19 Fla. L. Weekly Supp. 877b
Online Reference: FLWSUPP 1910PEREInsurance — Personal injury protection — Exclusions — Insured injured while occupying vehicle owned by named insured and not covered by policy — Where policy unambiguously provided that benefits would be excluded “to the named insured or any relative while occupying a motor vehicle of which the named insured is the owner and which is not insured under this insurance,” insured was not entitled to coverage for injuries sustained while she was occupying vehicle owned by her husband and her mother, who was a named insured under the policy at issue, where that vehicle was not covered under the policy — Fact that insured was temporarily separated from her husband at time of accident does not change result — Moreover, policy of insurance unambiguously defines “owner” as one who holds “legal title,” and plaintiff has never disputed that mother fell within that definition
ROSAIDA PEREZ, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 00-264 CC 24. July 11, 2012. Honorable Rodney Smith, Judge. Counsel: Scott Jontiff, for Plaintiff. Paula Ferris, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FORFINAL SUMMARY JUDGMENT AS TO COVERAGE
THIS CAUSE having come before the Court on June 18, 2012 on Defendant’s Motion for Final Summary Judgment as to Coverage and the Court having heard argument of counsel, reviewed the procedural history, the court file, including deposition transcripts, pleadings, relevant legal authority, supplemental document and deposition transcripts, and filed affidavits, and having otherwise been fully advised in the premises, the Court hereby GRANTS Defendant’s Motion for Final Summary Judgment as to Coverage on the following grounds:
FINDINGS OF FACT
Mr. Luis Perez and Mrs. Rosaida Perez, as husband and wife, and their children currently reside together and have lived together for at least the past seven years at [Editor’s Note: Address Omitted], Miami, Florida 33182. Except from about February 1999 to September 1999, Mrs. Perez temporarily separated from her husband, Mr. Perez due to marital discord, which she and her children then lived with her mother, Louisa Corzo at [Editor’s Note: Address Omitted], Miami, Florida 33182. On or about February 27, 1999, the Plaintiff, Rosaida Perez, her husband, Luis Perez, and her mother, Luisa Corzo, all went shopping together and purchased two automobiles on the same date and time at the same dealership, a 1996 Mercury Villager and a 1998 Hyundai Accent. The Plaintiff, Rosaida Perez and her mother, Luisa Corzo, were named insureds of a policy of insurance issued by the Defendant, United Automobile Insurance Company (United Auto) insuring only the 1998 Hyundai Accent. Nonetheless, the Plaintiff’s husband, Luis Perez, was listed as a “resident of the applicant’s household” on the application of insurance on February 10, 1999, for the Hyundai Accent. The 1998 Hyundai Accent is owned and registered only by Rosaida Perez and her mother, Luisa Corzo. However, the 1996 Mercury is owned and registered to only the Plaintiff’s mother, Luisa Corzo and the Plaintiff’s husband, Luis Perez. Only the 1998 Hyundai was listed as a covered vehicle at the time United Auto issued the policy of insurance.
On August 29, 1999, Rosaida Perez, Luis Perez and their two minor children, while leaving their home were involved in an automobile accident where only Rosaida Perez allegedly sustained injuries requiring medical treatment. At the time of the accident, Mrs. Perez was driving, Mr. Perez was the front seat passenger, and their minor children were in the back seats of a 1996 Mercury Villager owned by and registered to both her husband, Luis Perez and her mother, Luisa Corzo. The 1996 Mercury was not insured through United Auto. Rosaida Perez submitted bills for payment of her personal injury protection benefits (hereinafter referred to as “PIP”) to United Auto pursuant to PIP. United Auto denied PIP coverage as Ms. Corzo, and Mr. and Mrs. Perez were named insureds under the policy for the 1998 Hyundai Accent, but the policy did not insure the 1996 Mercury that was involved in the accident. The 1996 Mercury which was owned by Mrs. Perez’s husband, Luis Perez and her mother, Luisa Corzo was not scheduled as insured by the policy and for which no coverage premiums were paid to United Auto. The subject policy was not intended to cover, and did not in fact cover, the 1996 Mercury which Mrs. Perez potentially could use on a regular basis, and that, as a matter of law, the clear language of the policy excludes coverage on the facts before this Court.
