18 Fla. L. Weekly Supp. 261a
Online Reference: FLWSUPP 1803MILL
Insurance — Personal injury protection — Coverage — Resident relative of insured — Error to enter summary judgment in favor of insurer of vehicle in which claimant was traveling when injured after determining that claimant, who lived with mother and did not own any vehicle, was covered under mother’s policy as resident relative where copy of mother’s policy submitted to court was never authenticated as policy in effect at time of accident
MILLENNIUM DIAGNOSTIC IMAGING CENTER, a/a/o Yusniel Marrero, Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Dade County. Case No. 09-137 AP. L.T. Case No. 05-1712 SP 25. January 20, 2011. An appeal from the County Court for Miami-Dade County. Jacqueline Schwartz, Judge. Counsel: Marlene S. Reiss, Law Offices of Marlene S. Reiss, P.A. for Appellant. Kimberly A. Hill, Roig, Tutan, Rosenberg, & Ziotnick, P.A., for Appellee.
(Before COHEN, CYNAMON, and SAMPEDRO-IGLESIA, JJ.)
(COHEN, Judge.) In this Personal Injury Protection (“PIP”) case, Millennium Diagnostic Imaging Center was the valid assignee of Yusniel Marrero (“Appellant” or Marrero), who claims PIP benefits under a State Farm (“Appellee”) policy that covered a vehicle in which Marrero was traveling when that vehicle was involved in a car accident. The vehicle belonged to Mr. Marrero’s friend. The facts are undisputed that at the time of the accident, Marrero resided with his mother and did not own a car. His mother owned three cars, one of which was insured by United Auto at the time of Marrero’s accident. A duly authenticated declaration page verifying PIP coverage on Marrero’s mother’s car at the time of the accident was submitted to the court at the Summary Judgment hearing. A United policy was also submitted to the court by State Farm, but was never authenticated as the actual policy in effect at the time of the accident.
Upon taking Marrero’s Examination Under Oath (“EUO”), it was determined that at the time of the accident Marrero did not own a car; he resided with his mother who owned a car insured by United. State Farm moved for Summary Judgment on the issue of coverage claiming that United was responsible for Marrero’s claims. State Farm obtained an affidavit of a United underwriter who testified that Marrero’s mother was covered by United at the time of the accident, and authenticated the declaration page of Yusniel Marrero’s mother’s policy showing that she was, indeed, insured by United at the time of the accident. The underwriter did not, however, authenticate the actual insurance policy or provide sworn testimony as to entitlement to coverage. The unauthenticated insurance policy provided coverage for “resident relatives” not otherwise insured. At the Summary Judgment hearing, Millennium, the assignee, provided no affidavits and/or documents in opposition to State Farm’s motion. Based on the EUO, the United declaration page, the unauthenticated insurance policy and statutory language in section 627.736(4)(d)4.b. of the Florida Statutes, the trial court entered a summary judgment in State Farm’s favor. While the trial court correctly interpreted the law, we reverse because the policy was never authenticated as the policy in effect at the time of the accident thus covering Marrero’s mother’s automobile. Without policy language providing coverage, the trial court was unable to definitively determine that section 627.736(4)(d)4.b. was apposite to this situation.1
Summary judgment is properly granted where the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c); Moore v. Morris, 475 So. 2d 666 (Fla. 1985). If the record reflects the existence of any issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue may exist, summary judgment is improper. Pennco, Inc. v. Meritor Savings, 617 So. 2d 739 (Fla. 2d DCA 1993).
Millennium correctly argues that State Farm failed to demonstrate on Summary Judgment that no genuine issue of material fact existed as to Marrero’s “entitlement” to coverage pursuant to United’s policy, and that the declaration page alone does not demonstrate entitlement to coverage, but simply that Marrero’s mother’s car was covered by a United PIP policy at the time of the accident. Since the actual policy was never authenticated, there was no evidence proffered as to Marrero’s entitlement to coverage pursuant to the policy.
Florida Statute 627.736(4)(d)4.b. provides, in pertinent part:
(d) the insurer of the owner of a motor vehicle shall pay personal injury protection benefits for:
4. Accidental bodily injury sustained 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; or
b. Entitled to personal injury benefits from the insurer of the owner or owners of such a motor vehicle.
Florida Statute 627.736(4)(d)4.b. (Emphasis Added.)
