16 Fla. L. Weekly Supp. 205a
Online Reference: FLWSUPP 162GARC2
Insurance — Personal injury protection — Coverage — Claimant who failed to maintain insurance on own vehicle — Where claimant injured as passenger failed to maintain PIP insurance on own vehicle and failed to provide any evidence supporting claim that PIP policy covering vehicle in which she was injured inured to claimant’s benefit, final summary judgment is entered in favor of insurer — Inoperable vehicle — No merit to argument that insurer had burden to prove claimant’s vehicle was operable, that claimant was true and beneficial owner of vehicle and that vehicle is vehicle to which statutory requirement to maintain security for vehicles applies where claimant did not place insurer on notice that she was asserting any of those defenses
ADVANCED HEALTH MEDICAL CENTER, a/a/o ISELA GARCIA, Plaintiff, v. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 07-13085 SP 05 (08). December 15, 2008. Wendell M. Graham, Judge. Counsel: Rita Baez, for Plaintiff. Brian S. Tenzer, Goldstein & Ray, P.A., for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT AND ENTRY OF FINAL JUDGMENT IN FAVOR OF DEFENDANT
THIS CAUSE, having come on before the Court on Defendant’s Motion for Final Summary Judgment, and the Court, having considered the record, having heard argument of counsel and being otherwise advised in the Premises, it is hereby ORDERED AND ADJUDGED:
UNDISPUTED FACTS
1. This lawsuit is based upon an alleged motor vehicle accident that occurred on or about October 12, 2004. The claimant/patient, Isela Garcia, was a passenger in a vehicle that was owned by Irma Guzman and insured by the Defendant,MERCURY INSURANCE COMPANY OF FLORIDA (hereafter “MERCURY”).
2. The Plaintiff is seeking benefits as the alleged assignee of Isela Garcia.
3. Paragraph 6 of Plaintiff’s Complaint alleges that a policy of insurance was issued by MERCURY to Irma Guzman which inured to the benefit of Isela Garcia. This allegation was denied by MERCURY. MERCURY also asserted an affirmative defense that Isela Garcia owned a motor vehicle at the time of the loss. Plaintiff did not file a Reply and Avoidance.
4. MERCURY timely filed an affidavit from its adjuster, Stephanie Rapko, wherein she attests that Isela Garcia is not an insured under any policy issued by MERCURY.
5. MERCURY timely filed with the Court a certified copy, under seal, of the records of Isela Garcia from the Division of Motor Vehicles Department of Highway Safety and Motor Vehicles which revealed:
– On June 6, 2003, Isela Garcia purchased a 1999 Chevrolet Camaro from Mazda of Kendall;
– On July 7, 2003, the same 1999 Chevrolet Camaro was registered under the name of Isela Garcia in the State of Florida;
– On October 19, 2006, the registration of the same 1999 Chevrolet Camaro was renewed under the name of Isela Garcia in the State of Florida;
– Between June 6, 2003 and June 12, 2007 (the date that the Division of Motor Vehicles certified the response to MERCURY’s Subpoena Duces Tecum), the title and registration for the same 1999 Chevrolet Camaro never changed.
6. Plaintiff filed nothing in the Court record relative to MERCURY’sMotion for Final Summary Judgment.
7. Pursuant to MERCURY’s Affidavit and Request for Judicial Notice of the records from the Division of Motor Vehicles Department of Highway Safety and Motor Vehicles, there is no genuine issue of material fact thatMERCURYdid not insure Isela Garcia and that Isela Garcia owned a motor vehicle at the time of the alleged motor vehicle accident.
Based upon the foregoing, the Court makes the follow findings of law:
8. Florida Statute §627.736(4)(d), in pertinent part, provides as follows:
(d) The insurer of the owner of a motor vehicle shall pay Personal Injury Protection Benefits for:
4. Accidental bodily injury sustained in this state by any other person while occupying the owner’s motor vehicle or, if a resident of this state, while not an occupant of a self-propelled vehicle, if the injury is caused by physical contact with such motor vehicle, provided the injured person is not himself or herself:
a. The owner of a motor vehicle with respect to which security is required under ss.627.730-627.7405;. . . .
