17 Fla. L. Weekly Supp. 1045a

Online Reference: FLWSUPP 1710MASS

Insurance — Personal injury protection — Declaratory judgment — Coverage — Demand letter was not required prior to filing complaint seeking declaration as to PIP coverage but not seeking to recover benefits — Injury to insured that occurred when loading ramp fell off bed of pickup truck while insured was backing lawnmower out of truck bed is loss covered under PIP policy

STEVEN KEITH MASSAGEE, Plaintiff, vs. MGA INSURANCE COMPANY, INC., Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 08-CC-1370. June 30, 2010. Donald L. Marblestone, Judge. Counsel: Thomas Andrew Player, Weiss legal Group, P.A., Maitland, for Plaintiff. Hanton Walters, Dutton Law Group, P.A., Tampa, for Defendant.

FINAL ORDER ON PLAINTIFF’S AND DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT

This action for declaratory judgment came before the court on May 6, 2010, on competing motions for summary judgment filed by both the Plaintiff and the Defendant.

STATEMENT OF FACTS

The facts relevant to both parties’ motions are not in dispute and are supported by the record before this court. This action for declaratory judgment was brought by the Plaintiff, Steven Keith Massagee (“Massagee”), pursuant to § 86, Fla. Stat. (2007) to determine the applicability of no-fault coverage to his losses. At all times material hereto, Massagee owned a 2001 Chevrolet Silverado pickup truck (“the Truck”) which was insured under a policy of motor vehicle insurance coverage (“the Policy”) issued by the Defendant, MGA Insurance Company, Inc. (“MGA”). The Policy included personal injury protection and property damage liability benefits as required by Florida Law. The policy also included bodily injury, uninsured motorist, comprehensive, and collision coverage.

On September 16, 2006, Massagee transported a riding lawn mower in the bed of the Truck. While backing the lawn mower off of the Truck, one of the loading ramps fell from the bed of the Truck, causing the lawn mower to fall from the bed of the Truck and onto Massagee (“the Accident”). As a direct and proximate result of the Accident, Massagee sustained personal injuries, loss of income, and incurred liability for damage to the lawn mower, which was owned by a third party.

Massagee notified MGA of the Accident and submitted a claim for his losses. MGA, denied coverage for Massagee’s claim for the stated reason that pursuant to § 627.736(4)(d)(1), Fla. Stat. (2006), Plaintiff’s claim was not for a covered loss. § 627.736(4)(d)(1), Fla. Stat. (2006), states:

The insurer of the owner of a motor vehicle shall pay personal injury protection benefits for . . . [a]ccidental bodily injury sustained in this state by the owner while occupying a motor vehicle, or while not the occupant of a self-propelled vehicle if the injury is caused by physical contact with a motor vehicle.

§ 627.736(4)(d)(1), Fla. Stat. (2006) (emphasis added).

MGA’s denial of coverage was based on the assertion that Plaintiff was operating the lawn mower at the time of the Accident and therefore coverage was excluded by the foregoing statutory language. Massagee then filed this action for declaratory judgment, pursuant to Chapter 86, Fla. Stat. (2008), to determine coverage.

MGA filed a motion to dismiss Massagee’s complaint based on the assertion that this action for declaratory judgment is “a dispute over personal injury protection benefits” such that Massagee was required, and failed, to serve a pre-suit demand letter in accordance with § 627.736(1), Fla. Stat. (2008). It is undisputed that Massagee did not submit a pre-suit demand letter prior to filing suit. MGA never called its motion to dismiss for hearing, but later made the same allegations and arguments in its motion for summary judgment.

Massagee also filed a motion for summary judgment in which he asserted that application of the controlling statutory and case law to the undisputed facts of this case requires this court to find that the Accident is a covered loss under the Florida No-Fault Law and the terms of the Policy.

LEGAL ANALYSIS

Summary judgment should be rendered when the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c).

I. Defendant’s Motion for Summary Judgment.

MGA asserts in its motion for summary judgment that Massagee was required by section 627.736(10), Fla. Stat. (2008) to serve MGA with a pre-suit demand letter as a condition precedent to bringing this action for declaratory judgment to determine whether the Accident is a covered loss under the personal injury protection coverage of the Policy.

Section 627.736(10), states in pertinent part:

Demand Letter —

(a) As a condition precedent to filing any action for benefits under this section, the insurer must be provided with written notice of an intent to initiate litigation.

Disagreements concerning coverage under insurance policies are proper subjects for a declaratory judgment. Tindall v. Allstate Ins. Co., 472 So. 2d 1291, 1292 (Fla. 2d DCA 1985), citing, Tavares v. Allstate, 342 So. 2d 551 (Fla. 3d DCA 1977); Perez v. State Automobile Insurance Association, 270 So. 2d 377 (Fla. 3d DCA 1972).

