19 Fla. L. Weekly Supp. 1098a
Online Reference: FLWSUPP 1913MARTInsurance — Personal injury protection — Coverage — Passenger of insured vehicle whose parents own uninsured vehicle — No merit to claim that minor passenger is not entitled to coverage under PIP policy covering vehicle he occupied at time of accident because parents with whom he resides own uninsured vehicle
VINCENT BILELLO, D.C., P.A., a/a/o Shernard Martin, Plaintiff(s), vs. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO 11-9123(72). September 11, 2012. Honorable Jill K. Levy, Judge.
ORDER ON DEFENDANT’S MOTION FOR FINALSUMMARY JUDGMENT AND PLAINTIFF’S MOTIONFOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on Defendant’s Motion for Final Summary Judgment and Plaintiff’s Motion for Partial Summary Judgment on September 6, 2012 and the Court having reviewed the Motions as well as the Court file; having heard argument of counsel and reviewed applicable case law, and otherwise being fully advised in the premises, hereby finds:
UNDISPUTED FACTS
The following facts are undisputed: Shernard Martin (“MARTIN”), a minor passenger, was injured in an accident on August 18, 2009, while riding in a vehicle owned by George Finch (“FINCH”) and insured by Defendant, United Services Automobile Association (“USAA”). MARTIN does not own a motor vehicle. MARTIN is a resident of a household in which his mother, Angela Martin, and father, Tywon Martin live. MARTIN’S parents owned and registered a motor vehicle at the time of the accident. The Court has found no evidence that the motor vehicle owned and registered by MARTIN’S parents was insured.
CONCLUSIONS OF LAW
Section 627.736(4)(e) 4., F.S. 2012 is applicable here and provides:
(e) 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, if the injured person is not:
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 of such a motor vehicle.
As the undisputed facts in this case exist, MARTIN, would have been entitled to coverage under a policy his mother and father had on the vehicle they owned if such a policy existed. If MARTIN was not living with his parents, he would be entitled to coverage under FINCH’S policy. USAA’S argument is that s.627.733(4), F.S. 2012 is relevant since MARTIN’S mother and father failed to maintain coverage on their vehicle.
(4) An owner of a motor vehicle with respect to which security is required by this section who fails to have such security in effect at the time of the accident shall have no immunity from tort liability, but shall be personally liable for the payment of benefits under s.627.736. With respect to such insurer under ss. 627.730-627.7405.
USAA argues that the mother and father become personally liable for the payment of benefits for their son MARTIN under the provisions of s.627.733(4). Essentially, the parents become the insurer. While at first glance, it appears through a literal reading of the statute that USAA’s argument may be correct, the Court has reviewed relevant case law which clarifies the legislature’s intent in the passage of the Florida Automobile Reparations Reform Act, the ‘no-fault’ law. Witko v. Liberty Mutual Insurance Co., 348 So.2d 52 (Fla. 4th DCA 1977), Farley v. Gateway Insurance Co., 302 So.2d 177 (Fla. 2d DCA 1974) The Court in Farley summarized by stating, “. . .We cannot believe that the legislature intended to acquiesce in the consequences of calamity to a relative living in the household if he (step-father) fails to buy no-fault coverage, when such relative is injured in or by a stranger’s automobile and can recover from the stranger’s insurer if the step-father didn’t even own an automobile.” Farley at 178. This Court agrees that MARTIN should not be penalized just because his parents bought an automobile. It is hereby:
ORDERED AND ADJUDGED Defendant’s Motion for Final Summary Judgment is DENIED. Plaintiff’s Motion for Partial Summary Judgment is GRANTED.
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