Accordingly, State Farm had the burden of providing the trial court with an authenticated United policy providing coverage to a “resident relative” who does not, otherwise, own a car. Indeed, if the unauthenticated United policy relied upon by State Farm can be shown on remand to be the policy in effect at the time of the accident, then State Farm is correct in its assertion that United is responsible for coverage.2
Case law reading polices with similar language, and in conjunction with Florida Statute 627.736(4)(d)4.b. have found coverage for “resident relatives” who are not otherwise insured. In Whitaker v. Allstate Insurance Co., 363 So. 2d 856 (Fla. 4th DCA 1978), the Fourth District Court of Appeal held that the statutory language, “provided the relative at the time of the accident is domiciled in the owner’s household and is not himself the owner of a motor vehicle. . .,” was unambiguous. In a case factually similar to the case at bar, the Fifth District Court of Appeal held, construing 627.736(4)(d)(4), that an injured pedestrian who did not own a car and who lived with her mother, was entitled to PIP coverage under the mother’s policy. Travelers Ins. Co. v. Furlan, 408 So. 2d 767 (Fla. 5th DCA 1982). Similarly, the First District Court of Appeal has held that a relative who did not own a motor vehicle, and who lived with the insured, was “entitled” to PIP coverage under the insured’s policy. Colson v. General Insurance Co., 423 So. 2d 494 (Fla. 1st DCA 1982). Cf. State Farm Mutual Insurance Co. v. Fischer, 16 So. 3d 1028 (Fla. 2d DCA 2009) [34 Fla. L. Weekly D1833b] (policy which extended coverage to resident relatives of the insured unambiguously did not cover the insured’s son because he did not live at the same residence as the insured).
Had State Farm provided an authenticated insurance policy containing the exact language in the policy quoted above, summary judgment would have been merited based on the statute, the unambiguous language in the policy, and the affidavits evidencing that Marrero resided with his mother at the time of the incident.
Accordingly, the summary judgment is reversed and remanded for the trial judge to obtain an authenticated copy of Marrero’s mother’s PIP policy at the time of the accident. If the language in the policy comports with the language quoted by State Farm, i.e., coverage for a “resident relative,” then summary judgment would be merited pursuant to Florida Statute and the policy. Attorney’s fees are held in abeyance pending the submission of an authenticated policy. See Brass & Singer, P.A. v. United Auto. Ins. Co., 919 So. 2d 473, 476 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D2252c]; Hart v. Bankers Fire & Cas. Ins. Co., 320 So. 2d 485, 487 (Fla. 4th DCA 1975). (CYNAMON and SAMPEDRO-IGLESIA, JJ., concur.)
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(SAMPEDRO-IGLESIA, Judge, concurring with opinion.) State Farm denied coverage on the basis that Mr. Marrero had “other available coverage,” under his mother’s insurance policy. State Farm first alleged that Mr. Marrero had “other available coverage” under an Aries Insurance Company policy that his mother had purchased. It later changed its position, alleging that Mr. Marrero had “other available coverage” under a United Automobile Insurance Company policy.
I would reverse the summary judgment for the following reasons.
State Farm’s coverage defense relied on the language in Florida Statute 627.736(4)(d)4.b., which governs the payments of PIP benefits. The Court looks to the language of the policy, and it is the responsibility of the court when construing a statute to give the policy’s words their plain and ordinary meaning in the absence of any ambiguity. See U.S. Security Ins. Co. v. Cahuasqui, 760 So. 2d 1101 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D701a].
Since State Farm’s coverage defense does not rely on a policy exclusion, the question before the Court is whether Mr. Marrero is “entitled” to PIP benefits under his mother’s policy. The statute contains no definition of “entitled to personal injury benefits.” See Florida Statute §627.732.
Although State Farm alleged that other coverage was available to Mr. Marrero, it failed to satisfy its prima facie burden on summary judgment of demonstrating the absence of any genuine issues of material fact as to whether Mr. Marrero was “entitled to personal injury benefits” under his mother’s policy with United Auto. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). While it is true that Mr. Marrero filed nothing in opposition to State Farm’s Motion for Summary Judgment, the burden did not shift to Mr. Marrero until State Farm satisfied its initial summary judgment burden.3 Indeed, at the summary judgment hearing, the trial court apparently recognized State Farm’s burden by inquiring whether State Farm had deposed a United Auto representative to determine whether United’s policy afforded PIP benefits to Mr. Marrero. State Farm responded that it had not.
