19 Fla. L. Weekly Supp. 597a
Online Reference: FLWSUPP 1907VALIInsurance — Personal injury protection — Coverage — Non-resident relative of insured — Medical provider’s assignor is not entitled to benefits under his stepfather’s PIP policy where assignor is not named insured, does not reside with stepfather, and was not occupying vehicle insured under policy at time of accident — Insurer did not waive right to deny coverage by paying other medical providers for services rendered to assignor where other payments are merely gratuitous
PRECISION DIAGNOSTIC, INC., (Patient: Aylin Valido), Plaintiff(s), vs. INFINITY INSURANCE COMPANY, Defendant(s). County Court, 19th Judicial Circuit in and for St. Lucie County. Case No. 56-2009-SC-002602. March 30, 2012. Honorable Kathryn Nelson, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega d/b/a Florida Insurance Advocates, North Miami, for Plaintiff. Belayne D. Guerrero, Leiter & Belsky, Fort Lauderdale, for Defendant.
FINAL JUDGMENT FOR DEFENDANT
This matter having come before the Court on January 19, 2012, on Defendant, INFINITY INSURANCE COMPANY’s Motion for Final Summary Judgment, and the Court having reviewed and considered the motion and memorandum of law and applicable case law, having reviewed the court file, including the pleadings and summary judgment evidence on file, having heard argument of counsel, and being otherwise fully advised in the premises,
The Court hereby FINDS as follows:
1. At the conclusion of the hearing on January 19, 2012, the Court entered an order granting INFINITY INSURANCE COMPANY’s Motion for Final Summary Judgment finding that there were no genuine issues of material fact raised by the present action and Defendant, INFINITY INSURANCE COMPANY (“Infinity”), is entitled to a summary final judgment as a matter of law.
2. On or about September 27, 2008, Aylin Valido (“Valido”) is alleged to have been involved in a motor vehicle accident in which she sustained personal injuries. At the time of the accident, Valido is said to have been a passenger in a vehicle which rear ended another motorist.
3. Prior to September 27, 2008, Infinity had issued a policy of insurance to Valido’s stepfather, Juan Carrillo (“Carrillo”). The policy was issued to Carrillo in Jacksonville, Florida. The policy provided for $10,000.00 in Personal Injury Protection (“PIP”) benefits, among other coverages, and was in full force and effect on September 27, 2008. It is under this Infinity policy issued to Carrillo which Plaintiff seeks payment of PIP medical benefits in his case. A copy of the Infinity policy is on file with the Court and relied upon by Infinity in its motion.
4. The Infinity policy provides in pertinent part, as follows:
We will pay benefits for bodily injury sustained by:
1. you or a relative while occupying a motor vehicle, or while a pedestrian through being struck by a motor vehicle; or
2. Any other person while occupying the insured motor vehicle, or while a pedestrian through being struck by the insured motor vehicle.
(Bold in original signifying defined terms under the policy).
5. The language of the Infinity policy is clear and unambiguous. Based upon the terms of the Infinity policy and pursuant to Fla. Stat. §627.736(4)(e) (2008), Valido, and Plaintiff as her assignee, is entitled to PIP benefits under the Infinity policy at issue if she (a) meets the definition of “you” and is therefore the named insured under the policy or (b) meets the policy definition of “relative” or (c) was either “occupying the insured motor vehicle” or was a “pedestrian” at the time of the subject accident.
6. Valido does not meet the definition of “you” in the Infinity policy as Carrillo was the person named in the policy declarations and is therefore the named insured under the Infinity policy. Although Valido was listed as a driver in the policy, she was not the named insured. In its responses to Infinity’s Request for Admissions, Plaintiff admitted Valido was not a named insured under the Infinity policy at issue.
7. Even though Valido was not a named insured under the Infinity policy at issue, she would still be entitled to PIP benefits if she met the policy definition of “relative.” The policy defines a “relative” as “any person related to you by blood, marriage, or adoption, including a ward or foster child, who lives in your household, whether or not temporarily living elsewhere.” At the time of the subject accident, Valido was a resident of Broward County, Florida, and was therefore not a resident of Carrillo’s household in Jacksonville, Duval County, Florida. Accordingly, Valido does not meet the policy definition of “relative.”
8. Valido was occupying a vehicle at the time of the subject accident and, as a result, could not meet the policy definition of “pedestrian.” The vehicle Valido was occupying was not an “insured motor vehicle” under the Infinity policy issued to Carrillo.
9. Pursuant to the express terms of the Infinity policy and Fla. Stat. § 627.736(4)(e) (2008), Valido is not entitled to PIP benefits under the Infinity policy at issue.
10. Plaintiff provided medical services to Valido for injuries allegedly sustained in the subject accident. Plaintiff has brought this action seeking payment of PIP medical benefits for the services rendered to Valido pursuant to an Assignment of Benefits.
11. Plaintiff argues that Infinity waived its right to deny coverage to Valido because Infinity paid other medical providers for medical services rendered to Valido for injuries sustained in the motor vehicle accident of September 27, 2008. The Court rejects Plaintiff’s argument. Any payment issued by Infinity to any other medical provider was merely gratuitous and is otherwise irrelevant to the Plaintiff’s claims in this action.
12. As an assignee, Plaintiff stands in the shoes of Valido and has no greater rights and takes her claims subject to any defenses Infinity has to coverage for the subject accident. Based upon the foregoing, Valido is not entitled to coverage for PIP benefits under the Infinity policy for the subject accident. Because Valido is not entitled to coverage, Plaintiff is not entitled to recovery of PIP benefits.
WHEREFORE, based upon the foregoing findings of fact and conclusions of law, it is hereby
ORDERED AND ADJUDGED that Final Judgment is hereby entered in favor of Defendant, Infinity Insurance Company, and Defendant, Infinity Insurance Company, shall go hence without day.
IT IS FURTHER ORDERED AND ADJUDGED that the Court retains jurisdiction for a determination of attorney’s fees and costs to Defendant upon Defendant’s timely motion.
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