22 Fla. L. Weekly Supp. 1111d
Online Reference: FLWSUPP 2209BLANInsurance — Personal injury protection — Coverage — Owner of vehicle for which security was required by law — Inoperable vehicle — Where documents demonstrate that claimant who was injured while passenger in vehicle owned by his father-in-law owned a registered and insured vehicle at time of accident, claimant’s vehicle required some repair work but was never in storage and was driveable, and claimant intended to repair and maintain vehicle for use, claimant’s vehicle was not inoperable — Summary judgment is entered in favor of insurer
RADIOLOGY REGIONAL CENTER, P.A. a/a/o RAUL BLANCO, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 20th Judicial Circuit in and for Lee County, Small Claims Action. Case No. 14-SC-443. April 21, 2015. Josephine M. Gagliardi, Judge. Counsel: Brian Goldstein, Ellis Ged, and Bodden, Boca Raton, for Plaintiff. Stephanie S. Hoffman, Conroy Simberg, Fort Myers, for Defendant.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
THIS CAUSE comes before the Court on Defendant’s “Motion For Final Summary Judgment” filed March 31, 2014. Having reviewed the motion, Plaintiff’s response, the case file, and the applicable law, and having heard argument by the parties on February 16, 2015, the Court finds as follows:
1. By Palm Beach County Court order filed February 10, 2014, the complaint was transferred from Palm Beach County by agreement of the parties.
2. In the complaint, Plaintiff claimed breach of contract for Defendant’s failure to pay personal injury protection (PIP) coverage payments to Plaintiff as assignee of Mr. Blanco. The undisputed facts are that Mr. Blanco was a passenger in a vehicle driven by his wife, and owned by his father in law, Mr. De La Rosa, who insured the vehicle with Defendant. Mr. Blanco sought medical care following the accident from Plaintiff, and assigned his benefits to Plaintiff.
3. In the motion for summary judgment, Defendant argued that Mr. Blanco was personally liable under his own insurance and was not entitled to benefits under Mr. De La Rosa’s policy because Mr. Blanco owned a vehicle for which security is required under Fla. Stat. §§627.736(4)(e)(4) and 627.733(1)(a). In support of the motion, Defendant attached numerous documents, as well as filed an affidavit, motor vehicle records, and the deposition of Mr. Blanco.
4. In its reply, Plaintiff argued that there are genuine issues of material fact because Mr. Blanco’s vehicle was inoperable at the time of the accident.
5. At the hearing, Defendant argued that the issue was whether Mr. Blanco’s vehicle was operable at the time of the accident. Defendant argued that Mr. Blanco stated in his deposition that he drove the car a little, thus the car was not completely inoperable. Plaintiff argued, without citing any legal authority, that there was a difference between a vehicle running and being operable. Plaintiff noted that Mr. Blanco stated in the deposition that the vehicle was not driveable.
6. A motion for summary judgment may be granted when there is no material issue of disputed fact and the moving party is entitled to judgment as a matter of law. Davis v. Hathaway, 408 So. 2d 688, 689 (Fla. 2d DCA 1982). The court may not weigh the evidence. Id. The initial burden of proof is on the moving party, and if the burden of proof is met, the burden shifts to the nonmoving party to prove a genuine issue of fact. Nowicki v. Cessna Aircraft Co., 69 So.3d 406, 409 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D2082a]; Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So. 2d 1138, 1139-1140 (Fla. 2d DCA 2000) [25 Fla. L. Weekly D2500b].
7. Fla. Stat. §627.736(4)(d)(3) provides that an insurer shall pay PIP benefits for bodily injury sustained by a relative of the owner residing in the same household, provided the relative is not “himself the owner of a motor vehicle with respect to which security is required . . .” Fla. Stat. §627.733(1) provides that every owner of a motor vehicle required to be registered and licensed shall maintain security. Fla. Stat. §320.01(1)(a) defines a motor vehicle as an automobile operated over the public streets and highways, used as a means of transporting persons or property, and propelled by power other than muscular power.
8. In Sherman v. Reserve Ins. Co., 350 So. 2d 349, 351 (Fla. 4th DCA 1977), the Fourth District held that a vehicle rendered inoperable due to mechanical failure or defect did not meet the definition of a motor vehicle required to be registered and licensed. Considerations in making this determination include: inoperability of the vehicle; length of time inoperable; whether the vehicle was in storage; the owner’s subjective intent to maintain the vehicle for use; whether the vehicle was currently registered and licensed at the time of the accident; and whether insurance was allowed to lapse due to factors relating to inoperability of the vehicle. See Fortune Ins. Co. v. Oehme, 453 So. 2d 920 (Fla. 5th DCA 1984), citing Bedgood v. Hartford Accident and Indemnity Co., 384 So. 2d 1363 (Fla. 1st DCA 1980).
9. The documents provided by Defendant in support of the motion demonstrate there is no genuine issue of material fact. The documents show that Mr. Blanco owned a Chevrolet Sebring, and that the vehicle was registered and insured at the time of the accident (Deposition exhibit 1). While Mr. Blanco was not sure where he was living at the time of the accident, he was not living with his father in law (Deposition pp. 5-6, 42, 58). Mr. Blanco’s deposition testimony and the estimate from a repair shop indicate that the vehicle needed repairs to the transmission, brakes, and air conditioning system, and that the mechanic made partial repairs (Deposition pp. 53-54; exhibits 3-4). Mr. Blanco stated that he attempted repairs himself after that, and that he drove the vehicle around the neighborhood and on the main roads (Deposition pp. 16, 31, 46-47, 53-54). Mr. Blanco stated that the car blew a lot of smoke, and the “car never stopped 100 percent, but it was not good” (Deposition p. 50). It is clear from the records and from Mr. Blanco’s deposition that the vehicle was insured and registered, was never in storage, was driveable, and that Mr. Blanco intended to repair and maintain the vehicle for use. The Court finds there is no genuine issue of fact because the documents supporting the motion show the vehicle was not inoperable at the time of the accident.
Accordingly, it is
ORDERED AND ADJUDGED that the Defendant’s motion for summary judgment is GRANTED.
