27 Fla. L. Weekly Supp. 1003a

Online Reference: FLWSUPP 2712DELAInsurance — Personal injury protection — Coverage — Motorized scooter — Trial court erred in entering summary judgment in favor of insured who was injured while driving motorized scooter — There was genuine issue of material fact as to whether scooter was “self-propelled vehicle” such that insured was barred from recovering under terms of PIP statute and policy that provide coverage only when insured is occupant of motor vehicle or not occupant of self-propelled vehicle at time of accident — Although “self-propelled vehicle” is not defined in policy or statute, features of scooter suggest that it is self-propelled vehicle within ordinary meaning of that term where scooter has two wheels and 49cc motor, is used for transporting persons on roads, and lacks pedals permitting human propulsion

GEICO GENERAL INSURANCE COMPANY, Appellant/Defendant, v. SHANNAN DELAROSA, Appellee/Plaintiff. Circuit Court, 16th Judicial Circuit (Appellate) in and for Monroe County. Case No. 18-AP-07-P. L.T. Case No. 16-SC-100-P. September 20, 2019. Counsel: Rebecca O’Dell Townsend and Scott Dutton, Dutton Law Group, P.A.; and Rebeca Quintero, Law Office of Haydee De La Rosa-Tolgyesi, for Appellant. Chris Kasper, Ovadia Law Group, P.A., Boca Raton, for Appellee.

OPINION

(TIMOTHY J. KOENIG, J.) Appellant GEICO General Insurance Company (“GEICO” or “Appellant”) appeals from a final judgment entered by the County Court in favor of Appellee and Plaintiff below Shannan Delarosa (“Delarosa” or “Appellee”). The issue in this case is a matter of first impression: whether the motorized scooter Delarosa rode during an accident with another vehicle is a “self-propelled vehicle,” such that she is barred from recovering personal injury protection (PIP) benefits under the auto insurance policy she purchased from GEICO, and under the Florida Motor Vehicle No-Fault Law (the “No-Fault Law”), Fla. Stat. §§ 627.730-627.7405 (2019). The County Court (Hon. Sharon Hamilton) ruled for Delarosa on cross-motions for summary judgment and entered final judgment in Delarosa’s favor on October 1, 2018. GEICO timely appealed.

Upon review, the Court finds that there are genuine issues of material fact as to whether Delarosa’s scooter is a “self-propelled vehicle” as that term is used in her insurance contract with GEICO, and in the relevant statutes. Accordingly, the Court now REVERSES the County Court’s summary judgment in Delarosa’s favor, AFFIRMS the court’s order denying GEICO’s motion for summary judgment, and REMANDS the case for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

The undisputed facts are as follows: On December 28, 2015, Delarosa was involved in an automobile accident while riding a motorized scooter. At the time of the accident, she was covered by an automobile insurance policy she purchased from GEICO, which included no-fault PIP coverage, as required by law. Under the terms of the policy, and the corresponding PIP Statute (the “PIP Statute”), Fla. Stat. § 627.736 (2019), an insured is entitled to benefits for bodily injury sustained in an accident with a motor vehicle without regard to fault if, at the time of the accident, the insured was either (a) herself an occupant of a “motor vehicle” or (b) not an occupant of a “self-propelled vehicle.” See Fla. Stat. § 627.736(e)(1) (2019). (Appellant has interpreted this latter provision to mean that the accident victim was a “pedestrian.”)

On November 10, 2016, Delarosa initiated this lawsuit alleging breach of contract after GEICO denied her claim for reimbursement of medical bills she allegedly incurred as a result of injuries sustained from the accident. On June 29, 2017, GEICO filed its Answer. In it, GEICO states its position that Delarosa is not entitled to PIP benefits because the “49cc two-wheeled scooter” she was riding at the time of the accident is not a “motor vehicle” as defined by the subject insurance policy and the relevant statutes and because Delarosa was not a “pedestrian,” i.e., she was riding a “self-propelled vehicle,” at the time of the loss. (R. at 11).

