15 Fla. L. Weekly Supp. 98a

Insurance — Personal injury protection — Coverage — Injury while occupying vehicle owned by named insured but not insured under policy — Where plaintiff/named insured was injured while driving vehicle owned by his wife who is also named insured, vehicle was not insured under PIP policy, and exclusion of policy specifically provides for no coverage for injury sustained by named insured while occupying another vehicle owned by named insured and not insured under policy, plaintiff is precluded from coverage

QUALITY MEDICAL GROUP, INC., A/A/O PASTOR RODRIGUEZ, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 02-8607 CC 05 (06). August 15, 2007. Bronwyn C. Miller, Judge. Counsel: Virginia Best. Norma Kassner.

AFFIRMED at 16 Fla. L. Weekly Supp. 821a

ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT REGARDING COVERAGE

THIS CAUSE, having come before the Court upon Defendant’s Motion for Final Summary Judgment and Plaintiff’s Motion for Final Summary Judgment Regarding Coverage on July 23, 2007 and August 14, 2007 and the Court having heard argument of counsel, reviewed the procedural history and relevant legal authority, and having otherwise been fully advised in the premises the Court hereby GRANTS Defendant’s Motion for Final Summary Judgment and DENIES Plaintiff’s Motion for Final Summary Judgment Regarding Coverage on the following grounds:

Relevant Facts:

Plaintiff and his wife, Milada Rodriguez, were covered by a policy of insurance issued by Defendant. Plaintiff sustained injuries while driving a 1993 Mitsubishi owned by and registered to his wife, Milada Rodriguez. Said Mitsubishi was not insured pursuant to the policy of insurance. Affidavit of Jorge De La O p. 1.

The policy of insurance excludes coverage for PIP benefits “to the named insured or any relative while occupying a motor vehicle of which the named insured is the owner and which is not insured under this insurance.” Florida Personal Auto Policy United Automobile Insurance p. 13. This exclusion follows the language of. § 627.736(2)(a), Fla. Stat. (2001).¹

Summary Judgment Standard:

Summary judgment may only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c); Moore v. Moore, 475 So. 2d 666 (Fla. 1984). In Romero v. All Claims Ins. Repairs, 698 So. 2d 605, 606 (Fla. 3d DCA 1997), four principles were laid out for consideration when conducting a summary judgment analysis:

First, summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Second, the burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact.

Third, the trial court must draw every possible inference in favor of the party against whom summary judgment is sought.

Fourth, if the evidence raises any issues of material fact, or if it is conflicting, or if it will permit different reasonable inferences, or if it tends to prove the issues, summary judgment can not be granted.

A summary judgment should not be granted unless the facts are “so crystallized that nothing remains but questions of law.” Moore, 475 So. 2d at 668.

Successor Judge:

The issue of coverage was raised before the predecessor judge. However, both parties agree that coverage is a matter of law that must be resolved by the court. It is well settled in this state that the trial court has the inherent authority to reconsider any interlocutory rulings prior to the entry of final judgment. Bettez v. City of Miami, 510 So. 2d 1242, 1243 (Fla. 3d DCA 1987).

While a judge should hesitate to undo his own work, and should hesitate still more to undo the work of another judge, he does have, until final judgment, the power to do so and may therefore vacate or modify the Interlocutory rulings or orders of his predecessor in the case. This ‘code’ of restraint is not based solely on the law of the case but is founded upon considerations of comity and courtesy. It has been held that a succeeding judge may adopt the findings of fact of his predecessor and render judgment thereon. Tingle v. Dade County Board of Comm’n, 245 So. 2d 76 (Fla. 1971).

If the successor judge does not adopt the findings of the predecessor judge, the judge should hear the evidence for herself. Smith v. Silberman, 586 So. 2d 467, 468 (Fla. 3d DCA 1991). A successor judge that does not hear all the evidence may not enter a judgment on the prior rulings of the predecessor judge. Id.

