17 Fla. L. Weekly Supp. 682b

Online Reference: FLWSUPP 1708JEANInsurance — Personal injury protection — Coverage — Passenger — Spouse — Owner of another vehicle not insured during “gap period” — Where husband of insured was injured while passenger in wife’s vehicle during statutory gap period when law did not require and husband did not have PIP coverage, husband qualifies for coverage under wife’s policy as “any other person while occupying insured motor vehicle” and is not barred from coverage by exclusion for “owner of motor vehicle with respect to which security is required under Florida Motor Vehicle No-Fault Law” — Res judicata — Collateral estoppel — Decision of different county court finding that husband is excluded from coverage does not bar contrary decision in this case where cases involve same claimant and insurer, but different medical providers and different claims

ALL CARE HEALTH AND WELLNESS CENTERS, P.A., a Florida Corporation (assignee of Marcellus, Jean), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 008-25765CC23, Div. 05. March 30, 2010. Lisa Walsh, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, P.A., for Plaintiff. Karen Trefsger, for Defendant.

AFFIRMED at 20 Fla. L. Weekly Supp. 115a.

ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENTAS TO THE ISSUE OF COVERAGE

Introduction

This cause came before this Court on Plaintiff’s and Defendant United Automobile Insurance Company’s (“United”) Cross Motions for Summary Judgment on the issue of coverage. The claimant failed to obtain his own PIP coverage during the sunset or “gap” period during which the No-Fault statute expired and he was not required to carry PIP. His wife maintained optional PIP coverage in her policy with United. During the gap period, the claimant was injured in an accident while a passenger in his wife’s car. The issue presented is whether the claimant may recover PIP benefits under his wife’s policy with United.

United contends that under the revived tort immunity statute, Section 627.737, Florida Statutes (2008), because the claimant failed to obtain his own PIP coverage, he was barred from filing a PIP claim. United further argues that because this issue was ruled upon in its favor in a Broward case involving the same claimant but a different provider Plaintiff, this Court is bound under principles of res judicata and collateral estoppel by the Broward decision.

After a full hearing on March 4 and March 19, 2010, and review of all relevant motions and responses, the contents of the file and authorities, this Court concludes that where the claimant was covered under the terms of his wife’s policy with United, and where he was not required by law to obtain his own PIP coverage during the gap period, he was not barred from seeking PIP benefits through his wife’s policy. Accordingly, this Court grants Plaintiff’s motion for Summary Judgment.

Findings of Fact

1. This is an action for breach of contract under Florida’s motor vehicle bodily injury insurance or “PIP” statutes. The facts are undisputed. The claimant, Marcellus Jean, was allegedly injured in an accident on November 20, 2007, during the “gap” period or sunset of Florida’s PIP statutes. During this period, the claimant was not required to own personal injury protection insurance coverage. See Ch. 2007-324, § 21, at pp. 44-45, Laws of Florida (2007). The claimant was injured while a passenger in his wife’s car. His wife, Nadege Morel, owned a policy of insurance with United which did include optional PIP coverage. (Exhibit A to Defendant’s Motion, Policy Declarations Page)

2. The claimant was insured with Geico for his own vehicle (not involved in the accident), but opted not to obtain his own PIP coverage during the gap period.

Coverage

3. United argues that the tort immunity provision of the revived PIP statute, Section 627.737, Florida Statutes (2008), precludes Mr. Jean from recovering under his wife’s policy. The Defendant believes that because the Claimant chose not to obtain his own PIP coverage for his own vehicle — a vehicle that was not involved in the accident — he was not covered for PIP benefits under his wife’s policy for an accident while a passenger in her car. Therefore, the claimant was required to sue the other driver in tort.