Delarosa filed a motion for summary judgment on February 12, 2018. In her motion, she concedes that her scooter is not a “motor vehicle” as defined by the policy or the relevant statutes but maintains that it is also not a “self-propelled vehicle” as that term is construed under the relevant case law. GEICO did not file an opposition to Delarosa’s motion, but instead responded with a motion for summary judgment of its own, filed on June 13, 2018, reasserting the arguments raised in its Answer. In support of its motion, GEICO attached an affidavit from litigation adjuster Nina Gomes, who attested that “PIP coverage was denied as the scooter [Delarosa] was traveling in was only 49cc and only has 2 wheels — therefore it would not meet the definition of a motor vehicle. Further, as the scooter is self-propelled [Delarosa] would not meet the definition of a pedestrian.” (R. at 36). Delarosa did not object to the admissibility of GEICOS’s evidence or file an opposition to GEICO’s motion.¹

On July 2, 2018, the County Court held a hearing on the parties’ competing motions for summary judgment, and on August 8, 2018, without a written opinion, granted Delarosa’s motion and denied GEICO’s motion. (R. at 95). The County Court entered final judgment in favor of Delarosa on October 1, 2018. This appeal followed.

II. DISCUSSION

The Court reviews the lower court’s entry of summary judgment de novo. Barcelona Hotel, LLC v. Nova Cas. Co., 57 So. 3d 228, 230 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D458a]. Summary judgment is proper if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130-31 (Fla. 2000) [25 Fla. L. Weekly S390a]. In determining whether summary judgment is appropriate, the court must decide whether the record evidence establishes “irrefutably that the nonmoving party cannot prevail were a trial to be held.” Redlands Ins. Co. v. CEM Site Constructors, Inc., 86 So. 3d 1259, 1261 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D1115a] (emphasis in original). In reviewing summary judgment on appeal, the court sitting in appellate capacity must consider the evidence in the light most favorable to the non-moving party “and if the slightest doubt exists, summary judgment must be reversed.” Id. at 206.

A. Preservation of Issues on Appeal

As a threshold matter, the Court addresses Delarosa’s contention that GEICO has not preserved the issues raised on appeal because GEICO: (1) did not include a transcript of the summary judgment hearing or an executed affidavit from its litigation adjuster in the record on appeal; and 2) did not file a written opposition or evidence to Delarosa’s motion for summary judgment below.

Delarosa’s first point has been rendered moot by the Court’s June 28, 2019, order granting Appellant’s motion to supplement the record on appeal. Delarosa’s contention is also inconsistent with clearly established principles of appellate review, which state that while a summary judgment hearing transcript might be helpful to an appellate court, it is not necessary for [the court’s] de novo review” of a summary judgment order. Muchnick v. Goihman, 245 So. 3d 978, 981 n. 1 (Fla. 3d DCA 2018) [43 Fla. L. Weekly D986b].

Delarosa’s second point is refuted by the record, which shows that the County Court construed GEICO’s motion for summary judgment as both an opposition to Delarosa’s motion and as GEICO’s own motion for summary judgment, hearing argument on both motions at the same hearing and deciding both motions on the same date because the motions raised the same issue: whether the scooter Delarosa drove at the time of her accident is a “self-propelled vehicle.” This distinguishes this case from the cases Delarosa cites where the appellate court summarily affirmed the trial court because based on the record presented the court was “unable to review the factual or legal basis for the trial court’s decision.” See, e.g., Rose v. Clements, 973 So. 2d 529, 530 (Fla. 1st DCA 2007) [33 Fla. L. Weekly D56a]. Here, even without the benefit of a written decision, the record makes abundantly clear the issues the parties raised below, as GEICO raised its primary defense in its Answer and both parties briefed the issue in their respective motions for summary judgment. Thus, the Court finds that GEICO has preserved the issues before the Court on appeal.