Contract Construction and Exclusion:

The general rule of contract construction is that if the language is plain and ambiguous, there is no reason to construe the contract. Rigel v. National Casualty Company, 76 So. 2d 285 (Fla. 1954). If the Court must construe an insurance contract, the Court should construe the insurance contract to give effect to the intent of the parties. Id.

The policy of insurance at issue in the case sub judice defines named insured as “the person or organization named in the Declarations of the Policy; and if an individual, shall include the spouse if a resident of the same household. If the spouse is a resident of another household, “you” must report the spouse to “us” on the application.” Id. at 2. Owner is defined as “a person or organization who holds the legal title to a motor vehicle. . .” Florida Personal Auto Policy United Automobile Insurance p. 1. In this case, the definitions in United Auto’s policy of named insured and owner are clear and unambiguous.

In Industrial Fire and Casualty Insurance Company v. Jones,² the Third District Court of Appeal held “that a person described as the spouse of a policyholder may properly be included as the insured even though the given name and surname of such spouse are not stated in the policy.” Id. While the court considered the mother a named insured and the owner of the vehicle under her husband’s policy, the son was properly excluded from recovery of PIP benefits pursuant to § 627.736(2)(a) Fla. Stat. Id. at 1170. This was because the car involved in the accident at issue was not insured under the PIP policy. Id. The District Court further determined that the insurance company was entitled to summary judgment as a matter of law. Id. at 1169.

In this case, Plaintiff, a named insured, was driving a motor vehicle owned by his wife, who is also a named insured, which was not insured under the United Auto insurance policy. Both Plaintiff and his spouse fall under the umbrella of “the named insured.” The exclusion in the insurance contract provides, specifically, for no coverage for injury sustained by the named insured while occupying another motor vehicle owned by the named insured and not insured under the policy.

This identical scenario was presented in Guerrero v. United Automobile Insurance Co., 9 Fla. L. Weekly Supp. 224b (11th Jud. Cir. App. 2002). In Guerrero, Plaintiff and his mother both qualified as named insureds under a policy of insurance issued by Defendant. Plaintiff was injured while driving a motor vehicle owned by his mother, but not insured under the policy. The court found “§ 627.736(2)(a) applies only if the 1986 Mercury Sable was owned by [Plaintiff] or his mother.” Id. (emphasis added). Although the Guerrero Court reversed summary judgment due to a genuine issue of material fact in the record regarding ownership of the automobile occupied by Plaintiff at the time of the injury, the court recognized that summary judgment would be proper if Plaintiff’s mother owned the automobile.

Conclusion:

Thus, as Plaintiff and his spouse are both named insureds under the policy, Plaintiff is precluded from coverage. See Fidelity & Casualty Co. of New York v. Fonseca, 358 So. 2d 569, 570 (Fla. 3d DCA 1978) (“We hold that, on the facts before us, the plain, unambiguous language of the policy provides neither PIP nor liability benefits”); Industrial Fire & Casualty Ins. Co. v. Jones, 363 So. 2d at 1170 (Fla. 3d DCA 1978) (“We hold . . . that a person described as a spouse of a policyholder may properly be included as a named insured even though the given name and surname of such spouse are not stated in the policy. . . [A]ny other interpretation would bring about the ridiculous result of allowing the insurance of one automobile and the coverage on several unnamed automobiles.”).

WHEREFORE, Defendant’s Motion for Final Summary Judgment is hereby GRANTED. Defendant shall go henceforth without day.

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¹§ 627.736(2)(a) Fla. Stat. (2001) provides that any insurer may exclude personal injury protection benefits:

For injury sustained by the named insured and relatives residing in the same household while occupying another motor vehicle owned by the named insured and not insured under the policy or for injury sustained by any person operating the insured motor vehicle without the express or implied consent of the insured. (Emphasis added.)

²Industrial Fire and Casualty Insurance Company v. Jones, 363 So. 2d 1168, 1170 (Fla. 3d DCA 1978).