15 Fla. L. Weekly Supp. 275b
Insurance — Personal injury protection — Coverage — Insured occupying vehicle not covered under policy — Where at time of accident insured was occupying vehicle owned solely by insured’s resident wife who is named insured under policy, and policy excludes coverage for named insured while occupying vehicle owned by named insured and not covered under policy, insurer does not owe PIP benefits to insured, wife or medical provider/assignee
SOUTH FLORIDA PHYSICIAN GROUP (a/a/o Clinton Cason), Plaintiff, vs. OCCIDENTAL FIRE & CASUALTY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 06-10779 COCE 53. December 11, 2007. Robert W. Lee, Judge. Counsel: Wayne S. Kramer, Fort Lauderdale, for Plaintiff. Brian S. Tenzer, Goldstein & Ray, P.A., Fort Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on December 10, 2007 for hearing on Defendant’s Motion for Final Summary Judgment, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background. The following facts are undisputed:
1. This is an action for the recovery of Personal Injury Protection Benefits (PIP) under the “Florida Motor Vehicle No-Fault Law.”
2. On June 2, 2002, Clinton Cason was involved in an automobile accident.
3. Plaintiff, South Florida Physician’s Group, filed this lawsuit seeking payment of PIP benefits for services allegedly rendered to Clinton Cason for injuries allegedly sustained in the accident of June 2, 2002. Plaintiff has filed this suit as the claimed assignee of Clinton Cason.
4. Occidental issued a policy of insurance to Clinton Cason which was in full force and effect on June 2, 2002. This policy of insurance provided Personal Injury Protection benefits subject to the conditions and provisions of the policy as well as Florida Statutes and case law.
5. At the time of the accident at issue, Clinton Cason was occupying a 1994 Honda owned solely by his wife, Carolyn Cason.
6. At all times material, Carolyn Cason was the spouse of Clinton Cason and a resident of the same household as Clinton Cason.
7. Occidental has stipulated that the policy attached as Exhibit “A” to Plaintiff’s Motion for Partial Summary Judgment is a true and correct copy of the policy at issue.
8. The 1994 Honda that Clinton Cason was occupying at the time of the subject motor vehicle accident was not a “covered auto” under the subject policy of insurance.
Conclusions of Law. The subject policy of insurance provides that Occidental does not provide PIP coverage for the “named insured” while occupying a motor vehicle which is owned by the “named insured”, and not a covered automobile under the policy. As Clinton Cason was occupying a motor vehicle owned by a “named insured,” to-wit: Carolyn Cason; and which was not covered under the subject policy, Occidental owes no Personal Injury Protection benefits to either Clinton Cason or to the Plaintiff as the claimed assignee of Clinton Cason.
Florida Statutes §627.736(1) (2001), generally speaking, provides that every insurance policy issued in the State of Florida must provide Personal Injury Protection Benefits to
the named insured, residents residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle and other persons struck by such motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle, subject to the provisions of subsection (2) . . .”(emphasis added).
Subsection (2), titled AUTHORIZED EXCLUSIONS, provides that an insurer may exclude benefits for:
(a) [ ] injuries 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 injuries sustained by any person operating the insured motor vehicle without the express or implied consent of the insured.
Id. §627.736(2)(a) (2001).
Occidental’s policy of insurance issued to Clinton Cason contains an exclusion that traces the language of the “AUTHORIZED EXCLUSIONS” of the PIP statute. This policy exclusion is on page 3 of the policy and in the section titled “EXCLUSIONS”:
B. We do not provide Personal Injury Protection Coverage for:
1. The “named insured” or any “family member” while “occupying” a “motor vehicle” which is:
a. Owned by the “named insured” and
b. Not a “your covered auto” under this policy.
On page 2 of the policy, “named insured” is defined as:
a. The person named in the Declarations; or
b. That person’s spouse, if a resident of the same household.