ISSUES OF LAW
The policy of insurance excludes coverage for PIP benefits “to the named insured or any relative while occupying a motor vehicle of which the named insured is the owner and which is not insured under this insurance”. Florida Personal Auto Policy United Automobile Insurance p.13. This exclusion follows the language of Florida Statute 627.736(2)(a). “Owner” is defined as “a person or organization who holds the legal title to a motor vehicle” Florida Personal Auto Policy United Automobile Insurance p.1. This definition follows the language of Florida Statutes 627.732(3).
“Named insured” means a person, usually the owner of a vehicle, identified in a policy by name as the insured under the policy. Florida Statutes 627.732(2).
“Relative residing in the same household” means a relative of any degree by blood or by marriage who usually makes her or his home in the same family unit, whether or not temporarily living elsewhere. Florida Statutes 627.732(4). Mr. and Mrs. Perez’s alleged temporary separation from about February 1999 to September 1999, is of no consequence to valid coverage because the 1996 Mercury, which was owned by Mrs. Perez’s husband, Luis Perez and her mother, Luisa Corzo was not insured by the policy and for which no coverage premiums were paid to United Auto.
Summary Judgment Standard
Summary judgment may only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fla.R.Civ.P. 1.510(c); Morre v. Morre, 475 So. 2d 666 (Fla. 1984).
Successor Judge:
The issue of coverage was raised before the predecessor judge. It is well settled in this state that the trial court has the inherent authority to reconsider any interlocutory rulings prior to the entry of final judgment. Bettez v. City of Miami, 510 So. 2d 1242, 1243 (Fla. 3d DCA 1987).
While a judge should hesitate to undo his own work, and should hesitate still more to undo the work of another judge, he does have, until final judgment, the power to do so and may therefore vacate or modify the interlocutory rulings or orders of his predecessor in the case. This “code” of restraint is not based solely on the law of the case but is founded upon considerations of comity and courtesy. It has been held that a succeeding judge may adopt the findings of fact of his predecessor and render judgment thereon. Tingle v. Dade County Board of Comm’n, 245 So. 2d 76 (Fla. 1971).
If the successor judge does not adopt the findings of the predecessor judge, the judge should hear the evidence for herself. Smith v. Silberman, 586 So. 2d 467, 468 (Fla. 3d DCA 1991). A successor judge that does not hear all the evidence may not enter a judgment on the prior rulings of the predecessor judge.
In the case sub judice, although a motion was previously heard there was no written order that reflected the predecessor judge’s findings but rather only a pronouncement of what the predecessor judge had at that time considered. In light of the lack of a written order, this court has heard the evidence and makes its own findings.
Contract Construction and Exclusion:
The general rule of contract construction is that if the language is plain and unambiguous, there is no reason to construe the contract. Rigel v. National Casualty Company, 76 So. 2d 285 (Fla. 1954). If the Court must construe an insurance contract, the Court should construe the insurance contract to give effect to the intent of the parties.
The parties agree that both Rosaida Perez and Luisa Corzo were “named insureds” under the subject insurance contract. Owner is defined as “a person or organization who holds the legal title to a motor vehicle. . .” In this case, the definition and stipulation of “named insured” and “owner” are clear and unambiguous.
In Guerrero v. United Automobile Insurance Company, 9 Fla. L. Weekly Supp. 224b (11th Cir. Appellate Div. 2002), Ernesto Guerrero and his mother were named insured’s of a 1990 Ford Probe insured by United. Guerrero was injured while driving a 1986 Mercury Sable which was not insured by United but was allegedly owned by his mother, also a named insured. Guerrero filed an affidavit contesting that the vehicle was owned by his mother. The Court found “627.736(2) (a) applies only if the 1986 Mercury Sable was owned by Plaintiff or his mother.” (Emphasis added). Although the Guerrero court reversed summary judgment due to a genuine issue of material fact in the record regarding ownership of the automobile occupied by Plaintiff at the time of the injury, the court recognized that summary judgment would be proper if Plaintiff’s mother owned the automobile.
