18 Fla. L. Weekly Supp. 218a
Online Reference: FLWSUPP 1802AROC Insurance — Personal injury protection — Coverage — Insured has no PIP coverage where insurer sent required notices advising insured that she was required to maintain PIP coverage and that she did not have PIP coverage, but insured did not tender additional premiums required to amend policy to provide PIP coverage — Affidavit in opposition to motion for summary judgment is not considered where affidavit was not timely served on insurer by mail and was not properly served on insurer by facsimile
MIAMI MEDICAL CARE CENTER, INC., A/A/O VIVIAN AROCHENA, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 09-01426 CC 05. August 27, 2010. Honorable Bronwyn C. Miller, Judge. Counsel: Stuart B. Yanofsky, for Plaintiff. Majid Vossoughl, Majid Vossoughl, P.A., Miami, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT & FINAL JUDGMENTIN FAVOR OF DEFENDANT
THIS CAUSE came before the Court on the 1st day of September 2009 on Defendant’s Motion for Summary Judgment and was heard at 3:00 P.M. at Miami-Dade County Courthouse, 73 West Flagler Street, Miami, Florida 33130. This Court reviewed Defendant’s Motion for Summary Judgment and having heard argument from counsel for both parties and being otherwise fully advised in the premises, makes the following factual findings and conclusions of law.
FACTUAL FINDINGS & CONCLUSIONS OF LAW
1. Plaintiff’s Complaint claims to allege a cause of action for Personal Injury Protection (“PIP”) benefits under a policy of insurance issued by Defendant, United Automobile Insurance Company (“UNITED AUTO”), and as a result of an accident that occurred on 05/25/08.
2. The record evidence before the Court reflects that Vivian Arochena entered into an insurance contract with UNITED AUTO identified as Policy Number UAU 2044013 and that the effective dates of said policy was from 10/01/07 through 10/01/08. Further, the record evidence reflects that Vivian Arochena’s insurance contract with UNITED AUTO provided for Bodily Injury and Property Damage only and did not contain PIP coverage.
3. Fla. Stat. 627.7407(1) mandates that any person subject to the requirements of the Florida Motor Vehicle No-Fault Law, as revived and amended effective January 1, 2008 to maintain security for personal injury protection. The statute specifically places the burden on the insured to maintain PIP coverage and provides as follows:
(1) Any person subject to the requirements of ss. 627.730-627.7405, the Florida Motor Vehicle No-Fault Law, as revived and amended by this act, must maintain security for personal injury protection as required by the Florida Motor Vehicle No-Fault Law, as revived and amended by this act, beginning on January 1, 2008.
4. In turn, Fla. Stat. 627.7407(4) provides that an insurance carrier shall provide PIP coverage but only if the insured pays the required premium for such coverage. Fla. Stat. 627.7407(4) provides in pertinent part:
(4) Each motor vehicle insurer shall provide personal injury protection coverage to each of its motor vehicle insureds who is subject to subsection (1) beginning on January 1, 2008.With respect to a person who does not have a personal injury protection policy in effect on such date, the initial endorsement shall not be considered a new policy and shall be issued for a period that terminates on the same date as the person’s other motor vehicle insurance coverage. Except as modified by the insured, the deductibles and exclusions that applied to the insured’s previous personal injury protection coverage with that insurer shall apply to the new personal injury protection coverage. The insurer is not required to provide the coverage if the insured does not pay the required premium by January 1, 2008, or such later date that the insurer may allow.
5. In turn, Fla. Stat. 627.7407(5) provides that an insurance carrier shall provide notice of the provisions of Fla. Stat, 627.7407 to each insured and provides:
(5) No later than November 15, 2007, each motor vehicle insurer shall provide notice of the provisions of this section to each motor vehicle insured who is subject to subsection (1). The notice is not subject to approval by the Office of Insurance Regulation. The notice must clearly inform the policyholder:
(a) That beginning on January 1, 2008, Florida law requires the policyholder to maintain personal injury protection (“PIP”) insurance coverage and that this insurance pays covered medical expenses for injuries sustained in a motor vehicle crash by the policyholder, passengers, and relatives residing in the policyholder’s household.
(b) That if the policyholder does not maintain personal injury protection coverage, the State of Florida may suspend the policyholder’s driver’s license and vehicle registration.
(c) That if the policyholder already has personal injury protection coverage, that coverage will be amended effective January 1, 2008, to incorporate legally required changes without any additional premium and that the policyholder is not required to take any further action.
(d) That, if the policyholder does not currently have personal injury protection coverage, the current motor vehicle policy will be amended to incorporate the required personal injury protection coverage effective January 1, 2008.
(e) The additional premium that is due, if any, and the date that it is due, which may be no earlier than January 1, 2008.
(f) That if the policyholder has any questions, the name and phone number of whom they should contact.
