16 Fla. L. Weekly Supp. 182a
Online Reference: FLWSUPP 162TAPLI
Insurance — Personal injury protection — Coverage — Medical expenses — Injury caused by physical contact with motor vehicle — Where insured injured knee and ankle when he slipped in ditch four feet away from vehicle while carrying brush to wood chipper attached to rear of vehicle, incident did not involve contact with vehicle and lacks necessary causal relation between injury and automobile to warrant coverage — Later pain experienced by insured while exiting vehicle was continuation from initial injury and does not qualify as separate injury for purposes of determining coverage
LINDSEY TAPLIS, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 8th Judicial Circuit in and for Alachua County. Case No. 01-07-CC-3164, Division IV. November 7, 2008. William E. Davis, Judge. Counsel: Steven Kalishman, Steven Kalishman, P.A., Gainesville, for Plaintiff. James B. Eubanks, James C. Rinaman, III & Associates, P.A., Jacksonville, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT RE: PIP COVERAGE
THIS CAUSE, came to be heard on October 16, 2008, on Defendant’s Motion for Summary Judgment re: PIP Coverage. Present before the Court appeared counsel for Defendant, James B. Eubanks, Esquire, with counsel for Plaintiff, Steven Kalishman, Esquire. Having considered the arguments of counsel, the record in this cause, all relevant authority, and being otherwise fully advised, the Court makes the following findings of fact and conclusions of law.
1. The Defendant insured the Plaintiff, LINDSEY TAPLIS (“Plaintiff”) under a policy of insurance that provides $10,000.00 in No-Fault/Personal Injury Protection (“PIP”) insurance benefits. The subject policy was in full force and effect on the date of loss.
2. Pursuant to the subject policy of insurance, the benefits are payable pursuant to the Florida Motor Vehicle No-Fault Law. The controlling statute is FLORIDA STATUTE § 627.736 (2006).
3. Specifically, FLORIDA STATUTE §§ 627.736(1) and (4)(d)(1), which state (in pertinent part):
(1) Every insurance policy. . .shall provide personal injury protection to the named insured, relatives 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) and paragraph (4)(d), to a limit of $10,000 for loss sustained by any such person as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle. . . . (Emphasis added)
(4)(d) The insurer of the owner of a motor vehicle shall pay personal injury protection for:
(1) Accidental bodily injury sustained in this state by the owner while occupying a motor vehicle, or while not an occupant of a self-propelled vehicle if the injury is caused by physical contact with a motor vehicle. (Emphasis added)
4. The issue for this Court’s determination is a legal issue as to whether the Plaintiff’s bodily injuries were caused by physical contact with a motor vehicle.
5. The undisputed facts of this case, as reflected by the Plaintiff’s deposition testimony, are that on February 23, 2006, the Plaintiff injured his left knee and left ankle as he slipped in wet ditch, while carrying brush to a chipper.
Q: Describe what you were doing when you felt the pain.
A: Describe what I was doing? I was going up the top bank of the ditch going around to the back of the chipper.
(Taplis Deposition, page 56-57, lines 25, 1-4).
Q: How far were you from the chipper when you felt the pain in your leg?
A: Maybe about four feet.
Q: How steep was the ditch you were going up?
A: Steep and unusual.
(Taplis Deposition, page 57, lines 11-15).
Q: Now, can you describe all areas of your left leg where you experienced pain at that moment?
A: Both sides of the knee.
Q: Anywhere else in your leg?
A: Ankle.
(Taplis Deposition, page 58, lines 3-7).
Q: How far away were you from the chipper and the truck when you first felt the knee pain?
A: Maybe about four feet.
Q: Did any part of your body strike the chipper or the motor vehicle when you first felt the left knee pain?
A: No.
Q: Did your left knee, left leg, left ankle any part of your left leg ever come in physical contact with the chipper or motor vehicle at any time on February 23, 2006?
A: No.
(Taplis Deposition, page 66, lines 7-18).
Q: Was it raining when you were carrying the brush and you felt the knee pain?
A: Yes.
(Taplis Deposition, page 67, lines 23-25).
Q: When you were going up the ditch was it slippery?
A: Just a little.
Q: When you felt sharp pain in your knee at any point prior to that or during that, did you slip at all?
A: A little.
(Taplis Deposition, page 68-69, lines 23-25; lines 1-4).
6. During the hearing, Plaintiff’s counsel presented several cases to establish compliance with the statutory requirements listed above in FLORIDA STATUTE §§ 627.736(1) and (4)(d)(1).
