21 Fla. L. Weekly Supp. 197a
Online Reference: FLWSUPP 2102NHERInsurance — Personal injury protection — Coverage — Claimant who failed to maintain insurance on own vehicle — Inoperable vehicle — Vehicle that was temporarily inoperable due to mechanical failure and claimant’s inability to pay for repairs was not required to be insured — Partial summary judgment regarding coverage is entered in favor of medical provider
INJURY TREATMENT CENTER OF CORAL SPRINGS, INC. D/B/A CHOICE MEDICAL CENTERS, as assignee of NICOLE HERNANDEZ, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 11-01583 COCE (55). October 1, 2013. Sharon Zeller, Judge. Counsel: Andrea Jakob, Davie, and Emilio R. Stillo, for Plaintiff. Jennifer Lucy, for Defendant.
ORDER GRANTING PLAINTIFF’S SECONDAMENDED MOTION FOR PARTIALSUMMARY JUDGMENT AS TO COVERAGE
THIS CAUSE came before the Court on August 8, 2013 on Plaintiff’s Second Amended Motion for Partial Summary Judgment as to Coverage and the Court having reviewed the entire Court file; reviewed the relevant legal authorities and been sufficiently advised in the premises, finds as follows:BACKGROUND
NICOLE HERNANDEZ was involved in an automobile accident in Florida, in which she sustained personal injuries, necessitating the payment of medical expenses. At the time of the accident, Ms. Hernandez was struck as a pedestrian by a driver insured by the Defendant under a policy which provided personal injury protection benefits, as required by law.
It is undisputed that at the time of the accident, NICOLE HERNANDEZ was the registered owner of an automobile. Plaintiff has demonstrated that there is no question of material fact that the automobile registered to Ms. Hernandez, was inoperable. Plaintiff provided the deposition testimony and affidavit of Nicole Hernandez. The Plaintiff also submitted affidavits of Jorge Ruiz and Luis DeRosa as witnesses to the inoperability of the automobile. All the sworn testimony provided the following undisputed facts: the automobile was a 1991 Nissan Maxima, given to Ms. Hernandez by her Uncle so that she could work and earn enough money to eventually repair the car. Ms. Hernandez never drove the car and stated that the engine would turn over, but couldn’t be driven. The following exchange took place in the deposition of Ms. Hernandez:
Page 11, line 10:
Q: How long had you owned it prior to the — sorry. When did you buy it?
A: I never bought it. It was given to me by my uncle.
Line 23:
Q: The title was in your name?
A: Yes. As soon as he gave it to me, I put the title in my name.
Q: And was it registered?
A: It was registered because when I registered it, I had the intentions of fixing it, but I never did. I never did because I never had the money to do it.
Q: What did you do — what did you need to fix?
A: I need to fix the engine. The windows did not go down and there was no AC in the car. So — and I had a daughter that was four and I couldn’t drive the car with the windows up and no AC. And the engine was just not — it — I mean, it would turn — the car would turn on but it wouldn’t work. It wouldn’t drive.
Q: How did it get to the parking lot?
A: It was taken there from my uncle took it over there.
Q: Did he drive it?
A: No, he didn’t drive it.
Q: Was it towed?
A: It was towed over there.
Q: was it drivable?
A: It was drivable but up to a certain limit. Like five minutes. You couldn’t really drive it anywhere because it would leave you stranded.
Q: Did you ever drive it?
A: Never. I never once drove it because where ever I would use it, I would be stranded.
Page 25, Line 2:
Q: And no one else — no one at all drove the car while it was in your ownership?
A: No.
Page 25, Line 11:
Q: Had you ever taken the car — had any mechanic examined the car once you had you had it in your possession?
A: No
Q: Did you take any measures to make it operable or did you just —
A: Yes, of course, I mean —
Q: What did you do?
A: I got a job. As soon as I got a job, I said you know, hey, if I get a job, I can save up money and I can have it fixed and I was — my way of thought was that way. You know, I said, hey, if I have money, you know, so that will solve my problem. I can have a mechanic come and check it out here.
Q: At that point — at any point, did you have a mechanic come and check it out?
A: no, never, Never.
Q: no.
A: because I didn’t have the money to do it at the time.
page 101, line 19:
Q: Okay. And you never drove the car that your uncle gave you?
A: never.
Q: And you did say that the car was not operable?
