lenahan.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the trial court’s Order Granting Defendant’s Second Amended Motion for Summary Final Judgment and Denying Plaintiff’s Motion for Summary Judgment Concerning Liability is AFFIRMED. (STRICKLAND, THORPE, and MACKINNON, JJ., concur.)
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