4. The tort immunity provision upon which United relies was part of the No-Fault statute. The statute expired on October 1, 2007, and was thus not in effect at the time of the accident.¹

5. Because Mr. Jean did not have his own PIP policy in place at the time of the accident (as he was not required to purchase PIP coverage because no PIP statute was in place at the time he bought his Geico policy), and because the tort immunity statute was not in effect, this Court looks to the terms of the wife’s United policy to determine if the claimant was covered. This Court finds under the policy language that the Claimant was insured through his wife’s policy. The relevant sections provide:

PART E FLORIDA MOTOR VEHICLE NO FAULT LAW

* * *

SECTION I PERSONAL INJURY PROTECTION

The Company will pay, in accordance with the Florida Motor Vehicle No-Fault Law, to or for the benefit of the injured person:

(a) medical benefits — eighty percent of all medically necessary expenses . . . .

* * *

Incurred as a result of bodily injury caused by an accident arising out of the ownership, maintenance or use of a motor vehicle and sustained by:

(a) the named insured or any resident relative while occupying a motor vehicle or while a pedestrian through being struck by a motor vehicle; or

(b) any other person while occupying the insured motor vehicle, or while a pedestrian, through being struck by the insured motor vehicle.

(Plaintiff’s Exhibit 1) (emphasis added).

6. Mr. Jean qualifies as “any other person while occupying the insured motor vehicle,” and therefore, is covered under the wife’s policy. He was a passenger in his wife’s vehicle at the time of the accident.

7. Further, none of the exclusions from PIP coverage within the wife’s policy bars Mr. Jean from coverage. The relevant exclusions provide:

EXCLUSIONS

This insurance does not apply:

(e) to any pedestrian, other than the named insured or any resident relative, not a legal resident of the State of Florida; to any person, other than the named insured, 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;

(f) to any person, other than the named insured or any resident relative, who is entitled to personal injury protection benefits from the owner of a motor vehicle, which is not an insured motor vehicle under this insurance, or from the owner’s insurer.

(Plaintiff’s Exhibit 1)

8. Exclusion (e) does not apply. Because this accident occurred during the sunset period of the Florida No-Fault Law, Mr. Jean was not required by law to obtain a PIP policy. Therefore, he was not an “owner of a motor vehicle with respect to which security is required under the Florida Motor Vehicle No-Fault Law.” (emphasis added) No security was required during the gap period, when the accident occurred.

9. Exclusion (f) does not apply. Mr. Jean is not “entitled to personal injury protection benefits from the owner of a motor vehicle” which is either not part of the United policy or his own insurer. As explained above, Mr. Jean did not obtain PIP benefits for his own vehicle, and therefore, is not “entitled to benefits” from Geico. This exclusion was designed to ensure that each driver seeks PIP coverage under their own policy, before seeking benefits from the policy of the owner of the motor vehicle. Since under this unusual gap period the claimant was not required by law to obtain a PIP policy, he is not excluded from coverage under the wife’s policy under exclusion (f).

10. Accordingly, because Mr. Jean was covered under his wife’s policy, United is obligated to provide coverage for otherwise compensable medical benefits.

Res Judicata or Collateral Estoppel²

11. United next argues that this Court is bound by the decision of Judge Dishowitz, a Broward County Court Judge. In Hallandale Open MRI, LLC v. United Automobile Insurance Company, Case No. 09-004531 COCE 51, a case involving a different medical provider, the same claimant and the same Defendant, Judge Dishowitz granted final summary judgment for the Defendant United on the issue of coverage. (Defendant’s Motion, Exh. E) Judge Dishowitz ruled that because the policy incorporated the terms of the 2007 PIP statute, the law requiring PIP coverage applied to Mr. Jean, and his failure to obtain PIP coverage precluded recovery under his wife’s policy.

12. Judge Dishowitz’s conclusion that the policy revived the expired statute conflicts with the Legislature’s own pronouncement that the revived PIP statute does not apply prior to January 1, 2008. Ch. 2007-324, § 21, at p. 45, Laws of Florida (2007). If the Legislature deemed the statute inoperable prior to January 1, 2008, United may not take a position in its policy contrary to law to mandate PIP coverage.