A: Not operable.
Ms. Hernandez properly notified Defendant of the accident and submitted to Defendant for payment, reasonable and necessary medical expenses proximately resulting from the automobile accident.
All sworn testimony presented the automobile registered to Nicole Hernandez had never been driven by Nicole Hernandez and was inoperable.
LEGAL STANDARD FOR MOTIONFOR SUMMARY JUDGMENT
This action is for breach of a Personal Injury Protection portion of Insurance Contract. In order to prevail on a Motion for Summary Judgment, a party must “conclusively show the absence of any genuine issue of material fact.” McQueen v. Roye, 785 So.2d 512 (3rd DCA 2000) [25 Fla. L. Weekly D1415a]. Specifically, the Florida Supreme Court set forth the rule:
The rule is simply that the burden to prove the non-existence of genuine triable issues is on the moving party, and the burden of proving the existence of such issues is not shifted to the opposing party until the movent has successfully met his burden.
Castaneda v. General Building Services Corporation, Inc., 746 So.2d 491 (3rd DCA 1999) [24 Fla. L. Weekly D2387b] (citing Holl v. Talcott, 191 So.2d.40 (Fla. 1966)).
Florida Statutes §627.736 provides for coverage under the Defendant’s Insurance Policy for the injuries sustained in the automobile accident of May 12, 2010. Florida Statutes §627.736 provides:
627.736 Required personal injury protection benefits; exclusions; priority; claims. —
(1) REQUIRED BENEFITS. — Every insurance policy complying with the security requirements of s. 627.733 shall provide personal injury protection to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle, subject to the provisions of subsection (2) and paragraph (4)(e), to a limit of $10,000 for loss sustained by any such person as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle as follows:
Florida Statutes §627.733 requires insurance coverage for owners of motor vehicles and provides:
627.733 Required security. —
(1)(a) Every owner or registrant of a motor vehicle, other than a motor vehicle used as a school bus as defined in s. 1006.25 or limousine, required to be registered and licensed in this state shall maintain security as required by subsection (3) in effect continuously throughout the registration or licensing period.
And see:
Florida Statutes §320.01 Definitions, general. — As used in the Florida Statutes, except as otherwise provided, the term:
(1) “Motor vehicle” means:
(a) An automobile, motorcycle, truck, trailer, semitrailer, truck tractor and semitrailer combination, or any other vehicle operated on the roads of this state, used to transport persons or property, and propelled by power other than muscular power, but the term does not include traction engines, road rollers, such vehicles as run only upon a track, bicycles, or mopeds.
Although the Florida Statute sets out that an owner or registrant of a motor vehicle shall maintain security, the courts clearly agree that this requirement does not apply to motor vehicles that inoperable.
In Sherman v. Reserve Ins. Co., 350 So. 2d 349, 351 (Fla. Dist. Ct. App. 4th Dist. 1977), the appellant, Mr. Sherman was injured as a result of a motor vehicle accident while he was operating an automobile owned by Arlie Miller. The appellee, insurer of Mr. Miller’s vehicle, denied coverage to the appellant for the reason that at the time of the accident appellant owned a vehicle which, although duly registered with the State of Florida, was uninsured. At the time of the accident Mr. Sherman’s automobile was totally inoperable as the result of a mechanical failure and he had allowed such insurance to lapse because of the inoperable condition of his vehicle. After the Trial Court granted appellee’s Motion for final summary judgment, the appeal followed with the following issue
“Whether an automobile which has been rendered inoperable due to mechanical failure or defect is subject to the security requirements of the Florida Automobile Reparations Reform Act (No-Fault) statute, (1971.)”.
The Appellate Court answered the question in the negative holding:
“In applying the statutory definition of “motor vehicle” we hold that an automobile, which has been rendered inoperable due to mechanical failure or defect, does not fall within the definition established by law and therefore is neither required to he registered and licensed nor to maintain security under the provisions of the Florida Automobile Reparations Reform Act. It is clear that an automobile rendered inoperable due to mechanical defects cannot possibly fulfill any of the three requirements set forth in § 320.01. Florida Statutes. The instrumentality cannot be operated over the public streets under its own power, nor is it suitable for transporting persons or property over the public highways. Until such instrumentality is repaired and restored to an operable condition, it remains an assemblage of components which is incapable of functioning as a motor vehicle. The result we reach today is consistent not only with simple logic, but is also consistent with the generally accepted scope of the state’s police powers in regulating traffic over public thoroughfares, and in no way serves to undermine the intent of the framers of the Florida Automobile Reparations Reform Act.”