7. First, Plaintiff’s counsel presented Wesley Johnson v. State Farm Mutual Automobile Insurance Company, 645 So. 2d 16, Fla. 4th DCA, 1994 as persuasive authority. However, this Court finds the facts highly distinguishable from those at bar. Mr. Johnson’s neighbor was unloading a Christmas tree from the rear hatch-back of a motor vehicle while parked in his driveway, when Mr. Johnson walked into the hatch-back door injuring his head and requiring stitches. Johnson v. State Farm clearly meets the two statutory requirements for coverage: (1) use of a motor vehicle and (2) physical contact caused the injury, therefore coverage was granted.
8. Conversely, in this case at bar, Mr. Taplis admittedly never contacted the motor vehicle when incurring his injury and, in fact, slipped in a wet ditch approximately four (4) feet away from a wood chipper that was attached to the motor vehicle. (Taplis Deposition, page 66, lines 7-18).
9. In response, Defense counsel presented Underwriters Guarantee Insurance Company v. Elizabeth Gregory, 582 So. 2d 11, Fla. 3rd DCA, 1991 in which coverage was denied for failure to meet the same two requirements: (1) use of a motor vehicle and (2) physical contact caused the injury.
10. In Gregory, Plaintiff drove into a gas station, filled up her vehicle, went inside the station office to conclude her transaction and upon returning to her vehicle, she slipped on “greasy soap.” When she tried to stop her fall, her left hand and arm contacted the motor vehicle, and her back hit a tank platform. Subsequently, Ms. Gregory suffered injuries to her back. “According to Gregory’s own testimony, it was the ‘greasy soap’ which caused her to slip. On her descent, her arm did hit the van; however, her injury was not caused by physical contact with the van.” Id. As such, coverage was denied despite Gregory even having physical contact with the motor vehicle.
11. This Court recognizes the factual similarities between Gregory and the case at bar.
12. Traditional tort concepts of causation are to be considered part of the personal injury protection statute. The mere involvement of a motor vehicle is not enough. Causation is the necessary link that connects a plaintiff’s injuries to the physical contact and brings them within the statute. (Emphasis added). Underwriters Guarantee Insurance Company v. Elizabeth Gregory, 582 So. 2d 11, Fla. 3rd DCA, 1991.
13. Second, Plaintiff’s counsel presented Karl Blish v. Atlanta Casualty Company, 736 So. 2d 1151, Fla. 1999.
14. A closer look at Blish reveals that the Supreme Court of Florida, while granting coverage to Mr. Blish under his set of facts, was also aware of the potential slippery slope of awarding coverage “where the motor vehicle was the mere situs of an unrelated injury-causing event. . . .” (Emphasis added) Id. at 1154
15. “It is not enough that an automobile be the physical situs of an injury or that the injury occur incidentally to the use of an automobile, but that there must be a causal connection or relation between the two for liability to exist.” Id.
16. Judge Anstead, in a concurrence with the ruling in Blish, makes a pertinent factual distinction that sheds appropriate light on the case at bar. Judge Anstead references the facts in Government Employees Insurance Co. v. Novak, 453 So.2d 1116 (Fla. 1984) where a woman was awarded PIP coverage after being shot by an assailant while occupying her vehicle and preparing to back up.
17. Judge Anstead poses the hypothetical, “suppose Ms. Novak was accosted when she was within a foot or two of her vehicle, with keys in hand, and shot when she refused to give her assailant her keys. Would it be contended that PIP benefits are applicable? Of course not. Then the only difference between the assumed facts and the ones at hand (in Blish) is the situs of the attack, and the mere fact that the attack took place when Ms. Novak was in the automobile does not result in the attack having arisen out of the ownership, maintenance or use of the automobile.”
18. Similarly, in the case at bar, Mr. Taplis’ injury occurred incidentally to the use of the automobile, and the incident lacks the necessary causal connection or relation between both the injury and the automobile to warrant coverage.
19. Finally, Plaintiff’s counsel relies upon a chronologically second painful event to Mr. Taplis’ same left knee and ankle as Mr. Taplis exits the motor vehicle, as a new injury, therefore giving rise to coverage.
20. However, in light of Mr. Taplis’ sworn testimony, the Court is not persuaded. The pain experienced by Mr. Taplis as he exited the vehicle was simply a continuation from the initial injury and would not qualify as a separate injury for the purpose of determining coverage.
21. Therefore, this Court finds there are no genuine issues as to any material facts. The evidence is clear that Plaintiff’s injury did not meet the statutory requirements of FLORIDA STATUTE §§ 627.736(1), (4)(d)(1) to warrant PIP coverage.
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff, LINDSEY TAPLIS, take nothing by this action and Defendant PROGRESSIVE EXPRESS INSURANCE COMPANY, shall go hence without day. This Court retains jurisdiction for the purpose of determining any motion by Defendant to tax attorney’s fees and costs.