B. PIP Benefits Under the Insurance Contract

In deciding whether the County Court erred in ruling that Delarosa is entitled to PIP benefits as a matter of law, the first issue the Court must address is whether there are genuine issues of material fact as to Delarosa’s eligibility for PIP benefits under the terms of her agreement with GEICO. To be clear, the factual record before the Court is fairly thin. Delarosa submitted no evidence or affidavits in support of her motion for summary judgment, attaching instead only the cases on which her argument primarily relies. Conversely, while GEICO submitted with its motion a composite exhibit attached to the litigation adjuster affidavit, nothing in this composite exhibit provides competent, authenticated evidence linking Delarosa to the vehicle purportedly depicted in the exhibit or otherwise proving the vehicle’s alleged characteristics.² Nonetheless, the parties have made two representations to the Court that weigh heavily in the Court’s analysis and that allow the Court to reach its ultimate conclusion: (1) that the scooter lacks pedals permitting propulsion by human power and (2) that the scooter is powered by a 49-cubic centimeter engine.

Questions of insurance policy interpretation are questions of law and are subject to de novo review. Penzer v. Transportation Ins. Co., 29 So. 3d 1000, 1005 (Fla. 2010) [35 Fla. L. Weekly S73a]. In interpreting insurance contracts, courts follow “the generally accepted rules of construction, meaning that insurance contracts are construed according to their plain meaning, with any ambiguities construed against the insurer and in favor of coverage.” Id. (internal citation omitted). “If the relevant policy language is susceptible to more than one reasonable interpretation. . .the insurance policy is considered ambiguous.” Id. (citation omitted). “To find in favor of the insured on this basis, however, the policy must actually be ambiguous.” Id. (emphasis in original). “A provision is not ambiguous simply because it is complex or requires analysis. . . . If a policy provision is clear and unambiguous, it should be enforced according to its terms.” Id. (internal citation omitted).

Here, the subject policy states that PIP benefits will be provided “for injuries incurred as a result of bodily injury, caused by an accident arising out of the ownership, maintenance or use of a motor vehicle and sustained by. . . [the insured] while occupying a motor vehicle or, while a pedestrian through being struck by a motor vehicle. . . .” (R. at 51, emphasis added). “Motor vehicle,” in turn, is defined by the policy in part as “any self-propelled vehicle of four or more wheels which is of a type both designed and required to be licensed for use on the highways of Florida. . . .” (R. at 50). “Pedestrian” is defined as “a person while not an occupant of any self-propelled vehicle.” (R. at 50).

Delarosa does not dispute that the motorized scooter she rode at the time of the accident is not a “motor vehicle” as defined by the policy. Instead, she claims she is entitled to PIP benefits because, she argues, at the time of the accident she was a “pedestrian” — that is, she was “not [the] occupant of any self-propelled vehicle.” Delarosa bases this claim on two propositions: (1) that the scooter is “not a vehicle within the ordinary meaning of that term” and (2) that the term “self-propelled vehicle” is not defined by the policy and is therefore ambiguous and should be construed against the insurer. (Supp. Br. at 9). Neither of these arguments are persuasive.

“The failure to define a term involving coverage does not necessarily render the term ambiguous.” Barcelona Hotel, 57 So. 3d at 230. “Instead, when an insurance coverage term is not defined, the term should be given its plain and ordinary meaning.” Id. at 230-31. “Where a policy does not define a term, courts often discern the plain meaning of the term by relying on other sources, such as dictionaries, to determine the accepted meaning. . . .” Exotic Motorcars and Jewelry, Inc. v. Essex Ins. Co., 152 So. 3d 673, 676 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D2407a].