13. Judge Dishowitz further opines that Mr. Jean was not covered because he was not listed in the policy as a resident relative or the named insured, and there was no statute extending coverage to him. However, as explained above, Mr. Jean was covered under the policy as “any person” injured while occupying the motor vehicle. Judge Dishowitz did not address this section of the wife’s policy.

14. United argues that right or wrong, this Court is bound under principles of res judicata or collateral estoppel by Judge Dishowitz’s order, and must enter summary judgment for the Defendant.³

15. Under the doctrine of res judicata:

A judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action.

Kimbrell v. Paige, 448 So. 2d 1009, 1012 (Fla. 1984). “[A] judgment on the merits will thus bar ‘a subsequent action between the same parties on the same cause of action.’” Florida Department of Transportation v. Juliano, 801 So. 2d 101, 105 (Fla. 2001) (quoting Youngblood v. Taylor, 89 So. 2d 503, 505 (Fla. 1956)). Here, there was no former suit between the parties. The causes of action and the parties differ.

16. In Judge Dishowitz’s case, another medical provider, Hallandale Open MRI, LLC, sued United for PIP benefits. Here, All Care Health and Wellness Centers, P.A. (“All Care Health and Wellness”) is the plaintiff. While the underlying claimant, Marcellus Jean, is the same patient in both cases, the cases and parties differ. The reason res judicata acts to bar parties from bringing a subsequent action is that the parties could have made all claims and arguments in the prior case. No litigant is entitled to a second bite at the apple. Because All Care Health & Wellness was not a party in the prior matter, it could not and therefore did not present the arguments made in this case. The doctrine of res judicata thus does not bar the current action and does not bind this Court.

17. Further, this Court is not collaterally estopped from reaching a different conclusion than Judge Dishowitz. Like the doctrine of res judicata, the doctrine of collateral estoppel requires that “the parties and issues be identical, and that the particular matter be fully litigated and determined in a contest which results in a final decision of a court of competent jurisdiction.” Department of Health and Rehabilitative Services v. B.J.M., 656 So. 2d 906, 910 (Fla. 1995). See also Dadeland Depot, Inc. v. St. Paul Fire and Marine Insurance Co., 945 So. 2d 1216, 1235 (Fla. 2006). The parties are clearly not identical. Again, because All Care Health and Wellness was not a party in the case before Judge Dishowitz, it could not obtain “a full and fair opportunity to litigate the issue in the earlier proceeding,” and thus, was not precluded from seeking summary judgment in its favor in this Court. See. I.A. Durbin, Inc. v. Jefferson National Bank, 793 F.2d 1541, 1549 (11th Cir. 1986) (quoted in Natural Answers, Inc. v. Carlton Fields, P.A., 20 So. 3d 884, 887 (Fla. 3d DCA 2009)).

Accordingly, this Court concludes that Marcellus Jean was covered for PIP benefits under his wife’s policy with United. This Court grants the Plaintiff’s Motion for Partial Summary Judgment on coverage.

__________________

¹Further, this Court rejects United’s argument that because the policy incorporated the pre-sunset statute, the statute was somehow revived and in effect by the language in the policy. This construction conflicts with the legislature’s pronouncement that “[t]his section does not apply the Florida Motor Vehicle No-Fault law, as revived an amended by this act, prior to January 1, 2008.” Ch. 2007-324, § 21, at p. 45, Laws of Florida (2007).

²The Plaintiff points out that the Defendant failed to plead res judicata or collateral estoppels as affirmative defenses, and thus, it would be error to grant summary judgment for the defendant on this ground. Although unnecessary, this Court addresses the merits of the Defendant’s argument.

³Principles of res judicata require dismissal of the instant action, not a favorable ruling for the Defendant on Summary Judgment. See Florida Department of Transportation v. Juliano, 801 So. 2d 101, 105 (Fla. 2001). The Defendant tacitly recognizes that the doctrine does not apply, because it does not seek and is not entitled to dismissal of this suit where the plaintiff never filed a prior suit.