27 Fla. L. Weekly Supp. 853a
Online Reference: FLWSUPP 2710PHERInsurance — Personal injury protection — Coverage — Owner of vehicle for which security was required by law — To prove policy exclusion for person who owned vehicle for which security was required by law, insurer was required to prove that vehicle was actually operated on roads of state during relevant registration period, not mere operability — Error to enter summary judgment in favor of insurer where insurer failed to prove what registration period was during relevant time or that vehicle owned by claimant was actually operated during that period
SOUTH MIAMI HEALTH CENTER, INC., a/a/o Pedro Hernandez, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2017-191-AP-01. L.T. Case No. 2011-1136-CC-05. November 21, 2019. On Appeal from the County Court in and for Miami-Dade County, Ivonne Cuesta, County Court Judge. Counsel: Stuart L. Koenigsberg, for Appellant. Ezequiel Lugo, for Appellee.
(Before DARYL E. TRAWICK, LISA WALSH and THOMAS J. REBULL, JJ.)
OPINION
(REBULL, J.) South Miami Health Center appeals a final summary judgment entered in favor of State Farm. Because we conclude that State Farm’s summary judgment evidence failed to show that South Miami Health’s assignee (Pedro Hernandez) owned a motor vehicle that was required to be insured during the registration period, we reverse.
The allegations in this case are that Pedro Hernandez was riding his bicycle on June 30, 2010, when Delkis Porto made contact with him and caused him injuries. Mr. Hernandez received treatment from South Miami Health and assigned to it any right to insurance proceeds he may have arising out of the incident. South Miami Health submitted a claim to State Farm, which had a policy in force covering Ms. Porto and her vehicle. State Farm denied the claim based on language in the policy that excludes coverage where the person making the claim is the owner of their own motor vehicle, which is legally required to have its own no-fault insurance.
The language of the exclusion in the policy provides as follows: “THERE IS NO COVERAGE: . . . 2. FOR ANY PERSON: . . . c. WHO OWNS A MOTOR VEHICLE SUBJECT TO THE NO-FAULT ACT.” The parties agree that this language means that a person is not covered if they own a motor vehicle that was required to be insured at the time of the incident.
State Farm moved for summary judgment and argued that the summary judgment evidence showed that there was no genuine issue of fact that Mr. Pedro Hernandez owned a motor vehicle subject to the no-fault act. Specifically, State Farm sought to conclusively show that Mr. Hernandez owned a 1988 International truck which had to be insured under the Florida Motor Vehicle No-Fault Law.
The first step in the analysis is to look at what the law says with regard to when an owner of a motor vehicle is required to have insurance under the no-fault law.
(1)(a) Every owner or registrant of a motor vehicle, . . . required to be registered and licensed in this state shall maintain security as required by subsection (3) in effect continuously throughout the registration or licensing period.
§ 627.733, Fla. Stat. (2010) (emphasis added). Thus, an owner of a vehicle is required to maintain no-fault insurance continuously throughout the applicable registration or licensing period. The question then becomes, when is an owner required to register their motor vehicle?
(1) Except as otherwise provided in this chapter, every owner or person in charge of a motor vehicle that is operated or driven on the roads of this state shall register the vehicle in this state. The owner or person in charge shall apply to the department or to its authorized agent for registration of each such vehicle on a form prescribed by the department. A registration is not required for any motor vehicle that is not operated on the roads of this state during the registration period.
§ 320.02, Fla. Stat. (2010) (emphasis added).
(19)(a) “Registration period” means a period of 12 months or 24 months during which a motor vehicle or mobile home registration is valid.
§ 320.01(19)(a), Fla. Stat. (2010).1
A motor vehicle is required to have insurance (the “required security” referred to in section 627.733) if it is required to be registered and licensed2. A fair reading3 of the statute is that a motor vehicle is required to be registered if it is operated on the roads of this state at all — even once — during the registration period. The language of the statute doesn’t say how many times — or for how long — the motor vehicle must be operated on the roads in order to trigger the registration requirement. But what the statute does say, however, is that registration is not required if the vehicle is not operated on the roads during the registration period. In other words, if the vehicle is operated at all — even once — during the registration period, then the owner must register it; if the vehicle isn’t operated on the roads during the registration period, then it need not be registered.