The Court additionally stated that no public interest is served by denying personal injury protection benefits to an individual involved in an accident in another’s automobile merely because that individual has an inoperable automobile in storage upon which the insurance coverage has intentionally been allowed to lapse because of its inoperable condition. Such an individual may not be considered the owner or registrant of a motor vehicle required to be registered and licensed in this state, and therefore does not fall within the purview of the security requirements of § 627.733, Florida Statutes.
Defendant would have this Court conclude that the automobile must be rendered “permanently inoperable.” However, nowhere in the law is this a requirement.
Requiring all automobiles, once registered and licensed, to maintain same and require insurance “until such time as that automobile finds its final resting place in some junkyard would lead to absurd results.” (Although, claimant testified that’s where the car ended up.)
An automobile which is rendered temporarily inoperable due to mechanical failure, waiting for its owner to acquire the funds to have it repaired and is not being operated over the public streets and highways of this state is not required to be insured.
Just as in Fortune Insurance Co. vs. Oehme, 453 So. 2d 920, (Fla. 5th DCA 1984), Mr. Oehme’s truck was not being driven and he had no intent to do so until he got his license restored and could borrow enough money to fix the clutch. “Although the clutch repair was relatively minor in terms of dollars and labor ($130.00) as automobile repairs go today, the sum was not minor to Mr. Oehme.” He, as the claimant herein, testified that he didn’t have the cash to pay for the repair. Both had the cars “in storage” — one in the backyard and the other in the front. After 6 months of not using the car, not repairing the car and having no intent of using it, the claimant need not insure it.
More recently, Quanstrom v. Standard Guaranty Ins. Co., 504 So. 2d 1295 (Fla. Dist. Ct. App. 5th Dist. 1987) involved a question of:
“whether a person injured while occupying a motor vehicle covered by personal injury protection (PIP) insurance is barred by section 627.736(4)(a), Florida Statutes (1985), from recovering PIP benefits from the insurer of the owner of that vehicle because the injured person is the owner of an uninsured motor vehicle which is not in fact being driven or operated on the roads of this state because of needed repairs.”
The Quanstrom Court held that “Appellant is not barred by section 627.736(4)(d)4., Florida Statutes (1985) from recovering PIP benefits from the insurer of the vehicle she was occupying as she was not required by law to have her vehicle registered nor was she required to have it insured, because she was not currently operating or driving it on the roads of this state. Therefore, appellant is not barred from recovering PIP benefits and was entitled to summary judgment. See Fortune Insurance Co. v. Oehme, supra; Sherman v. Reserve Insurance Co., 350 So.2d 349 (Fla. 4th DCA 1977), cert. dismissed, 355 So.2d 516 (Fla. 1978).
At the hearing, Defendant presented no contrary evidence or legal authority to support their position. Defendant argued that the Summary Judgment motion should be denied until depositions of the fact witnesses are taken, although discovery cut-off was eight months prior and the Defendant conducted very little discovery regarding this issue during the pendency of the claim. “In Leviton, the Third District Court of Appeal affirmed the trial court’s granting of summary judgment despite the pendency of discovery where the defendants conducted very little discovery over a seven-month period and did not request a continuance of the summary judgment hearing to complete discovery”, United Automobile Insurance Company (Appellant) v. Michael Surdis, Jr., FLW SUPP 2009SURD (2013, Circuit Court, 17th Judicial Circuit (Appellate)) [20 Fla. L. Weekly Supp. 887a] quoting Leviton v. Philly Steak-Out, Inc.; See also, Cong. Park Office Condos II, LLC v. First-Citizens Bank & Trust Co., 2013 WL 163435 (Fla. 4th DCA Jan. 16, 2013) [38 Fla. L. Weekly D145a]. (Borrowers failed to act diligently in seeking discovery and thus fact that discovery remained pending did not bar award of summary judgment to assignee.). In this case, the Defendant did not request a continuance prior to or during the summary judgment hearing.
WEREFORE. based on the foregoing, the Plaintiff’s Second Amended Motion for Partial Summary Judgment regarding coverage is hereby granted.
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