State Farm failed to produce any competent evidence to demonstrate the absence of any genuine issues of material fact. Initially, State Farm relied simply on what purported to be a United Auto policy attached to its Motion for Summary Judgment, along with a declarations page, but neither was properly authenticated.
The trial court allowed State Farm to file the affidavit of Jorge De La O, United’s underwriting supervisor, after the summary judgment hearing.4 However, Mr. De La O did not authenticate the United Auto policy on which State Farm relied. Thus, the United Auto policy was never properly before the trial court and, to the extent that the trial court may have relied upon the United Auto policy, it should not have done so. More importantly, however, the subsequently authenticated declarations page did not demonstrate whether United Auto’s policy provided coverage to Mr. Marrero or not. The declarations page demonstrated nothing more than the fact that Mr. Marrero’s mother owned a vehicle allegedly insured by United. Thus, the De La O affidavit did not prove State Farm’s defense, i.e., that Mr. Marrero was ENTITLED to coverage under United’s policy. Rather, it simply stated that a United policy existed.
The fact that another carrier’s policy exists, which may or may not entitle the claimant to PIP benefits, does not mean that Florida Statute 627.736(4)(d) is triggered as an absolute defense to coverage. According to the statute’s plain terms, an insurance company is not obligated to provide coverage under its policy if the claimant is “entitled” to PIP benefits under another insurance company’s policy. It is also important to note that there is a very real distinction in the insurance world of coverage to a resident relative and a person domiciled at the home. There was again no evidence presented by State Farm in this regard.
In short, State Farm is not entitled to summary judgment in its favor simply because it found a policy that might have “entitled” Mr. Marrero to PIP benefits. This would defeat the purpose of the PIP statute in its totality, which is to provide limited benefits for the payment of an injured person’s medical bills. This is evident by a critical fact — acknowledged by the parties at oral argument — that Millennium has since filed suit against United Auto, which has denied coverage. Insurance companies may not point fingers at one another to provide PIP benefits to an injured claimant, while ultimately leaving the claimant out in the cold with no PIP benefits provided by either carrier — which is exactly what has happened in this case.
Finally, I will address the issue of the relinquishment of this matter on appeal.
Millennium moved for relinquishment during the pendency of this appeal, which this Court granted on October 5, 2009. During that period of relinquishment, Millennium sought to depose Mr. De La O State Farm moved for a protective order, which the trial court granted, thus depriving Millennium of any opportunity to determine whether United’s policy actually “entitled” Mr. Marrero to PIP benefits. This Court retook jurisdiction on April 16, 2010, six months later, during which time the deposition of Mr. De La O may have disposed of this case by providing the parties with necessary information to resolve the coverage issue, thus potentially rendering this appeal moot. Since Mr. De La O was never deposed, and State Farm failed to present any other admissible evidence to prove that Mr. Marrero was “entitled” to PIP benefits under any other insurance policy, State Farm was not entitled to summary judgment.
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1The trial court abated the first summary judgment hearing and the first appeal to allow State Farm the opportunity to provide an authenticated PIP policy to the court. Instead of doing so, State Farm merely provided a declaration page, but not an authenticated insurance policy.
2The unauthenticated policy tendered at the summary judgment provides coverage for a “resident relative”, which is defined in the policy to mean “any relative who resides with the insured.” The policy also covers “family members, defined as “resident relative” of “your household; provided said family member does not own a private passenger auto.” The policy further provides for “(a) the named insured or any resident relative while occupying a motor vehicle or while a pedestrian through being struck by a motor vehicle. . .”
3At the original summary judgment hearing, Millennium indicated that it had no burden to file anything in response to State Farm’s motion until State Farm satisfied its summary judgment burden. Nonetheless, Millennium indicated to the trial court that it would need to depose Mr. De La O, but the trial court entered summary judgment without affording Millennium the opportunity to do so prior to the entry of judgment.
4Although the Court has concerns about the trial court’s leave to allow State Farm to file summary judgment evidence after a summary judgment, particularly in the absence of any exigent circumstances, the De La O affidavit is not dispositive of our ruling, so we do not address the propriety of the trial court’s ruling in that regard. See Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 413 So.2d 1 (Fla. 1982).
