16 Fla. L. Weekly Supp. 349b
Online Reference: FLWSUPP 164LOPES
Insurance — Personal injury protection — Coverage — Passenger — Ownership of vehicle registered in state — Where passenger owned a vehicle which was registered in Florida and required to have insurance on date of accident, passenger must seek PIP benefits from insurer of her own vehicle — No merit to argument that insurer has burden to prove operability of vehicle
SIX DOCTORS MEDICAL CENTER, INC. (a/a/o LILIANA LOPES), Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-02835 COCE 50, Civil Division. February 18, 2009. Peter B. Skolnik, Judge. Counsel: Mark Rosen, for Plaintiff. Reuven T. Herssein, Law Offices of Herssein & Herssein PA, North Miami, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE, having come before the Court, at a hearing on January 28, 2009, on Defendant’s Mpotion for Final Summary Judgment and the Court, having considered the record, having heard argument of counsel and being otherwise advised of the premises, it is hereby ORDERED AND ADJUDGED:
UNDISPUTED FACTS
1. The instant Personal Injury Protection (“PIP”) lawsuit was brought against PROGRESSIVE AMERICAN INSURANCE COMPANY (“PROGRESSIVE”) based upon an alleged breach of an automobile insurance contract between Alfred Shamshum, and PROGRESSIVE, due to a motor vehicle accident occurring October 3, 2004.
2. The claimant, Liliana Lopes, was a passenger traveling in Alfred Shamshum’s vehicle on the date of the accident, October 3, 2004.
3. Liliana Lopes, sought medical treatment from Six Doctors Medical Center Inc., “Plaintiff” for injuries she allegedly sustained in the accident, and Plaintiff submitted the claim to PROGRESSIVE.
4. Upon receipt of the claim, PROGRESSIVE, timely, investigated the claim and determined that Liliana Lopes owned an operable motor vehicle, registered in her name.
5. In fact, PROGRESSIVE’S investigation revealed that on October 3, 2004, Liliana Lopes owned a registered 2004 Chevrolet Cavalier VIN # 1G1JC12F347285737 as of March 2, 2004.
6. PROGRESSIVE’S investigation further revealed that this vehicle was NOT insured by PROGRESSIVE.
7. As the claimant owned her own registered vehicle at the time of the loss, PROGRESSIVE did not extend Liliana Lopes coverage under its policy of insurance with Alfred Shamshum and denied Plaintiff’s claim.
8. The instant PIP suit ensued from the denial of the claim.
9. Plaintiff’s Complaint alleges that the policy of insurance issued by PROGRESSIVE to Alfred Shamshum inured to the benefit of Liliana Lopes, despite the fact that Liliana Lopes owned a registered vehicle that was required by Florida Law to have insurance.
10. PROGRESSIVE filed its Amended Motion for Final Summary Judgment on September 5, 2008 and an Affidavit from its adjuster in support, attesting to the fact that Liliana Lopes was not insured under any insurance policy issued by PROGRESSIVE.
11. The Affidavit further attests that PROGRESSIVE’S investigation of the claim revealed that Liliana Lopes owned a registered vehicle in the State of Florida at the time of the accident.
12. PROGRESSIVE filed with the Court a certified copy, under seal, of the record of Liliana Lopes from the Division of Motor Vehicles Department of Highway Safety and Motor Vehicles which revealed:
a. That Liliana Lopes owned a registered 2004 Chevrolet Cavalier VIN # 1G1JC12F347285737 as of March 2, 2004.
b. That the 2004 Chevrolet Cavalier was registered to Liliana Lopes on October 3, 2004, the date of accident.
c. That the 2004 Chevrolet Cavalier was continually registered to Liliana Lopes from 2004 to 2006.
13. Plaintiff filed nothing in the Court record in opposition to PROGRESSIVE’S Amended Motion for Final Summary Judgment.
14. Pursuant to PROGRESSIVE’S adjuster Affidavit and the certified copy registration from the Division of Motor Vehicles Department of Highway Safety and Motor Vehicles, there is no genuine issue of material fact in dispute. PROGRESSIVE did not insure Liliana Lopes who owned a registered motor vehicle at the time of the motor vehicle accident and therefore was required to insure her registered vehicle.