Watson v. Prudential Property & Cas. Ins. Co. (Watson I), 696 So. 2d 394 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D1439a], is instructive. In that case, the court applied a “plain meaning analysis in deciding whether an employee shuttle bus was a “motor vehicle” for purposes of an automobile insurance contract. Like the insurance policy in this case, there, the definition of “motor vehicle” tracked the No-Fault Law definition, which, at the time, excluded vehicles “used in mass transit.” Id. at 395. Relying on dictionary definitions of “mass transit,” the court held that the employee shuttle bus was a “motor vehicle” because it was not a system of conveyance available to the mass of the people, but instead was open exclusively to company employees to shuttle them to and from the company parking lot. Id. at 396-97. See also Exotic Motorcars, 152 So. 3d at 676-77 (using dictionary definitions and plain meaning analysis to construe the term “test drive” in an insurance contract); Barcelona Hotels, 57 So. 3d at 230-32 (similar analysis, construing the term “vehicle” in an insurance policy and finding that an excavator is a “vehicle” under the terms of the agreement).

Similarly, here, the Court can discern the meaning of “self-propelled vehicle,” as that term is used in Delarosa’s insurance policy, through a plain meaning analysis. The Merriam-Webster dictionary defines “self-propelled” as “containing within itself the means for its own propulsion.”³ The Cambridge Dictionary, meanwhile, defines “self-propelled” as “able to move by its own power.”⁴ And Dictionary.com defines “self-propelled,” as it pertains to vehicles, as a vehicle “propelled by its own engine, motor, or the like, rather than drawn or pushed by a horse, locomotive, etc.”⁵ These same dictionaries define “vehicle,” respectively, as “a means of carrying or transporting something. . .such as. . . [a] motor vehicle”;⁶ “a machine, usually with wheels and an engine, used for transporting people or goods on land, especially on roads”;⁷ and “any means in or by which someone travels or something is carried or conveyed; a means of conveyance or transport.”⁸

Drawing on these sources, the Court finds that there are genuine issues of material fact as to whether the scooter Delarosa rode at the time of the accident is a “self-propelled vehicle” under the plain and ordinary meaning of that term. The parties have represented that Delarosa’s scooter has wheels and an engine and is used for transporting (at the very least) persons on the road. The parties have further represented that the scooter lacks pedals permitting human propulsion and that, instead, it is powered by a 49-cubic centimeter engine. While the record is devoid of competent evidence establishing that the particular scooter Delarosa rode meets these characteristics, if proven true before a trier of fact, these features would strongly suggest that, by definition, the scooter is self-propelling, thus creating a triable issue of material fact.

Delarosa contends that this particular scooter is not a “self-propelled vehicle,” as that term is commonly understood, by measure of its small engine (in Delarosa’s characterization). The size of the engine, however, has no bearing on the function of the scooter as a means of transport, i.e., on its status as a vehicle. Delarosa further contends that because the term “self-propelled vehicle” is not defined by the policy, the term must be strictly construed against the insurer, GEICO. As Appellant correctly points out, however, that rule applies only when the policy language is actually ambiguous and susceptible to more than one reasonable interpretation. Prenzer, 29 So. 3d at 1005. As explained above, the plain and ordinary meaning of “self-propelled vehicle” can be ascertained by relying on traditional tools of textual interpretation. Further, Delarosa has not identified any reasonable alternative interpretation of “self-propelled vehicle” to which the term is susceptible, and the Court cannot discern one either. Thus, the term is not ambiguous, and the rule of strict construction does not apply.

C. PIP Benefits Under § 627.736

Even if Delarosa is ineligible to recover PIP benefits under the terms of her insurance contract with GEICO, she might nevertheless be entitled to collect the benefits under the pertinent provisions of the No-Fault Law that govern such insurance policies. Thus, the second issue the Court must address is whether there are genuine issues of material fact as to Delarosa’s eligibility for PIP benefits under the relevant provisions of the PIP Statute, Fla. Stat. § 627.736 (2019).

