21 Fla. L. Weekly Supp. 495a
Online Reference: FLWSUPP 2106PRAEInsurance — Personal injury protection — Coverage — Where insured was injured while driving friend’s vehicle with express or implied permission of friend, insurer of friend’s vehicle, not insurer of vehicle owned by sister and brother-in-law with whom insured resided, was responsible for PIP coverage — Even if insured were not covered by friend’s policy, she was covered by separate policy issued by same insurer on vehicle that insured, herself, owns
PRAETORIAN INSURANCE CO. f/k/a REDLAND INSURANCE CO. and ERIC C. FRIEDMAN, D.C., P.A. a/a/o GRACIEUSE AUGUSTAL, Appellants, v. OCEAN HARBOR CASUALTY INSURANCE CO., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 12-167 AP & 12-244 AP. L.T. Case Nos. 08-006758 CC 05 & 09-17632 CC 05. March 19, 2014. On appeal from a final judgment rendered by the Miami-Dade County Court. Counsel: Diane H. Tutt, Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., and Marlene S. Reiss, for Appellants. Arthur J. Morburger, for Appellee.
(Before BLAKE, BAGLEY, and LINDSEY, JJ.)
(LINDSEY, Judge) This cause came before the trial court on cross motions for summary judgment. At issue was whether Ocean Harbor Casualty Insurance Company (“Ocean Harbor”) or Praetorian Insurance Company, formerly known as Redland Insurance Co. (“Praetorian”), was responsible for providing coverage. The trial court found that Praetorian was responsible and entered a final judgment in accordance therewith. For the reasons set forth below, we disagree and reverse.
The facts are undisputed. Gracieuse Augustal (“Augustal”) was injured in a motor vehicle accident. She assigned her rights to recover Personal Injury Protection (“PIP”) benefits to Eric C. Friedman, D.C., P.A. (“Friedman”) for treatment rendered by Friedman. Friedman, as an assignee of Augustal, sued both Ocean Harbor Casualty Insurance Company (“Ocean Harbor”) and Praetorian Insurance Company, formerly known as Redland Insurance Co. (“Praetorian”), in order to obtain a determination as to which insurer was liable for coverage.1 At the time of the accident, Augustal was driving a vehicle owned by her friend, Pierre Jeantilus, and insured by Ocean Harbor. Also, at the time of the accident, Augustal had Jeantilus’ permission to drive his vehicle. In addition, although she did not reside with Jeantilus, she co-owned another vehicle, not involved in this accident, with Jeantilus which was also insured by Ocean Harbor. And finally, at the time of the accident, Augustal resided with her sister and brother-in-law who owned a vehicle, not involved in this accident, insured by Praetorian.
Friedman moved for summary judgment in the trial court against both Ocean Harbor and Praetorian in order to preserve his rights to payment under one policy or the other. Both Ocean Harbor and Praetorian moved for summary judgment against Friedman. In addition, Praetorian served a Proposal for Settlement on Friedman on the grounds that Ocean Harbor, and not Praetorian, was responsible for coverage. The trial court denied Friedman’s motion against Ocean Harbor and Praetorian’s motion against Friedman. The trial court granted Friedman’s motion against Praetorian and Ocean Harbor’s motion against Friedman, finding that coverage should lie with Praetorian. Both Praetorian and Friedman appealed.2 The only issue on appeal is whether Ocean Harbor or Praetorian should be required to pay benefits arising from the subject accident.
Florida’s PIP statute requires the insurer of the owner of a motor vehicle to provide PIP benefits in instances where the owner is injured while occupying a motor vehicle, if the accident occurs within the state, and an exclusion does not apply. Specifically, Section 627.736(4)(d), Florida Statutes (2007) provides:
The insurer of the owner of a motor vehicle shall pay personal injury protection benefits for:
1. Accidental bodily injury sustained in this state by the owner while occupying a motor vehicle, or while not an occupant of a self-propelled vehicle if the injury is caused by physical contact with a motor vehicle
2. Accidental bodily injury sustained outside this state, but within the United States of America or its territories or possessions or Canada, by the owner while occupying the owner’s motor vehicle.
3. Accidental bodily injury sustained by a relative of the owner residing in the same household, under the circumstances described in subparagraph 1. or subparagraph 2., provided the relative at the time of the accident is domiciled in the owner’s household and is not himself or herself the owner of a motor vehicle with respect to which security is required under ss. 627.730-627.7405.
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, provided the injured person is not himself or herself:
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 or owners of such a motor vehicle.
Section 627.736(4)(d), Florida Statutes (2007) (emphasis supplied). In addition, Section 627.736(1), Fla. Stat. (2007) provides:
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)(d), 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 . . .”) (emphasis added).
Moreover, Ocean Harbor’s policy, on page 1 in the beginning section, Common Definitions, found under the portion entitled, Agreement, states at section G:
“Insured” means:
1. “You” or any “resident relative” for the ownership, maintenance or use of any “motor vehicle” or “trailer”.
2. Any person using “your covered auto” with express or implied permission to do so.
Ocean Harbor’s contention that Praetorian is responsible for coverage because Augustal resides with her sister and brother-in-law who own a vehicle insured by Praetorian fails under both the PIP statute and the language of Ocean Harbor’s policy. This is so because under Section (G)(2) of Ocean Harbor’s policy, as set forth above, Augustal was using a covered motor vehicle with the express or implied permission of Jeantilus, and would be considered an “insured” under its express terms. Moreover, even if that were not the case, Augustal is covered under a separate Ocean Harbor policy for a vehicle that she, herself, owns.3 Therefore, it is Ocean Harbor, and not Praetorian, that is responsible for coverage for the treatment Friedman rendered to Augustal.
Accordingly, we reverse the trial court’s final summary judgment against Eric G. Friedman, D.C., P.A., in favor of Ocean Harbor Casualty Insurance Company and in favor of Eric G. Friedman, D.C., P.A. against Praetorian Insurance Company f/k/a Redland Insurance Company and remand to the trial court for further proceedings consistent herewith. In addition, we award prevailing party appellate attorney’s fees in favor of Eric G. Friedman, D.C., PA. as against Ocean Harbor Casualty Insurance Company. We further award prevailing party attorney’s fees in favor of Praetorian Insurance Company f/k/a Redland Insurance Company as against Eric G. Friedman, D.C., PA., conditioned upon the trial court’s determination of the validity of the proposal for settlement Praetorian Insurance Company f/k/a Redland Insurance Company served on Eric G. Friedman, D.C., P.A. in the proceedings below. On remand the trial court shall determine the amount of any fees to be awarded, pursuant to applicable statutes, rules, and case law.
REVERSED and REMANDED. (BLAKE and BAGLEY, JJ., concur.)
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1The cases were consolidated by the trial court.
2Although Friedman prevailed against Praetorian, he joined in this appeal in order to preserve his rights against both insurers in the event Praetorian were to be successful in its appeal herein.
3Although irrelevant to this analysis, this other vehicle is also co-owned with Jeantilus as stated herein.
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