However, at the summary judgment hearing, MGA argued that in spite of MGA’s denial of coverage, this is actually an action for PIP benefits which should have been brought as a breach of contract action and for which a statutory pre-suit demand letter was required.

Massagee argued that he was only seeking a declaration of coverage in this action pursuant to Chapter 86, Fla. Stat., and could not properly bring a breach of contract action for PIP benefits because coverage had been denied in its entirety and it was not possible to prospectively know, in the event of a positive determination of coverage by the court, whether MGA would subsequently deny the claim for benefits under that coverage. Massagee noted that no assertion had been made by MGA that the claim itself was not otherwise compensable, apart from the denial of coverage.

Massagee’s complaint for declaratory relief generally discusses his PIP claim as a factual predicate for explaining the denial of coverage for which he seeks declaratory judgment, but the complaint does not seek PIP benefits for any specific claim or assert a prayer for any monetary relief. Massagee’s action for declaratory judgment seeks only a determination as to whether coverage under the PIP portion of his policy is available given the facts of this loss.

The Ninth Circuit Court, sitting in its appellate capacity, recently addressed this issue in Jacqueline Acosta v. Mercury Ins. Co. of Florida, 15 Fla. L. Weekly Supp. 868a (Fla. 9th Cir. Ct. May 7, 2008). In that case, Acosta asserted that she filed an action for declaratory judgment because she was in doubt as to her rights and/or obligations under the insurance policy, particularly since Mercury had not extended coverage before the lawsuit was filed. Acosta’s complaint requested relief in the form of a declaratory judgment requiring Mercury to extend PIP coverage, not PIP benefits. Significant to the instant case and MGA’s arguments herein, the Acosta court held that contrary to Mercury’s position, Acosta’s mere statements regarding unpaid PIP benefits did not automatically transform her declaratory judgment action under Chapter 86, Florida Statutes, into an action for PIP benefits under Chapter 627.736, Florida Statutes. The Acosta court held that a demand letter was not required prior to initiating the action because Acosta did not file an action to recover PIP benefits, but rather an action for a declaration as to coverage. Although this sister court’s opinion is not binding upon this court, the analysis therein is sound and persuasive.

The Eighteenth Circuit Court, sitting in its appellate capacity, also addressed this issue in New Hampshire Indemnity Ins. Co. v. Rural Metro Ambulance a/a/o William Zaniboni, 13 Fla. L. Weekly Supp 573a (Fla. 18th Cir. Ct. November 18, 2005). In Zaniboni, the court held “[t]his Court rejects [New Hampshire Indemnity]’s argument that [Rural Metro] failed to give proper notice of its intent to initiate litigation as mandated by section 627.736(11)¹, Florida Statutes. The cause of action under review is a declaratory relief action under Chapter 86, Florida Statutes. This appeal does not address an action for benefits requiring a demand letter.” This is the exact argument advanced by MGA in the instant case. Although the substantive holding of Zaniboni, dealing with a claimant’s right to obtain certain policy and claim information pre-suit, was abrogated by Progressive Am. Ins. Co. v. Rural/Metro Corp., 994 So. 2d 1202 (Fla. 5th DCA 2008), the portion of Zaniboni addressing the pre-suit demand letter was not disturbed. This court is within the Eighteenth Circuit and therefore bound by the decision in Zaniboni. See, Fieselman v. State, 566 So. 2d 768 (Fla. 1990); Pardo v. State, 596 So. 2d 665 (Fla. 1992). This court is required to follow the binding authority of Zaniboni and must therefore reject MGA’s argument.

Further, irrespective of the Zaniboni and Acosta decisions, this court reaches the same conclusion based on the rules of statutory construction. Section 627.736(10), Fla. Stat. (2008) states “[a]s a condition precedent to filing any action for benefits under this section, the insurer must be provided with written notice of an intent to initiate litigation.” (emphasis added). When a statute’s language is plain and unambiguous, there can be no resort to statutory construction. Court’s are without power to construe an unambiguous statute, and should not question the wisdom of a statute but instead apply the statute according to the Florida Legislature’s direction. Metro. Cas. Ins. Co. v. Tepper, 2 So. 3d 209, 213 (Fla. 2009), citing, Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 454-55 (Fla. 1992). When considering the meaning of terms used in a statute, this court looks first to the terms’ ordinary definitions. Tepper, 214. Massagee’s claim is neither an action for benefits, nor brought under § 627.736, Fla. Stat. (2008), and therefore under the plain and unambiguous language of the statute, Massagee was not required to serve a pre-suit demand letter as a condition precedent to filing this action.

