15 Fla. L. Weekly Supp. 265b
Insurance — Personal injury protection — Coverage is extended to toddler’s head injury incurred in fall on seat belt bolt in vehicle floor while playing in parked vehicle because injury resulted from ownership and use of vehicle
EMERGENCY PHYSICIANS OF CENTRAL FLORIDA, LLP., as assignee of Daniel Larue, Plaintiff(s), vs. PROGRESSIVE CASUALTY INSURANCE COMPANY, Defendant(s). County Court, 9th Judicial Circuit in and for Orange County. Case No. 2007-SC-7294-O. November 19, 2007. Antoinette Plogstedt, Judge. Counsel: Rutledge M. Bradford, Orlando. Anthony Parrino, St. Petersburg.
SUMMARY FINAL JUDGMENT FOR PLAINTIFF AND ORDER DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS MATTER having come before this Court on Plaintiff’s Motion for Final Summary Judgment and the Defendant’s Motion for Summary Final Judgment and this court having heard arguments of counsel and being otherwise fully advised in the premises, hereby awards a Summary Final Judgment for the Plaintiff and enters an Order denying Defendant’s Motion for Final Summary Judgment and further finds, as follows:
1. That the parties agree that there are no material disputed facts.
2. That Amy Gammon is an insured under the policy of insurance issued by Progressive Casualty Insurance Company.
3. That Amy Gammon was and remains the foster care mother of Daniel Larue.
4. That on March 2, 2005, Daniel Larue was in Amy Gammon’s care and was approximately 16 months old at the time.
5. That on that date, Amy Gammon took her foster daughters, ages 6, 8, and 9, to their dance class. She allowed the girls to go into their dance class and waited in the parking lot in her Ford Explorer with Daniel Larue and her 22 month old foster child.
6. That while waiting in the parked vehicle with the engine off and the windows open, she released Daniel Larue and the 22 month old from their car seats and allowed them to play inside the vehicle. Daniel Larue climbed into the back area of the vehicle behind the back seats. Amy Gammon moved the front seats all the way forward so that Daniel Larue and the 22 month old would have room to play between the rear of the front seats and the rear seats. While playing in this area, Daniel Larue lost his footing and fell. He hit his head at the point where a front seat safety belt was bolted to the floor and injured himself.
7. That Amy Gammon drove Daniel Larue to Orlando Regional Hospital on March 2, 2005, to have the injury examined and received services from said hospital and Plaintiff, Emergency Physicians of Central Florida, LLC. While at the hospital, she completed an intake form and produced her driver’s license, Daniel Larue’s Medicaid Card, and her automobile insurance information.
8. That Daniel Larue’s injury to his head on March 2, 2005, occurred inside Amy Gammon’s Ford Explorer while said vehicle was parked in a parking lot with the engine off and keys out of the ignition and while Daniel was playing inside the vehicle.
9. That Plaintiff submitted the bill for the treatment rendered to Daniel Larue on March 2, 2005. Defendant denied said bill alleging that there was no PIP coverage because the injury did not arise from the ownership, maintenance, or use of the motor vehicle.
It is therefore ORDERED AND ADJUDGED that:
Summary Final Judgment is Granted in favor of the Plaintiff as a matter of law and Defendant’s Summary Judgment is hereby Denied.
The Court finds that the toddler’s injury is a reasonably foreseeable consequence of the use of the motor vehicle and also arises out of the ownership of the motor vehicle. The Court further finds that there is a nexus between the motor vehicle and the subject injury. In this case, the actual head injury was caused by contact with a bolt that secures the front seat safety belt to the floor, and the Court finds that it is analogous to an injury that occurs when someone is entering or exiting a vehicle. See Blush v. Atlanta Cas. Co., 736 So.2d 1151 (Fla. 1999); Heritage Mut. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 657 So. 2d 925 (Fla. 1st DCA 1995).
In Heritage, a child on a church bus returning from a church field trip was injured when another child threw something and hit him in the head. Even though the vehicle happened to be in motion, the Court found coverage existed, although there was no actual contact between the child’s head and the vehicle.
In the instant case, although the vehicle was not in motion, the child actually incurred injury by contact or direct nexus with the bolt on the car. Accordingly, PIP coverage should be extended, pursuant to Section 627.736(1)(a), Florida Statutes, as the injury resulted from the ownership and use of the subject motor vehicle.
Plaintiff shall recover the sum of $99.00 from the Defendant, PROGRESSIVE CASUALTY INSURANCE COMPANY, for which let execution issue. The Court hereby awards interest, costs, and attorneys’ fees to the Plaintiff, but reserves jurisdiction to determine the amounts.
