19 Fla. L. Weekly Supp. 1101a
Online Reference: FLWSUPP 1913IRODInsurance — Personal injury protection — Notice of loss — Where affidavit of passenger injured in insured’s vehicle indicated that passenger is owner of a motor vehicle and therefore would not be entitled to coverage under insured’s PIP policy, and passenger did not withdraw affidavit until after suit was filed, PIP insurer did not receive notice of covered loss and 30-day period for payment of benefits did not begin to run until after suit was filed — Suit is dismissed as premature
PCM MEDICAL CENTER, INC., as assignee of Idalmis Rodriguez, Plaintiff, vs. THE RESPONSIVE AUTO INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 10-14107 CC 05. September 6, 2012. Wendell M. Graham, Judge. Counsel: Gladys A. Cardenas, Gladys A. Cardenas, P.A., Miami, for Plaintiff. Charles L. Vaccaro, Vaccaro Law Firm, P.A., Davie, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FORSUMMARY JUDGMENT AND DISMISSAL OF LAWSUIT
THIS CAUSE, having come before the Court on Defendant’s Motion for Summary Judgment, and the Court, having reviewed the pleadings and motions, heard the argument of Counsel, and being otherwise duly advised in the premises, the Court Finds as follows:
This is a case for PIP benefits under a policy of insurance issued by THE RESPONSIVE AUTO INSURANCE COMPANY (hereinafter “RESPONSIVE”) to Julio Mallea. The automobile accident that is the subject of this litigation occurred on January 15, 2010 and the subject lawsuit was filed on August 27, 2010. At the time of the accident, Idalmis Rodriquez was a passenger in a vehicle owned by Julio Mallea. It was undisputed that Idalmis Rodriguez was never named as a driver or resident under Julio Mallea’s policy nor was she ever a resident of Mr. Mallea’s household.
It is further undisputed that on March 5, 2010, RESPONSIVE received a Sworn PIP Affidavit signed by Idalmis Rodriguez stating that she “was the owner of a motor vehicle [herself]”. The statement by Idalmis Rodriguez indicated on its face that Idalmis Rodriguez would not be entitled to coverage under Julio Mallea’s policy. No-fault insurance benefits are not available to a person who owns a vehicle but chooses not to obtain no-fault benefits for that vehicle. State Farm Mut. Auto. Ins. Co. v. Hartzog, 917 So.2d 363 (Fla. 1st DCA 2005) [31 Fla. L. Weekly D129a]. Industrial Fire & Cas. Ins. Co. v. Augustin, 412 So.2d 418 (Fla. 3d DCA 1982) (a passenger who is the owner of an uninsured motor vehicle at the time of the accident has no right to recover PIP benefits from the policy issued to the owner of the motor vehicle in which the accident occurred); Protective National Insurance Company of Omaha v. Bergouignan, 335 So.2d 871 (Fla. 3d DCA 1976); Staley v. Florida Farm Bureau Mutual Insurance Company, 328 So.2d 241 (Fla. 1st DCA 1976).
Further, F.S. 627.736 (4)(b) states in relevant part:
(b) Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. . . . However, notwithstanding the fact that written notice has been furnished to the insurer, any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment.
F.S. 627.736(4)(b) (emphasis added). Thus, before the 30 day period set out in F.S. Sec. 627.736(4)(b) even starts to run, the insurer must first be provided with written notice of a “covered” loss.
RESPONSIVE had never received written notice of a “covered” loss prior to the lawsuit being filed since Idalmis Rodriguez’ PIP affidavit received on March 5, 2010 clearly indicated the opposite: that she was the owner of a motor vehicle and as such, she would not be entitled to coverage under the RESPONSIVE policy. This PIP affidavit was never been withdrawn by Idalmis Rodriguez until long after the lawsuit was filed in August, 2012 when Plaintiff filed an affidavit of Idalmis Rodriguez in opposition to Defendant’s motion for summary judgment. In that affidavit, Idalmis Rodriguez stated that she had made an error when she filled out the Sworn PIP Affidavit and that she actually did not own a vehicle at the time of the accident. Therefore, it was not until August 6, 2012 (when Defendant, through their attorney received this affidavit) that notice of a “covered” loss was provided to RESPONSIVE. Accordingly, even as of the date of this hearing, the 30 days had not expired and the claim was not “overdue.” Accordingly, Plaintiff’s lawsuit is premature.
Based on the foregoing, it is hereby ORDERED and ADJUDGED that Defendant’s Motion for Summary Judgment be and the same is hereby GRANTED. The subject lawsuit is hereby DISMISSED as premature for the reasons set forth above. The dismissal does not foreclose Plaintiff to institute new claims proceedings, including re-filing a new action, if the bills actually become overdue. The Court reserves jurisdiction to hear Defendant’s Motion to tax costs and fees, if any.
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