FINDINGS OF LAW
15. Florida Statute §627.733, in pertinent part, states as follows:
(1) Every owner or registrant of a motor vehicle, other than a motor vehicle used as a taxicab, school bus as defined in s. 1006.25, or limousine, required to be registered and licensed in this state shall maintain security as required by subsection (3) in effect continuously throughout the registration or licensing period. [emphasis added]
16. Florida Statute 627.736(4) in pertinent part, states as follows:
(d) The insurer of the owner of a motor vehicle shall pay Personal Injury Protection benefits for:
(4) Accidental bodily injury 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]
17. Based upon the language of Florida Statute §627.733, the Court finds, that the owner of a registered motor vehicle in the State of Florida, must maintain automobile insurance, which includes PIP coverage.
18. Additionally, based upon the Florida Statute 627.736(4), the Court finds that the insurer, in this instance PROGRESSIVE, may have been required to pay this PIP claim, in the event that Liliana Lopes was not the owner of a motor vehicle. As Liliana Lopes was herself “the owner of a motor vehicle with respect to which security is required under ss. 627.730-627.7405”, PROGRESSIVE would not be responsible for the instant PIP claim.
19. Liliana Lopes must seek PIP coverage from the insurer of her vehicle, that was registered and required to have PIP insurance on the date of the accident in this case.
20. Further, PROGRESSIVE’S policy of insurance includes the following exclusion:
Coverage under this Part II (A) [PIP Benefits] will not apply to bodily injury:
5. to any person, other than you, if such person is the owner of a motor vehicle with respect to which security is required under the Florida Motor Vehicle No-Fault Law, as amended; [emphasis added]
21. Under the terms of the PROGRESSIVE policy of insurance, the exclusion clearly states that Liliana Lopes would NOT be afforded coverage in this instance, and would need to seek PIP coverage from the insurer of her registered vehicle.
22. There is no dispute that on October 3, 2004, Liliana Lopes was the owner of a registered motor vehicle in the state of Florida and, therefore, was required to maintain her own insurance, or if she did not, she is personally liable for payment of personal injury protection benefits. See Florida Statute §627.733.
23. Accordingly, neither Liliana Lopes nor the Plaintiff would be entitled to PIP benefits from the policy of insurance issued by PROGRESSIVE to Alfred Shamshum.
24. Furthermore, Plaintiff presented no record evidence to this Court in opposition to Defendant’s Motion for Final Summary Judgment and the undisputed facts and evidence.
25. Counsel for the Plaintiff argued that PROGRESSIVE must prove that the vehicle owned by Liliana Lopes was operable, and, therefore, required to be insured for use on the highways of this State.
26. However, this Court rejects Plaintiff’s contention that it was PROGRESSIVE’S burden to prove the operability of Liliana Lopes’s vehicle.
27. First, it is questionable as to how PROGRESSIVE could prove or disprove the operability of Liliana Lopes’s vehicle.
28. Secondly, PROGRESSIVE proved that Liliana Lopes owned a vehicle that was continuously registered in the State of Florida. Accordingly, by operation of law, Liliana Lopes was required to maintain PIP insurance on the vehicle. It is not PROGRESSIVE’s burden to prove that Liliana Lopes was in compliance with the law.
29. If Liliana Lopes was seeking coverage for this loss with PROGRESSIVE, it was Liliana’s burden to prove the vehicle that was registered and required to have insurance, was inoperable on the date of the loss, to obtain the coverage from PROGRESSIVE.
30. Moreover, the PROGRESSIVE policy exclusion applies in this case as it applies to a person who owns a motor vehicle required to be insured in the State of Florida. Liliana Lopes owned a motor vehicle that was registered and was required to have insurance.
31. The Plaintiff has put forth absolutely no evidence to support its contention that the vehicle may not have been operable at the time of the accident in this case.
32. Most importantly, Plaintiff has not submitted any record evidence providing any basis as to why the motor vehicle owned by Liliana Lopes was not required to be insured, and therefore, has failed to create any genuine issue of material fact.
33. Based upon the foregoing, PROGRESSIVE AMERICAN INSURANCE COMPANY’s Amended Motion for Final Summary Judgment is hereby
GRANTED
The Defendant shall go hence forth without day.
This Court reserves jurisdiction to tax attorney’s fees and costs.
