15 Fla. L. Weekly Supp. 373c
Insurance — Personal injury protection — Coverage — Claimant who resided with his brother-in-law at time of accident was not entitled to PIP coverage under policy of insurance issued to brother-in-law where uncontroverted evidence established that brother-in-law did not obtain his driver’s license until at least three months after the accident at issue and was not eligible to purchase automobile insurance prior to obtaining his driver’s license
PERFORMANCE MEDICAL CENTER, INC., a/a/o Ariel Fernandez, vs. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 05-26160 CC 23 (03). January 28, 2008. Linda Singer Stein, Judge. Counsel: Edward Winitz. Robert Trilling, Trilling & Associates, P.A., Davie.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO AFFIRMATIVE DEFENSES 1 THROUGH 4
THIS CAUSE came before the Court on Plaintiff’s Motion For Partial Summary Judgment as to Affirmative Defenses 1 through 4. After careful consideration of the Motion, response, argument of counsel and being fully advised, the Court’s findings are set forth below.
I. FINDINGS OF FACT
1) This is a breach of contract action for Personal Injury Protection (PIP) benefits arising from treatment rendered to ARIEL FERNANDEZ (“claimant”) by Plaintiff, as a result of an automobile accident on March 15, 2005.
2) State Farm denied Plaintiff’s bills and raised various affirmative defenses including that Claimant resided with a household resident relative, Jesus Garcia, claimant’s brother-in-law. It is Defendant’s position that Mr. Garcia drove a motor vehicle which was required to have security, in the form of PIP insurance. Therefore, State Farm asserted that PIP benefits should be afforded to Claimant and/or Plaintiff under the policy of insurance of Jesus Garcia.
3) The evidence presented by both parties included the Affidavit of Ariel Fernandez, the Examination Under Oath of Ariel Fernandez, the policy of insurance and the deposition of Jesus Garcia.
4) There is no evidence that Jesus Garcia, the alleged resident relative, carried automobile insurance at the time of this accident with any insurance company. The uncontroverted evidence is that Jesus Garcia did not obtain his driver’s license until at least 3 months after this accident had occurred, and was not eligible to purchase automobile insurance prior to obtaining his driver’s license.
5) Based upon the evidence presented, the alleged resident relative, Jesus Garcia, did not carry personal injury protection insurance at the time of this accident.
II. CONCLUSIONS OF LAW
1) The Court finds that State Farm’s claimant, Ariel Fernandez, is not entitled to Personal Injury Protection benefits through the insurer of his resident relative, Jesus Garcia, there being no evidence of any such insurer.
2) In addition, there is no evidence that the resident relative, Jesus Garcia, actually carried Personal Injury Protection insurance at the time of this accident. F.S. 627.736(4)(d)(4)(b) requires more than a resident relative who was required to carry PIP insurance. Coverage would only be provided to Claimant through a policy of Mr. Garcia if, as a resident relative he actually carried PIP insurance through which the claimant would be entitled to benefits. Here, the only evidence of any policy of insurance is through Defendant’s policy.
Based upon the above, Partial Summary Judgment is Granted in favor of the Plaintiff and against the Defendant as to Affirmative Defenses 1, 2, 3 and 4.