Florida’s No-Fault Law creates a comprehensive statutory scheme to “provide for medical, surgical, funeral, and disability insurance benefits without regard to fault, and to require motor vehicle insurance securing such benefits,” Fla. Stat. § 627.731 (2019). The PIP Statute is “an integral part of the no-fault statutory scheme. . .requir[ing] motor vehicle insurance policies issued in Florida to provide PIP benefits for bodily injury arising out of the ownership, maintenance, or use of a motor vehicle.” GEICO Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So. 3d 147, 152-53 (Fla. 2013) [38 Fla. L. Weekly S517a]. That statute states, in relevant part, that “[t]he insurer of the owner of a motor vehicle shall pay personal injury protection benefits for. . .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.” Fla. Stat. § 627.736(e)(1) (2019). Section 627.736 thus creates a guarantee of minimum coverage for personal injuries sustained in an accident with a motor vehicle, without regard to fault, where the insured either (a) was herself an occupant of a motor vehicle or (b) was not the occupant of a self-propelled vehicle.

In this case, Delarosa concedes that the scooter she rode at the time of the accident, which has only two wheels, is not a “motor vehicle” for purposes of § 627.736 because it does not meet the applicable statutory definition, which defines a motor vehicle for purposes of the No-Fault Law, in part, as “any self-propelled vehicle with four or more wheels which is of a type both designed and required to be licensed for use on the highways of the state. . . .” Fla. Stat. § 627.732(3) (2019). Therefore, she is entitled to PIP benefits under § 627.736 only if her scooter is not a “self-propelled vehicle” as that term is used in the statute.

“The term ‘self-propelled vehicle’ is not defined for the purpose of section 627.736 or any other related statute, so [courts] must therefore interpret the term in its normal and ordinarily accepted usage.” Esker v. Nationwide Mut. Fire Ins. Co. . 593 So. 2d 303, 303 (Fla. 2d DCA 1992). “As always, legislative intent is the polestar that guides a court’s inquiry under the No-Fault Law, including the PIP Statute.” Virtual Imagining Services, 141 So. 3d at 154 (internal citation omitted). “Such intent is derived primarily from the language of the statute. Where the wording of the Law is clear and amenable to a logical and reasonable interpretation, a court is without power to diverge from the intent of the Law.” Id. (internal citation omitted).

Here, Delarosa urges the Court to conclude that her motorized scooter is not a “self-propelled vehicle” as that term is used in § 627.736(e)(1), citing two cases — State Farm Mut. Auto. Ins. Co. v. Link., 416 So. 2d 875 (Fla. 5th DCA 1982), and Velez v. Criterion Ins. Co., 461 So. 2d 1348 (Fla. 1984). In Link, the court considered whether a moped is a “motor vehicle,” a “self-propelled vehicle,” or neither, under a previous version of this statute. In concluding that a moped is neither, the court began by noting two features of the definition of “motor vehicle” in the then-operative version of § 627.732. First, it explicitly excluded mopeds from the definition of “motor vehicle.” Second, it expressly incorporated the definition for “moped” in chapter 316, which, at the time, was subsumed in the definition of “bicycle,” Fla. Stat. § 316.003(2) (1982), distinct from “motor vehicles,” Fla. Stat. § 316.003(21) (1982), and “vehicles” more generally, Fla. Stat. § 316.003(64) (1982). Link, 416 So. 2d at 877. Based on these features of the law, the court reasoned that a moped is not a “self-propelled vehicle” under § 627.736 because it is not a “vehicle” at all, but instead is a “bicycle,” as those terms were defined by the then-applicable statutes. Id. at 878. The Florida Supreme Court adopted the reasoning in Link in Velez, and in subsequent cases lower courts extended the reasoning of these decisions, holding, in various contexts, that a moped is neither a “motor vehicle” nor a “self-propelled vehicle,” but instead is a “bicycle,” for purposes of the PIP Statute and insurance contracts. See, e.g., Prinzo v. State Farm Mut. Auto. Ins. Co. , 465 So. 2d 1364 (Fla. 4th DCA 1985); Lane v. Allstate, Inc., 472 So. 2d 823 (Fla. 4th DCA 1985); Ortiz v. Bankers Standard Ins. Co., 475 So. 2d 1012 (Fla. 3d DCA 1985).