In the present case, the facts are analogous to Guerrero. Rosaida Perez and her mother were named insured’s of a 1998 Hyundai insured by United Auto. Rosaida Perez was injured while driving 1996 Mercury owned by her mother, also a named insured. However, unlike Guerrero, there was never any assertion by the Plaintiff that the 1996 Mercury vehicle was not owned by her mother. In fact, in her deposition, the Plaintiff repeatedly asserts that the vehicle involved in the accident was owned by her mother and husband. Moreover, United Auto’s policy of insurance unambiguously defines “owner” as one who holds “legal title”. The Plaintiff has never disputed that the mother, Luisa Corzo, falls within the definition of “owner” as set forth in United’s policy of insurance. The Plaintiff argues that her brief separation from her husband (from February 1999 to August 1999) should form the basis to disregarding United’s definition of “owner” as reflected in the policy. Plaintiff cites to the Guerrero case as authority for its argument; however, in Guerrero, there was no reference made to the policy definition as United Auto failed to file a responsive brief; thus, the appellate court did not have before it the unambiguous definition of “owner” that this court has in its record. Absent a definition of “owner”, the Guerrero court was left to seek guidance outside of the policy and accept Guerrero’s affidavit contesting “ownership” by his mother of the vehicle involved in the loss. This Court is not faced with the need to search for a definition of “ownership” as one has been provided by United’s policy of insurance which is in the record.
In Quality Medical Group, Inc. a/a/o Pastor Rodriguez v. United Automobile Insurance Company, 16 Fla. L. Weekly Supp. 821a (11th Cir. App. July 8, 2009), cert. denied 23 So. 3d 123 (Fla. 3d DCA 2009), the Court concluded that the trial court had correctly found United Auto’s definition of “owner” and its exclusion under 627.736(2)(a) to be clear and unambiguous and properly denied PIP coverage. See Also: Industrial Fire and Casualty Insurance Company v. Jones, 363 So.3d 1168 (Fla. 3d DCA 1978) (insured’s stepson was specifically excluded from coverage under personal injury protection provision in automobile policy excluding from coverage “the named insured or any relative while occupying a motor of which the named insured is the owner and which is not an insured motor vehicle under this insurance” where stepson was injured while driving mother’s automobile which was not insured under policy.) Here, the 1996 Mercury, which was owned by Mrs. Perez’s husband, Luis Perez and her mother, Luisa Corzo was not insured by United Auto’s policy and for which no coverage premiums were paid to United Auto.
Like the holding in Fidelity and Casualty Company of New York v. Fonseca, 358 So.2d 569 (Fla. 3d DCA 1978), this Court additionally finds that notwithstanding Mr. and Mrs. Perez’s temporary separation for approximately seven months, the subject policy was not intended to cover, and did not in fact cover, a vehicle which Mrs. Perez potentially could use on a regular basis, and that, as a matter of law, the clear language of the policy excludes coverage on the facts. Thus, as asserted above, this Court is bound by United Auto’s policy of insurance which unambiguously finds that a legal title holder is an “owner” as a matter of law.
CONCLUSION
Rosaida Perez and Luisa Corzo were named insureds under a policy of insurance issued by United AUTO insuring only a 1998 Hyundai Accent. The policy unambiguously provided that benefits would be excluded “to the named insured or any relative while occupying a motor vehicle of which the named insured is the owner and which is not insured under this insurance.” The policy further defined “owner” as “a person or organization who holds the legal title to a motor vehicle”. “Relative residing in the same household” means a relative of any degree by blood or by marriage who usually makes her or his home in the same family unit, whether or not temporarily living elsewhere. Florida Statutes 627.732(4).
These provisions are not only contained in the policy of insurance at issue but also track the language of Florida Statutes 627.736(2)(a) and 627.732(3), respectively. Furthermore, these policy provisions have already been adjudicated as binding and unambiguous provisions; see Quality Medical Group, Inc. a/a/o Pastor Rodriguez v. United Automobile Insurance Company, Id.
There is no dispute that Rosaida Perez was “occupying” a vehicle that was “owned” (legal title) by the “named insured” Luisa Corzo and Luis Perez. The 1996 Mercury, which was owned by Mrs. Perez’s husband, Luis Perez and her mother, Luisa Corzo was not insured by United Auto’s policy and for which no coverage premiums were paid to United Auto. Unequivocally, the subject policy was not intended to cover, and did not in fact cover, a vehicle which Mrs. Perez potentially could use on a regular basis, and that, as a matter of law, the clear language of the policy excludes coverage on the facts before this Court. According, there exists no genuine issue of material fact in dispute that precludes the entry of summary judgment for the Defendant.
Thus, it is hereby ORDERED and ADJUDGED that:
Defendant’s Motion for Summary Judgment as to Coverage is hereby GRANTED.
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