II. Plaintiff’s Motion for Summary Judgment.

MGA’s denial of-coverage was based on the assertion that Plaintiff was operating the lawn mower at the time of the Accident and therefore coverage was excluded by § 627.736(4)(d)(1), Fla. Stat. (2006). MGA would be correct that there is no PIP available for a lawn mower if, for example, Massagee had been struck by a vehicle while riding the mower; however, that is not Massager’s position and not the facts of this case. The controlling statute, section 627.736(1), Fla. Stat. (2006), requires that motor vehicle insurance policies issued in Florida provide personal injury protection benefits for bodily injury “arising out of the ownership, maintenance, or use of a motor vehicle:”

627.736 Required personal injury protection benefits . . .

(1) REQUIRED BENEFITS. Every insurance policy complying with the security requirements of s. 627.733 shall provide personal injury protection to the named insured . . . 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 . . .

§ 627.736, Fla. Stat. (2006) (emphasis added).

Massagee asserts that the Accident is a covered loss pursuant to the fact that his claim arose “out of the ownership, maintenance, or use of a motor vehicle” pursuant to § 627.736(1), Fla. Stat. (2006), as the transportation and unloading of the lawn mower was a use of the Truck which led to the Accident, and in this context the lawn mower was incidental to, or inextricably intertwined with, that use. Massagee is not seeking PIP benefits for use of the lawn mower, but rather for use of the Truck used to transport the lawn mower.

The overarching principle applicable to this claim is that the Florida no-fault laws are to be liberally construed in favor of coverage. The specific statutory language which provides for payment of benefits for injuries arising out of the “ownership, maintenance, or use” of a motor vehicle has historically been very broadly interpreted by the Florida courts.

In 1984, the Supreme Court of Florida in Government Emples. Ins. Co. v. Novak, 453 So. 2d 1116 (Fla. 1984) addressed the phrase “ownership, maintenance, or use” and explained that the phrase “arising out of” meant that there must be “some nexus” between the motor vehicle and the injury. The court stated, “construction of the clause ‘arising out of the use’ of a motor vehicle is an [easy) matter. It is well settled that ‘arising out of’ does not mean proximately caused by, but has a much broader meaning. All that is required is some nexus between the motor vehicle and the injury.” Novak, at 1119. The court went on to explain that “some nexus” was to be given liberal construction to effectuate the intent of the legislature to extend coverage broadly, stating, “the clause arising out of the use of a motor vehicle is framed in such general, comprehensive terms in order to express the [legislative] intent to effect broad coverage. Such terms should be construed liberally because their function is to extend coverage broadly.” Id.

Following the Supreme Court’s announcement in Novak, the Supreme Court further clarified its definition of “some nexus” in 1985 in Hernandez v. Protective Casualty Ins. Co., 473 So. 2d 1241 (Fla. 1985) by delineating between situations in which the vehicle was the mere physical situs of the injury and those situations in which a causal connection existed between the automobile and the injury. Following the Hernandez decision, both the Supreme Court and the district courts applied the situs vs. nexus rules to find coverage where there was some causal connection or relation between the vehicle and the injury and deny coverage where the motor vehicle was the mere situs of an unrelated injury-causing event. The results, under these standards, were not consistent, resulting in the Supreme Court of Florida again addressing this issue in Blish v. Atlanta Cas, Co., 736 So. 2d 1151 (Fla. 1999).

In Blish, Mr. Blish was on his way home from a co-workers house when his vehicle suffered a tire blowout. Mr. Blish pulled over to change the tire and was attacked by several assailants who choked and beat him and stole money out of his wallet. Following an emergency room visit for a ruptured spleen, Blish filed a claim for PIP benefits under his auto policy and his claim was denied. Blish at 1152. The county court granted summary judgment to Blish’s insurer. Id.

The circuit court, sitting in its appellate capacity, reversed, ruling that Blish had established a sufficient nexus between his use of the truck and his injuries. Blish at 1153. The District Court reversed, concluding the attackers had made no effort to possess or use Blish’s truck. Id.

The Supreme Court granted review, based on conflict with their previous rulings in Hernandez and Novak. The Blish court ultimately found that the district court had erred in its reasoning and there was in fact a sufficient nexus between the maintenance and use of the vehicle and the resulting injury to justify PIP coverage. Id.

In reaching its conclusion, the Supreme Court noted:

Legislative intent . . . is the polestar that guides an inquiry under section 627.736(1). Thus, as noted above, the language of the statute must be liberally construed in order to effect the legislative purpose of providing broad PIP coverage for Florida motorists.

. . .

Second, a key issue in deciding coverage is whether the type of injury sustained by the insured was reasonably foreseeable in the minds of the contracting parties. Court’s should ask, is the injury a reasonably foreseeable consequence of the use (or the ownership, or the maintenance) of the vehicle?