(Emphasis added)
9. Florida Statute §627.736(4)(d)4 provides that any other person while occupying the owner’s motor vehicle is entitled to Personal Injury Protection Benefits under that owner’s policy except when that injured person is“[t]he owner of a motor vehicle with respect to which security is required under ss.627.730-627.7405;. . .”
10. However, Isela Garcia is the owner of a motor vehicle registered in the State of Florida and, therefore, is required to maintain her own insurance or, if she did not, she is personally liable for the payment of personal injury protection benefits. Florida Statute §627.733; see generally, Travelers Insurance Company v. Furlan, 408 So. 2d 767 (Fla. 5th DCA 1982).
11. As there is no dispute that Isela Garcia was the owner of a motor vehicle at the time of the alleged motor vehicle accident, and because Plaintiff presented no record evidence to this Court that the policy of insurance “inured to the benefit of Isela Garcia,” Isela Garcia is not entitled to personal injury protection benefits from the policy of insurance issued by MERCURY to Irma Guzman. As a consequence, Plaintiff, as the alleged assignee of Isela Garcia, is not entitled to personal injury protection benefits from the policy of insurance issued byMERCURY.
12. Plaintiff alleges that MERCURY failed to prove that the vehicle owned by Isela Garcia was operable, a self-propelled vehicle with four or more wheels which is of a type both designed and required to be licensed for use on the highways of this State and that Isela Garcia was the “true and beneficial” owner of the vehicle. The Court respectfully rejects Plaintiff’s contention that it wasMERCURY’sburden to prove these things as none of these contentions or issues were raised by the Plaintiff in the Pleadings and, therefore, are not at issue in this lawsuit.
13. Pleadings frame the matters at issue. St. Paul Mercury Ins. Co. v. Coucher, 837 So. 2d 483 (Fla. 5th DCA 2002). Plaintiff never filed a Reply and Avoidance alleging any reason why Isela Garcia’s vehicle was not required to be insured (for example: yes, Isela Garcia owns a motor vehicle, but it was not operable at the time). A Reply and Avoidance is necessary when a “new matter is sought to be asserted to avoid [an] affirmative defense.” Reno v. Adventist Health Systems, et al., 516 So. 2d 63 (Fla. 2d DCA 1987). It is, in effect, an affirmative defense to an affirmative defense. Id. A Reply and Avoidance is necessary in order to place the other party on notice of the issues. Id.
14. As applied to this lawsuit, MERCURY was never placed on notice that Plaintiff was taking the position that the motor vehicle owned by Isela Garcia was not operable, was not a self-propelled vehicle with four or more wheels which is of a type both designed and required to be licensed for use on the highways of this state or that Isela Garcia was not the “true and beneficial” owner of the vehicle — or any one or combination of any of these possible defenses. MERCURY has a right to be placed on notice of Plaintiff’s position in order to appropriately prepare its defense to this lawsuit.
15. As Plaintiff never filed a pleading alleging that there was some reason why the motor vehicle owned by Isela Garcia was not required to be insured, it is not an issue in this lawsuit. Moreover, Plaintiff has not submitted any record evidence providing any basis as to why the motor vehicle owned by Isela Garcia was not required to be insured. Finally, Plaintiff has failed to provide any record evidence that the policy of insurance issued to Irma Guzman “inured to the benefit of Isela Garcia.”
16. Based upon the foregoing, Mercury Insurance Company of Florida’s Motion for Final Summary Judgment is granted and Final Judgment is entered in favor of the Defendant and against Plaintiff. Plaintiff shall go hence without a day. This Honorable Court retains jurisdiction to award any attorney fees and costs, if appropriate.