Delarosa’s reliance on Link and Velez is unavailing for two reasons. First, the holding in those cases has been largely abrogated by subsequent amendments to the No-Fault Law, which cast doubt on the cases’ continued vitality. In its current form, § 627.732, which has been amended more than a dozen times since Link and Velez were decided, no longer expressly excludes “mopeds” from the definition of “motor vehicle,” Fla. Stat. § 627.732(3) (2019), and, in fact, does not mention the word “moped” at all. Nor does the statute any longer expressly incorporate the definitions in chapter 316, which, in any case, have been amended to separate out the definition of “moped,” Fla. Stat. § 316.003(41) (2019), from that of “bicycle,” Fla. Stat. § 316.003(4) (2019). Thus, because Link and Velez relied on features of the statutory framework that no longer exist, it is unclear the extent to which the reasoning in those cases continues to apply.

Second, even assuming Link and Velez are still good law, the rule from those cases is of no help to Delarosa because her motorized scooter is not a moped. Section 316.003 establishes the criteria a vehicle must meet to be classified as a moped, each of which is set up by the mandatory nature of the statute’s language as a necessary requirement for a vehicle to meet the statutory definition. That statute states in relevant part that, among other things, a “moped” is a “vehicle with pedals to permit propulsion by human power.” Fla. Stat. § 316.003(41) (2019). Here, it is undisputed that Delarosa’s scooter does not have pedals; thus, under a straight-forward reading of the statute, it is not a moped and Link and Velez do not apply. Delarosa argues that her scooter is a moped because it “has almost all of the defining characteristics of a moped.” (Supp. Br. at 12). “Almost,” however, in this context, is not enough. A vehicle must meet all the requirements set out in the statute to fall within the statutory definition.

The Court agrees with GEICO that Miller v. Allstate Ins. Co., 560 So. 2d 393 (Fla. 4th DCA 1990), and its progeny control the outcome in this case. In Miller, the Fourth District Court of Appeal considered whether the occupant of a lawnmower-tractor was entitled to PIP benefits under § 627.736. There, as here, it was undisputed that the vehicle at issue did not meet the statutory definition of “motor vehicle” under the No-Fault Law and so did not entitle the claimant to PIP benefits under the first prong of the PIP Statute. Thus, as here, the question of whether the insured was entitled to PIP benefits turned on whether the accident victim’s vehicle, i.e., the lawnmower-tractor, was a “self-propelled vehicle” as that term is used in the second prong of the PIP Statute. In answering that question in the affirmative, the court reviewed the legislative history of the statute, noting that the legislature added the term “self-propelled vehicle” to broaden the range of vehicles excluded from PIP coverage to include vehicles like ATVs, ditchdiggers, and cranes, which, under previous versions of the statute, may have been entitled to PIP coverage. Id. at 394. The court distinguished these vehicles from mopeds and bicycles, which courts, like those in Link and Velez, had earlier held were not self-propelled vehicles, observing that unlike mopeds and bicycles, this other set of vehicles “requir[ed] no outside power source.” Id.

Miller was subsequently cited with approval by the Second District Court of Appeal in Esker. In that case, the court considered whether the occupant of a school bus was entitled to PIP benefits under § 627.736. As in Miller and as in this case, there was no dispute as to whether the school bus was a “motor vehicle” entitling its occupants to PIP benefits under the first prong of the PIP Statute because the definition of “motor vehicle” in the operative version of the No-Fault Law explicitly excluded “any vehicle which is used in mass transit or public school transportation.” Id. at 304 (citing Fla. Stat. §§ 627.732(1)(b) (1990)). Thus, again, the case turned on whether the accident victim’s vehicle was a “self-propelled vehicle” as that term is used in the PIP Statute. Noting that “[t]he term ‘self-propelled vehicle’ is not defined for the purpose of section 627.736 or any other related statute,” the court found its task to be to “interpret that term in its normal and ordinarily accepted usage.” Id. Under that standard, the court held, “a school bus is clearly a ‘self-propelled vehicle.’ ” Id.

