22 Fla. L. Weekly Supp. 103b

Online Reference: FLWSUPP 2201FALCInsurance — Personal injury protection — Coverage — Owner of motor vehicle injured while driving leased vehicle — Where plaintiff was co-owner of vehicle covered by PIP policy, but was not named insured or relative of named insured, and plaintiff was injured while driving leased vehicle, plaintiff was excluded from coverage under his PIP policy by operation of section 627.736(1) and policy provisions — Defendant, self-insured car leasing company, is required to extend PIP coverage to plaintiff

MARIA PREVEZ-FALCON Plaintiff, v. ENTERPRISE LEASING COMPANY OF FLORIDA, LLC, a resident LLC, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 2012-CC-5695, Division G. May 12, 2014. Russell L. Healey, Judge. Counsel: Vincent P. Gallagner, BeachLifeLaw, LLC, Neptune Beach, for Plaintiff. William McFarlane, McFarlane & Dolan, Coral Springs, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT

This matter came before the court on Plaintiff’s Motion for Final Summary Judgment. Plaintiff avers Defendant is legally obligated to extend PIP coverage to Plaintiff for injuries related to a motor vehicle accident. Defendant alleges that Plaintiffs, as owner of a motor vehicle, is excluded from Defendant’s coverage.

Theunderlying facts are not in dispute. Maria Prevez-Falcon, (Plaintiff), was driving a vehicle owned by Enterprise Leasing Company of Florida, LLC, (Defendant) and was involved in a motor vehicle accident. Plaintiff suffered injuries and incurred medical expenses as a result of the accident. Although Plaintiff was an occupant of Defendant’s vehicle, Defendant declined to extend coverage.

At the time of the accident, Plaintiff co-owned a motor vehicle. As an “owner” of a motor vehicle, Plaintiff was obligated to meet Florida Motor Vehicle No-Fault Law requirements of maintaining PIP coverage for that vehicle. Plaintiff and the vehicle’s co-owner purchased Florida No-Fault coverage through a policy issued by Security National Insurance Company. The Security National Policy listed the co-owner as the named insured, and Plaintiff as an additional driver, of the insured vehicle — a Kia Rio.

Plaintiff’s status as an additional driver provided Plaintiff with the required PIP coverage, but only while occupying the insured vehicle. The co-owner, as the “named insured”, enjoyed PIP coverage while occupying any vehicle in the State of Florida. The provisions of the Security National policy did not provide coverage to the Plaintiff for the accident at issue as Plaintiff was not occupying the “insured vehicle.” Security National denied payment of Personal Injury Protection (“PIP”) benefits.

Plaintiff submitted a claim for coverage to Defendant which was a self-insured entity for the purpose of compliance with the Florida Motor Vehicle No-Fault law. Defendant denied coverage alleging that since Plaintiff owned an automobile, Plaintiff was excluded from Defendant’s PIP benefits.

Defendant alleges that pursuant to Florida Statute §627.733(1), as an owner/registrant of a motor vehicle, Plaintiff was required to maintain Florida No Fault Benefits. See Florida Statute §627.733 (2012). Defendant maintains that Plaintiff failed to secure a policy of insurance which would provide PIP benefits to Plaintiff while an occupant in the Defendant’s vehicle which Defendant insists is a legal requirement. Assuming Defendant is correct, Plaintiff’s failure to secure the required No-Fault coverage would make Plaintiff personally liable for the payment of No-Fault benefits. If Plaintiff is personally responsible pursuant to F.S. §627.736(4), then Defendant would not be responsible for payment of any of Plaintiff’s PIP benefits.

Under Florida law, the owner of a motor vehicle is required to “maintain security” as required by the Florida Motor Vehicle No-Fault Law (“PIP Statute”) codified in the Florida Statutes at Sec. 627.730, et seq. See 627.733(1)(a), Fla. Stat. The required “security” is provided by an insurance policy delivered in Florida which provides the benefits and exemptions contained in the PIP Statute. (627.733(3)(a), Fla. Stat)

The “required benefits” of a PIP insurance policy include the following:

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 . . . (emphasis added).

It is undisputed in the present case that the Kia Rio co-owned by Plaintiff was listed on the Security National policy as an insured automobile, and that Plaintiff was listed as a “Driver on Policy”. It is also undisputed that Plaintiff was not “the named insured” under the Security National policy and that she was also not a relative of the named insured. Plaintiff was neither an operator nor passenger of the Kia Rio and Plaintiff was not stuck by the Kia Rio. Under the statute, Plaintiff would need to be an operator or occupant of the Kia Rio for PIP coverage to extend under the Security National policy. Additionally, under the Security National policy, as a driver of the Defendant’s vehicle, Plaintiff was not entitled to PIP benefits under the Security National insurance policy.

There was no coverage under the Security National insurance policy by operation of Florida Statutes or the express terms of the Security National policy under the circumstances of this loss event. As such, and consistent with Florida Statues, Defendant is required to provide PIP coverage since Plaintiff does not qualify for PIP coverage under any other policy, and was driving a vehicle owned by Defendant. Since Defendant, as aself-insured, is compelled to extend PIP coverage consistent with the PIP statute, Defendant is required to extend coverage to Plaintiff as a “person operating the insured motor vehicle”. See 627.736(1), Fla. Stat.