Blish at 1155.

In answering their own question in the affirmative and thereby extending coverage to Mr. Blish, the Supreme Court noted that Blish’s injuries were an unfortunate, but eminently foreseeable consequence of the use and maintenance of his truck. Further, the court noted that “insurance companies were placed on notice at the time of enactment of section 627.736(1) — and certainly by the time that Novak and Hernandez were decided — that the statute contemplates broad coverage.” Id.

It is within the scope of declaratory actions for the court to determine facts affecting the applicability of a right, such as the right to PIP coverage in the instant case. Higgins v. State Farm Fire & Cas. Co., 894 So. 2d 5, 12 (Fla. 2004) (courts have the general power to issue declaratory judgments not only in suits seeking a determination of the existence or nonexistence of any immunity, power, privilege, or right but also in suits solely seeking a determination of any fact affecting the applicability of an immunity, power, privilege, or right).

In the instant case, clearly an accident occurring when removing the payload from a pickup truck is reasonably foreseeable. It is of no consequence that the payload was a riding mower; it could have been a wheelbarrow, or a crate of oranges, or any of the innumerable things that one may typically carry in the bed of a pickup truck. The breadth of foreseeable, and therefore covered, losses is illustrated by the numerous Florida courts that have addressed this issue. For example, in the Blish case, as noted above, the insured was attempting to change his truck tire on the side of the road when he was attacked and robbed, resulting in a ruptured spleen. Blish, at 1152. In other examples, varied injuries were found to be covered losses: See, e.g. Hernandez v. Protective Casualty Ins. Co., (Supra)(finding PIP coverage where driver was pulled over for traffic infraction and was injured during ensuing arrest); Government Emples. Ins. Co. v. Novak, (Supra)(finding PIP coverage where driver was approached by stranger, shot in face, and pulled from car, and assailant drove away in the car); Johnson v. State Farm Mut. Auto. Ins. Co., 645 So. 2d 16 (Fla. 4th DCA 1994) (injury occurred when the claimant’s neighbor left his rear car door opened and extended out over the sidewalk while he was unloading a Christm’as tree, and the claimant accidentally walked into the car door) Milgram v. Allstate Ins. Co., 731 So. 2d 134 (Fla. 1st DCA 1999) (injuries resulting from a battery inflicted, outside of the vehicle, by a person who became enraged over the operation of the vehicle by the driver); Auto-Owners Ins. Co. v. Pridgen, 339 So. 2d 1164 (Fla. 2d DCA 1976) (insured attempting to wire up the tail light from his jeep to his boat trailer when the boat and trailer tipped forward and sandwiched his hand between the trailer and the jeep light); Allstate Ins. Co. v. Jackson, 463 So. 2d 538 (Fla. 2d DCA 1985) (insured injured when he was standing outside a motor home and reached inside to repair a refrigerator, which spewed liquid coolant into his eyes); State Farm Mut. Auto. Ins. Co. v. Barth, 579 So. 2d 154 (Fla. 5th DCA 1991) (finding coverage where insured was waiting in driver’s seat in mall parking lot when stranger opened passenger door, got in front seat, said, “drive bitch,” beat driver when she refused, exited car, got in another car, and drove away); Quarles v. State Farm Mut. Auto. Ins. Co., 533 So. 2d 809, 810 (Fla. 5th DCA 1988) (unexpected discharge of a shotgun resulting in accidental death from a wound to the head of an individual standing next to a pickup truck in which another individual was attempting to unload the shotgun from a gun rack within the vehicle); Gov’t Employees Ins. Co. v. Batchelder, 421 So. 2d 59, 60 (Fla. 1st DCA 1982) (passenger in a pickup truck who suffered a serious eye injury when a beer bottle exploded, sending fragments of glass throughout the cab of the truck).

The loading, transporting, and unloading of the lawn mower from the pickup truck falls within the broad parameters of the “ownership, maintenance, or use” of a motor vehicle for which PIP coverage applies. Application of the law to the undisputed facts of this case clearly shows that Massagee is entitled to PIP coverage under the policy. IT IS ADJUDGED that:

1. Defendant’s Motion for Summary Judgment is DENIED;

2. Plaintiff’s Motion for Summary Judgment is GRANTED; all doubts about Plaintiff’s right to coverage under the Policy are resolved in favor of Plaintiff, and this court declares that under the undisputed facts presented, Plaintiff is entitled to personal injury protection coverage for the Accident.

__________________

¹Section 627.736(11), Fla. Stat. was superseded by § 627.736(10), Fla. Stat. (2008) in the revived and reenacted PIP statute, but is substantively identical with the exception that the 2008 statute extended the time an insurer has to respond to the pre-suit demand from 15 to 30 days.