26 Fla. L. Weekly Supp. 242a
Online Reference: FLWSUPP 2603WADDInsurance — Personal injury protection — Coverage — Vehicle owned by insured but not covered under PIP policy — Where claimant was injured while driving vehicle of which he was beneficial owner but not title owner, and claimant had not notified his PIP insurer of beneficial ownership of accident vehicle or added accident vehicle as insured vehicle under his policy, insurer does not owe PIP coverage for loss
STEVEN CANTOR, D.C., P.A. d/b/a BROWARD COUNTY PAIN & REHABILITATION a/a/o Richard Waddle, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY AND EQUITY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO15009656 (70), Civil Division. January 25, 2018. John D. Fry, Judge. Counsel: Scott Leaser, for Plaintiff. Kevin P. Sincerbox, for Defendant Progressive. Michael Nixon, for Co-Defendant Equity.
ORDER GRANTING DEFENDANT PROGRESSIVE’SMOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come on to be heard on Defendant Progressive’s Motion for Final Summary Judgment as to Progressive’s Liability for coverage on January 11, 2018, and the Court having heard argument of counsel, and being otherwise advised in the premises, the Court finds as follows:FINDINGS OF FACT AND LAW
On December 10, 2015, Plaintiff brought this suit against the Defendants, Progressive Select Insurance Company (“Progressive”) and Equity Insurance Company (“Equity) alleging breach of contract for failure to pay personal injury protection benefits for treatment rendered to Richard Waddle as a result of an August 10, 2013 motor vehicle accident. The subject Progressive Claim Number was 134447511. Plaintiff’s assignor, Richard Waddle (“Claimant”) was driving the accident vehicle, a 2011 Kia Forte, insured by Equity Insurance, on the date of loss. Claimant was not the title owner of the accident vehicle. Claimant was listed on the Equity Policy, but was not listed as a named insured. Claimant owned a separate vehicle with Progressive, a 1990 Ford Econo, that was not involved in the subject loss. The undisputed record evidence indicates that the Claimant in this case, Richard Waddle, was a beneficial owner of the accident vehicle at the time of loss.FINDINGS
The unrefuted deposition testimony clearly established that Claimant had exclusive possession and control of the accident vehicle, was making payments on the vehicle, and was using it as his primary vehicle for daily use. See State Farm Mut. Auto Ins. Co. v. Hartzog, 917 So.2d 363 (Fla. 1st DCA 2005) [31 Fla. L. Weekly D129a], [Beneficial ownership of an automobile is determined by the overt acts of the buyer and seller at the time of the sale agreement and thereafter.] As established in the Affidavit of Progressive’s Adjuster, Edward Martin, Claimant failed to notify Progressive of his beneficial ownership interest in the accident vehicle as required by Progressive’s policy of insurance, and the accident vehicle was not added as an insured vehicle under the Progressive policy of insurance. As such, the subject loss occurred in a motor vehicle owned by the insured, but not covered under the Progressive policy of insurance, which is a valid exception under Progressive’s policy. Pursuant to s. 627.736 (2)(a), Fla Stat. (2013):
(2) Authorized exclusions. — Any insurer may exclude benefits:
(a) For injury sustained by the named insured and relatives residing in the same household while occupying another motor vehicle owned by the named insured and not insured under the policy or for injury sustained by any person operating the insured motor vehicle without the express or implied consent of the insured. (Emphasis added).
As such, Progressive does not owe PIP coverage for the subject loss that occurred in the accident vehicle, which was insured by Equity. There may be multiple beneficial owners of a motor vehicle pursuant to Florida Law. See Christensen v. Bowen, 140 So.3d 498 (Fla. 2014) [39 Fla. L. Weekly S214a]. [Ex-husband was vicariously liable as co-owner where he was listed on the car title for a car for which he had no possession, custody or control since the date of purchase]. Therefore, the undisputed deposition testimony establishing that Claimant was in fact a beneficial owner of the accident vehicle is all that is needed to determine that Progressive does not owe coverage for the subject loss.
Because Claimant was a beneficial owner of the accident vehicle, Progressive does not owe coverage pursuant to s. 627.736(2), Fla. Stat (2013), and the subject policy of insurance.
ORDERED AND ADJUDGED that Progressive’s Motion for Final Summary Judgment is GRANTED. Progressive is dismissed with prejudice from this case.