While Defendant maintains that Plaintiff is excluded from Defendant’s coverage, Florida case law fully supports Plaintiff’s position. In Reeves v. Miller and State Farm Mut. Auto. Ins. Co., 418 So. 2d 1050 (Fla. 5th DCA 1982), the Court held:

“Insurance provided to comply with a statutory requirement must comply with the statute. A policy purporting to provide the required statutory coverage but containing exclusions not contemplated by the statute does not provide the required coverage. Since the unauthorized exclusions are contrary to public policy as established by the statute, they are deemed inapplicable and disregarded and the policy is enforced as if it were in express compliance with the statutory requirements.”

In Pearson v. State Farm Mutual Automobile Insurance Company and Allstate Insurance Company, 560 So. 2d 416 (Fla. 2nd DCA 1990), the insured filed a declaratory judgment action against two insurers contending that one of the insurers was responsible for payment of PIP benefits. Pearson and her fiancé, Robert Taylor, jointly owned an Oldsmobile car. Taylor carried PIP coverage with State Farm, but Pearson was not listed as an additional name insured. Pearson was injured while a passenger in a vehicle insured by Allstate. Both insurers denied coverage. As here, the insurer of the guest vehicle, (Allstate), denied coverage contending that Pearson, as the owner of a motor vehicle, was required to have insurance. The insurer for the Pearson-owned vehicle, denied coverage because Pearson was not an occupant of the insured vehicle and was not listed as a named insured.

The Court was faced with the identical issue presently before this Court:

“Pursuant to Florida’s motor vehicle no-fault law and its policy with Taylor, State Farm was required to provide coverage for its named insured, relatives residing in the same household, drivers and passengers of the insured motor vehicle, and those non-occupants who were struck by the vehicle. See § 627.736(1), Fla.Stat. (1987). Although clearly a legal title holder and thus an owner of the Oldsmobile according to section 627.732(3), Florida Statutes (1987), Pearson was not a named insured under the State Farm policy. Furthermore, she does not fit into any of the other insured categories under the language of the policy. The Florida motor vehicle no-fault law does not require all owners to be listed as named insureds on policies which insure a specific motor vehicle. Indeed, the definition of “named insured” expressly recognizes that an owner may not always be a named insured. § 626.732(2), Fla.Stat. (1987). Hence, State Farm was not contractually or statutorily required to insure Pearson, and she was not entitled to recover from State Farm.” Id. @ 417-418.

Since the State Farm policy did not provide coverage to the insured, Allstate was responsible for providing PIP benefits as the insurer for the host vehicle. The Pearson Court also addressed the impact of Sec. 627.736(4), Florida Statutes (1987)¹: “We believe that the exception to coverage provided in section 627.736(4)(d)(4)(a), only applies if the owner required to have insurance has failed to arrange for its purchase. It does not apply when the required insurance has been purchased and simply does not insure the owner.” Id. @ 418. The Court further opined:

“We interpret the requirement of Sec. 627.733(1) that each owner must “maintain security” to mean that each owner must be sure the car is insured. It does not require each owner to buy a separate policy.”Id.

In Defendant’s Motion for Summary Judgment, Defendant seeks to distance itself from the ruling in Pearson — a 1990 case — because of its age. Defendant overlooks that the statutory language analyzed by the Pearson Court is the same language at issue in this case. There have been no “revisions” or “reincarnations” of the subject provision as asserted by Defendant. There is also no contrary case law, nor unfavorable treatment of the Pearson case.

In Direct General Ins. Co. v. Vreeman Enterprise Leasing, et al., 943 So. 2d 914 (Fla. 1st DCA 2006) [31 Fla. L. Weekly D3017c], the lower court wrongly found that Direct General was the primary PIP provider instead of Enterprise — the rental car company. Direct General argued that its PIP policy definitions — which were consistent with 627.736(1), Fla. Stat. — defeated Enterprise’s effort to shift their statutory obligation to provide PIP coverage for the claimants who were occupants of an Enterprise car. Similar to the present case, the claimants were not “named insureds” or “relatives of the named insured”. Nor were the claimants occupants of “the insured motor vehicle”. Under the facts of the case, Direct General was “not required to provide the claimants with PIP coverage pursuant to the Florida Motor Vehicle No Fault Law or by the terms of the policy it issued to the claimants”. Id. @ 917.

Defendant has cited no case law in support of its Motion, and cannot escape the effect of the relevant Florida case law cited herein. The owner of a motor vehicle must maintain security as required by F.S. §627.733(3) which defines those benefits and exemptions contained in ss. 627.730-627.7405. That coverage is found at 627.736(1):

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 . . . (emphasis added).

In the present case, Plaintiff owned a motor vehicle and the insurance on that vehicle provided coverage to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in that motor vehicle and other persons struck by such motor vehicle. Thus, Plaintiff complied with the requirements of F.S. §627.733(3). Due to the unique facts of this case, Plaintiff was not insured under the Security National policy while occupying the Enterprise vehicle.

IT IS HEREBY ORDERED THAT:

1. Plaintiff’s Motion for Final Summary Judgment is GRANTED;

2. Defendant shall provide No-Fault benefits to Plaintiff as defined in F.S. 627.730-627.7405;

3. Plaintiff’s medical providers shall have 45 days from the date of this order to submit any potential claims to Defendant; and

4. The Court reserves jurisdiction to determine Plaintiff’s entitlement to attorney fees and cost.

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¹Sec. 627.736(4)(d)(4)(a), Florida Statutes (1987) now appears as Sec. 627.736(4)(e)(4)(a), Florida Statutes.

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