Finally, and of the most significance for this case, the Third District Court of Appeal adopted the reasoning in both Miller and Esker in Progressive Cas. Ins. Co. v. Watson (Watson II), 696 So. 2d 543 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D1730b] — binding precedent in this jurisdiction. In Watson II, the court considered whether an occupant of a jitney⁹ is entitled to PIP benefits under § 627.736. As in previous cases, and as in this case, the claimant conceded her ineligibility for PIP benefits under the first prong of the PIP Statute since the definition of “motor vehicle” in the version of the No-Fault Law in effect at the time explicitly excluded most commercial vehicles and modes of public transportation. Thus, again, the result in the case turned on the definition of “self-propelled vehicle” as that term is used in the PIP Statute. Applying the “normal and ordinarily accepted usage” of that term, as set forth in Esker, and Miller’s definition of a “self-propelled vehicle” as one “requiring no outside power source,” the court in Watson II found that “a ‘jitney’ is clearly a ‘self-propelled vehicle.’ ” Watson II, 696 So. 2d at 545 (citing Esker and Miller).¹⁰

Applying these same principles here, the Court finds that there are genuine issues of material fact as to whether Delarosa’s motorized scooter is a self-propelled vehicle under the PIP Statute, and therefore, that the County Court erred in granting summary judgment in Delarosa’s favor. The parties have stipulated that Delarosa’s scooter does not have pedals permitting human propulsion and that the scooter is powered by its own, self-contained 49-cubic centimeter engine. This creates a triable issue of material fact as to whether the scooter requires any outside power source — if it does not, then Miller applies — and whether the scooter is a self-propelled vehicle under the “normal and ordinarily accepted usage” of that term, as set forth above. While the lack of competent evidence in the record on these points precludes the Court’s reaching the issue conclusively, should these representations be proven true before the trier of fact, there would be a strong presumption that Delarosa’s scooter is a “self-propelled vehicle” for purposes of the PIP Statute, and therefore, that her claim for PIP benefits fails as a matter of law.

Delarosa again falls back on her argument that the scooter is not a “self-propelled vehicle” as that term is used in the PIP Statute because of the scooter’s purported small engine size. Delarosa’s proffered interpretation, however, is at odds with the statutory definition of “vehicle,” which states that a vehicle is “[e]very device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks.” Fla. Stat. § 316.003(102) (2019) (emphasis added). Indeed, as this statutory provision importantly shows, when the legislature intends to carve out an exception to the broad definition of “vehicle” based on a device’s particular characteristics — such as engine size — it does so in explicit terms, just as it did for personal delivery devices and mobile carriers. See Fla. Stat. §§ 316.003(40), 316.003(55) (2019).* * *

Delarosa has, in the proceedings below and throughout this appeal, urged the Court to treat her scooter like a moped for purposes of her claim to PIP benefits because, in her view, her scooter is essentially, or functionally, a moped. This contention, however, misconstrues the role of the courts: In the absence of a clear directive from the legislature in the text of the statute or from a higher court, this Court cannot read into the PIP Statute an exception that stands at odds with the statute’s plain meaning. See Esker, 593 So. 2d at 304 (“We are not at liberty, except in extraordinary circumstances, to take legislative terms and impart some other meaning to that term other than that clearly expressed by the legislature according to the ordinary meaning of the terms used,” even to “prevent what [the party] fears will be harsh results.”).

D. Scope of Relief on Appeal

Having found that there are genuine issues of material fact warranting reversal of the County Court’s final judgment, the Court now addresses the scope of relief on appeal. Appellant in this case has asked the Court to remand with instructions to enter judgment in GEICO’s favor (presumably based on Appellant’s view that it was entitled to summary judgment at the trial court level). As a general matter, a trial court’s order denying a party’s motion for summary judgment is a non-final, non-appealable order. Taggart v. Morgan, 943 So. 2d 250, 250 (Fla. 3d. DCA 2006) [31 Fla. L. Weekly D2800b]. However, under Rule 9.110(h) of the Florida Rules of Appellate Procedure, upon review of a lower tribunal’s final order, “the court may review any ruling or matter occurring before the filing of the notice [of appeal],” including a denial of a motion for summary judgment. See Nationstar Mortgage, LLC v. Craig, 193 So. 3d 74, 77 n. 6 (Fla. 3d DCA 2016) [41 Fla. L. Weekly D1146a] (holding that an order denying a motion for summary judgment “is deemed to have been merged into the final summary judgment” and is thus properly reviewable on appeal).