6. The record evidence before the Court reflects that on 11/15/07 UNITED AUTO provided notice to Vivian Arochena in conformance with Fla. Stat. 627.7407(5) and that same was sent to the address reflected on the Original Policy Declarations; to wit, the notice was mailed to 11201 S.W. 55th Street, # 417, Hollywood, Florida 33025. This statutory notice provided to Vivian Arochena tracked the language prescribed by Fla. Stat. 627.7407(5) and provided in pertinent part:
IF YOU DO NOT CURRENTLY HAVE PIP COVERAGE
· your current motor vehicle policy can be amended, and will be amended, to incorporate the required PIP coverage effective January 1, 2008 if the required additional premium is paid, but this coverage will NOT go into effect UNLESS you pay the required additional premium on or before January 1, 2008;
· the additional premium that is due is 1063.00 and the date that it is due is January 1, 2008.
· NOTE: Under Florida law, United Auto is not required to provide PIP coverage if you do not pay the required premium by January 1, 2008.
7. Despite the foregoing, the record evidence before the Court reflects that Vivian Arochena did not tender any additional consideration and UNITED AUTO did not receive any additional premiums so as to have her policy amended to provide for PIP coverage.
8. In addition to the foregoing, the record evidence before the Court reflects that on 01/02/08, UNITED AUTO provided Vivian Arochena with an additional notice advising her of lack of PIP coverage. This notice provided:
This notice is being sent to inform you that:
Beginning on January 1, 2008, Florida law requires you to maintain personal injury protection (“PIP”) coverage that pays covered medical expenses for injuries sustained in a motor vehicle crash for you, passengers and relatives residing in your household.
IF YOU DO NOT MAINTAIN PIP COVERAGE, THE STATEOF FLORIDA MAY SUSPEND YOUR DRIVER’S LICENSEAND VEHICLE REGISTRATION.
YOU DO NOT CURRENTLY HAVE PIP COVERAGE!!!
· Your current motor vehicle policy can be amended to incorporate the required PIP coverage, if the required additional premium is paid. This coverage will NOT go into effect UNLESS you pay the required additional premium.
· NOTE: Under Florida law, UAIC is NOT required to provide PIP coverage If you do not pay the required premium.
IF YOU HAVE QUESTIONS, you must contact your insurance agent at the telephone number listed above. If you are unable to reach your insurance agent, call our Customer Service Department at (305) 940-5022 or (800) 521-2110.
9. Despite this secondary notice, the record evidence before the Court reflects that Vivian Arochena did not tender any additional consideration and UNITED AUTO did not receive any additional premiums so as to have her policy amended to provide for PIP coverage.
10. An insurance policy is a contract. Fla. Stat. 624.02. There is no PIP coverage since the insured failed to maintain PIP coverage as of January 1, 2008 as mandated by Fla. Stat. 627.7407(1). Vivian Arochena’s failure to maintain PIP as provided by Fla. Stat. 627.7407(1) prevents Plaintiff from seeking the benefit of a bargain for which Vivian Arochena never entered into as she did not make payments or consideration to UNITED AUTO for providing PIP. Accordingly, Plaintiff’s Complaint fails as a matter of law. Further, a cause of action for breach of contract has three elements: (a) a valid contract; (b) a material breach; and (c) damages. J.J. Gumberg Co., v. Janis Services, Inc., 847 So.2d 1048 (Fla. 4th DCA 2003). Plaintiff’s Complaint also fails as a matter of law since at the time of the alleged accident Vivian Arochena did not have a contract of Insurance with UNITED that provided PIP coverage. If there is no PIP coverage/contract, there can be no breach and Plaintiff’s Complaint fails as a matter of law.
11. Finally, as it pertains to the untimely affidavit of Vivian Arochena served by the Plaintiff, the Court declines to consider same as record evidence in opposition to Defendant’s Motion for Summary Judgment since same was not timely served by mail to Defendant in violation of Fla. R. Civ. Pro. 1.510(c) and not properly served by facsimile on the Defendant in violation of Fla. R. Civ. Pro. 1.080(b)(5). Lufthansa German Airlines Corp, v. Mellon, 444 So.2d 1066 (Fla. 3rd DCA 1066)(trial court well within its discretion in declining to consider untimely affidavit in violation of 1.510(c)); Florida Department of Financial Services v. Associated Industries Insurance Company, 868 So.2d 600 (Fla. 1st DCA 2004); Harris v. Wilson, 656 So.2d 512 (Fla. 1st DCA 1995); Coffman Realty, Inc., v. Tosohatchee Game Preserve, Inc., 413 So.2d 1 (Fla. 1982).
12. Accordingly, Defendant is entitled to judgment as a matter of law.
13. Based on this Court’s analysis set forth above, it is
ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is GRANTED. Final Judgment is hereby rendered in favor of Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, and against Plaintiff, MIAMI MEDICAL CARE CENTER, INC., A/A/O VIVIAN AROCHENA. Plaintiff shall take nothing from this action and Defendant shall go hence without day. The Court reserves jurisdiction to award Defendant attorney’s fees and costs, if applicable.
