16 Fla. L. Weekly Supp. 974a
Online Reference: FLWSUPP 1610ATKI
Insurance — Personal injury protection — Coverage — Passenger residing with person who owns motor vehicle must first look to household member’s PIP policy for coverage — However, because failure of household member to have required insurance on vehicle does not bar injured passenger from seeking coverage under driver’s policy, to prevail on summary judgment insurer must show existence of household member’s policy, not merely that household member owns vehicle that should have been insured
SOUTH FLORIDA REHABILITATION & WELLNESS CENTER (a/a/o Patricia Atkinson), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-17917 COCE 53. August 12, 2009. Robert W. Lee, Judge. Counsel: Russel M. Lazega, North Miami. Russell S. Kolodziej, Miami.
ORDER DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT RE: NO COVERAGE
THIS CAUSE came before the Court on July 21, 2009 for hearing of the Defendant’s Motion for Final Summary Judgment re: No Coverage, and the Court’s having reviewed the motions and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, finds as follows:
Background. In this PIP case, the Defendant has asserted that the claimant, Patricia Atkinson, is not entitled to coverage under the named insured’s policy because she was residing with a relative who owned other motor vehicles at the time of the accident.
The insurance policy at issue in this case was issued in the name of Denise Fuller. Atkinson was a passenger in Fuller’s vehicle at the time of the accident. Atkinson, however, resided with her brother and sister at that time, each of whom owned a vehicle. The Defendant argues that because Atkinson was a resident relative of her sister and brother, who were the owners of vehicles at the time of the loss, she must claim any benefits under their policies rather than United’s policy.
Conclusions of Law. Under Florida Statute §627.736(1), a passenger injured in an automobile accident must first look to the policies of “residents residing in the same household.” Here, the Defendant has demonstrated without material dispute that Atkinson was, at the time of the accident, residing with other household members who owned motor vehicles at the time of the loss. Accordingly, she must first look to their policies for coverage.
The Plaintiff has filed the affidavit of Patricia Atkinson, which it argues demonstrates a disputed issue of material fact. In paragraph 4 of her affidavit, Atkinson asserts that “[a]fter consulting with my brother and sister as to the auto insurance on their respective vehicles, they advised me they would not disclose their insurance information to me because they ‘did not want to be involved.’ ” Later, in paragraph 5 of the same affidavit, Atkinson averred that she “only recently became aware that neither my sister’s BMW nor my brother’s Ford truck were insured on 4-5-08.” These statements are hearsay, and as such, are not admissible for purposes of contravening a summary judgment motion. See Rule 1.510(e) (affidavits must “set forth such facts as would be admissible in evidence”).
Nevertheless, the affidavit of Atkinson raises the question of whether the lack of coverage is demonstrated by the existence of resident household members who own vehicles at the time of the loss, or whether instead it is demonstrated by showing the existence of insurance policies covering these vehicles. While United has demonstrated the former, it has not demonstrated the latter.
Under Florida PIP law, the failure of a resident household member to have required insurance does not bar the injured party from seeking coverage under the driver’s policy. See Witko v. Liberty Mutual Ins. Co., 348 So.2d 52, 53 (Fla. 4th DCA 1977). As a result, if neither Atkinson’s brother nor sister maintained the required insurance, Atkinson could properly look to the United policy for coverage. Because the statute is triggered by the existence of a policy, rather than mere residency, the Court holds that, for purposes of summary judgment, the Defendant must show the existence of a household member’s policy, not merely that the household member owned a vehicle that should have been insured. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion for Final Summary Judgment is DENIED.