Here, while at first blush it appears that the scooter Delarosa rode at the time of her accident is a “self-propelled vehicle,” such that she is ineligible to recover PIP benefits under the terms of her insurance contract with Appellant and under the PIP Statute, the evidentiary deficiencies identified in Section II.B., supra, preclude the Court from finding that Appellant is entitled to judgment as a matter of law as the Court is without competent evidence in the record establishing the features and characteristics of the particular scooter Delarosa rode. The determination of the ultimate legal issues in the case, therefore, is more appropriately left to the trier of fact in the first instance, where the parties will have the opportunity to develop the evidentiary record and present argument. See Novotny v. Estate of Dantone, 848 So. 2d 398, 399 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D1485a].

III. CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that the County Court’s final summary judgment in favor of Delarosa is REVERSED, the order denying GEICO’s motion for summary judgment is AFFIRMED, and the case is REMANDED for further proceedings not inconsistent with this opinion.

__________________

¹The affidavit GEICO submitted with its June 13, 2018, motion was not signed by Ms. Gomes. Apparently having caught the error, GEICO filed a virtually identical motion with an executed affidavit the next day, June 14, 2018. This second motion for summary judgment was initially inadvertently omitted from the record on appeal. On June 28, 2019, however, this Court granted GEICO’s motion to supplement the record with the corrected version of the motion. Thus, the Court properly has before it GEICO’s June 14, 2018 motion for summary judgment.

²Specifically, the evidence GEICO submitted with its motion includes: (1) an unauthenticated photograph of a motorized scooter (R. at 86); (2) an unauthenticated printout with data on a vehicle (VIN #: JH2AF60067K50093) (R. at 87); (3) a letter to Appellant’s counsel from the Florida DMV denying a public records request for “information on the owner and registrant of a vehicle” (R. at 85); and (4) a Manufacturer’s Certificate of Origin for VIN #: JH2AF60067K502684 (R. at 89). None of these documents identifies Delarosa as the owner of the vehicle in question, and the Court has no way of knowing whether the vehicle depicted is an accurate representation of her scooter.

³“Self-Propelled” Definition, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/self-propelled (last visited August 16, 2019).

⁴“Self-Propelled” Definition, Dictionary.Cambridge.org, https://dictionary.cambridge.org/dictionary/english/self-propelled (last visited August 16, 2019).

⁵“Self-Propelled” Definition, Dictionary.com, https://www.dictionary.com/browse/self-propelled (last visited August 16, 2019).

⁶“Vehicle” Definition, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/vehicle (last visited August 16, 2019).

⁷“Vehicle” Definition, Dictionary.Cambridge.org, https://dictionary.cambridge.org/dictionary/english/vehicle (last visited August 16, 2019).

⁸“Vehicle” Definition, Dictionary.com, https://www.dictionary.com/browse/vehicle (last visited August 16, 2019).

⁹Jitney Definition, Dictionary.com, https://www.dictionary.com/browse/jitney (last visited August 16, 2019) (“a small bus or car following a regular route along which it picks up and discharges passengers, originally charging each passenger five cents”).

¹⁰These latter two cases (Watson II and Esker) are also important on another point in that they illustrate the legislature’s intent to exclude a set of vehicles from PIP coverage even though those vehicles — unlike ATVs, ditchdiggers, cranes, and lawnmower-tractors — are legally and commonly used on public highways (an issue Delarosa raised in the proceedings below).