As Carolyn Cason is the resident spouse of Clinton Cason, she is a “named insured” under the policy. On page 1 of the policy, “your covered auto” is defined as a motor vehicle owned by the “named insured” and for which a premium is charged. As no premium was charged for the 1994 Honda owned by Carolyn Cason, the vehicle that Clinton Cason was occupying at the time of the accident was not a “covered auto.”
Therefore, it cannot be disputed that Clinton Cason was occupying a motor vehicle that was owned by a named insured and which was not a “covered auto” under the policy issued by Occidental. The facts in this case fall squarely within the policy exclusion which is specifically permitted by Florida Statute §627.736(2)(a). Therefore, Occidental owes no Personal Injury Protection coverage to Clinton Cason under the policy at issue and, therefore, South Florida Physician’s Group, as the claimed assignee of Clinton Cason, is not entitled to PIP benefits. Thus, Occidental is entitled to Final Summary Judgment as a matter of law.
This Court is bound by the ruling of the Third District Court of Appeal in Industrial Fire and Cas. Ins. Co. v. Jones, 363 So.2d 1168 (Fla. 3d DCA 1978). In Industrial Fire, Plaintiff, Calvin Jones, lived with his mother and his step-father. Industrial Fire insured the vehicle owned by the step-father, but not a vehicle owned by the Plaintiff’s mother. The Plaintiff was injured in an automobile accident while driving his mother’s car. He claimed PIP benefits from Industrial, which Industrial denied on the ground that the claim was barred by an exclusion in the policy which mirrors the exclusion at issue in this lawsuit. The exclusion in the Industrial Fire case excluded 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 an insured motor vehicle under this insurance.
The insurer claimed that the policy exclusion was specifically authorized by Florida Statute §627.736(2)(a) (1977) which is identical to the exclusion contained in the 2001 version of the same statute.
First, the Industrial Fire court pointed out that it agreed with prior opinions finding Florida Statute §627.736(2)(a) (1977) to be a valid exclusion. Moreover, the Industrial Fire court upheld the validity of the definition of a “named insured” which includes a resident spouse. See also Fidelity & Cas. Co. of New York v. Fonseca, 358 So.2d 569, 575 (Fla. 3d DCA 1978) (“[t]he rationale underlying such inclusion of both resident spouses within the definition of a named insured is clear and reasonable. It was intended to protect the insurer from assuming risks for which premium payments were not elicited and situations where such risks were likely to eventuate”); Sturgis v. Fortune Ins. Co., 475 So.2d 1272 (Fla. 2d DCA 1985).
As the Plaintiff, Calvin Jones’ mother was a “named insured” under the policy by virtue of being a resident spouse, and because the vehicle in which Calvin Jones was occupying at the time of the accident was not a covered automobile under the policy, the court held that there was no coverage under the policy. Likewise, this Court holds that there is no coverage for Clinton Cason under the Occidental policy and, thus, Occidental is entitled to final summary judgment as a matter of law.
Plaintiff, in its Motion for Partial Summary Judgment, suggests that Occidental is attempting to define Clinton Cason as an owner of the 1994 Honda. This is not the case. By stipulation of the parties, as well as the definition of the owner of the motor vehicle, Carolyn Cason is the owner of the 1994 Honda. The definition of the owner of a motor vehicle cited by the Plaintiff is significant only to the extent of showing that Carolyn Cason is the owner of a motor vehicle which was occupied by Clinton Cason at the time of the accident. Plaintiff fails to appreciate the fact that Carolyn Cason is a “named insured” and that her vehicle, the one in which her husband was occupying at the time of the accident, was not a “covered auto” at the time of the accident. The Court rejects the Plaintiff’s argument that there is a difference between “a named insured” and “the named insured.”
The exclusion in Occidental’s policy is specifically authorized by the Florida Legislature as codified in Florida Statutes §627.736(2)(a). Moreover, Occidental’s definition of a “named insured” which includes a resident spouse has also been determined to be valid at the appellate level. As Clinton Cason was occupying a motor vehicle owned by a “named insured” but was not covered under Occidental’s policy, no coverage is due by Occidental. Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment is GRANTED. The Defendant shall submit a proposed final judgment conforming to the terms of this Order.