In this case, State Farm’s summary judgment evidence failed to establish that Mr. Hernandez owned a motor vehicle that was required to be registered during the registration period. First, State Farm failed to show what the registration period was at the relevant time in 2010. It presented no summary judgment evidence as to when the applicable 12 or 24-month period began and ended.4
Second, Mr. Hernandez’s 2006 application for certificate of title falls well short of establishing anything regarding the operation of the motor vehicle in 2010, or during the applicable “registration period.” The fact that in 2006, Mr. Hernandez failed to check a box that says “THE VEHICLE IDENTIFIED WILL NOT BE OPERATED ON THE STREETS AND HIGHWAYS OF THIS STATE,” does not prove much of anything regarding whether the vehicle was in fact operated on the roads of this state in 2008, 2009, or 2010, It certainly doesn’t show at all that Mr. Hernandez actually operated the vehicle on the roads of the state during any possible applicable registration period for the year 2010.
Third, the deposition testimony of State Farm’s claim representative, Carri Vecchio, is not material as “would be admissible in evidence,” as required by the summary judgment rule, Fla.R.Civ.P. 1.510(c). Her deposition testimony is that State Farm’s log notes reflect that someone named “Carla” at the law offices of Robert Rubenstein “advised State Farm that he owned a vehicle, that he was driving at the time of the loss, but he did not have it insured.” One need only read the preceding sentence quickly to realize that this testimony is based on several layers of inadmissible hearsay.5
As reflected in the transcript of its oral ruling at the summary judgment hearing, the trial court erred when it ruled that all State Farm had to do was prove ownership in another vehicle; and then it was South Miami Health Center’s burden to present evidence that the vehicle was inoperable. The plain language of the above statutes demonstrates that the “operability” of the vehicle on any particular day isn’t what’s relevant. To prove the exclusion applies, State Farm was required to present admissible evidence that Mr. Hernandez owned a motor vehicle that was required to be registered and licensed during the applicable registration or licensing period. In turn, to prove that his vehicle was “required to be registered,” State Farm had to prove that he operated the vehicle on the roads of this state during the registration period.
Because State Farm failed to “show” or “prove” by way of summary judgment evidence that Mr. Hernandez owned and operated a motor vehicle during the relevant registration period, we reverse the summary judgment entered and remand for further proceedings consistent with this opinion.6
The Summary Judgment is hereby REVERSED. (LISA WALSH AND DARYL TRAWICK., CONCUR.)
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1Registration periods are established and specified in section 320.055, and are often linked to the birth month of the owner of the vehicle. For example: “For a motor vehicle subject to registration under s. 320.08(1), (2), (3), (5)(b), (c), (d), or (f), (6)(a), (7), (8), (9), or (10) and owned by a natural person, the registration period begins the first day of the birth month of the owner and ends the last day of the month immediately preceding the owner’s birth month in the succeeding year.” § 320.055(1)(a), Fla. Stat. (2010).
2We do not address the licensing requirement as the parties have not argued it, and the statutory language regarding licensing does not address the “operated on the roads” requirement, which was the focus in the proceedings below. “(1) Every vehicle, at all times while driven, stopped, or parked upon any highways, roads, or streets of this state, shall be licensed in the name of the owner thereof in accordance with the laws of this state unless such vehicle is not required by the laws of this state to be licensed in this state . . . . § 316.605, Fla. Stat. (2010).
3See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012), for more on the “fair reading” method for reading statutes.
4This failure is fatal to State Farm’s argument, for example, that it could rely on Mr. Hernandez’s affidavit that his vehicle had been inoperable for “over 6 months” at the time of the accident. Without knowing when on the calendar the applicable registration period begins and ends, establishing that Mr. Hernandez’s vehicle was possibly operable over six months before the accident, does not aid in the inquiry as to whether he was required to maintain security throughout the “registration period.”
5At oral argument, State Farm relied on Ms. Vecchio’s April 9, 2013 affidavit which suffers from the same infirmity. On its face she swears that she made the affidavit based on her “personal knowledge of the file” pertaining to this case. Absent a statutory exception to hearsay at each level, Ms. Vecchio’s testimony by affidavit as to the contents of documents and other tangible information in State Farm’s file is not admissible evidence to support a summary judgment.
6Because we reverse the summary judgment entered, we need not reach the remaining issues raised by South Miami Health Center, including the issues related to Pedro Hernandez’s affidavits; which South Miami Health itself acknowledged at page 15 of its reply brief are rendered moot.
