28 Fla. L. Weekly Supp. 350a

Online Reference: FLWSUPP 2804COLOInsurance — Personal injury protection — Coverage — Additional driver — Nonresident relative who is named additional driver in parents’ PIP policy and who was injured while driving modified golf cart/low speed vehicle owned by his employer while fulfilling his employment functions is not entitled to coverage under parents’ policy — While policy does not expressly define term “additional driver,” it is clear from policy read in total that term refers to those that live in same residence as named insured and/or drive insured vehicle — Claimant’s employer is required to maintain policy providing PIP coverage to persons injured while occupying golf cart

MELI ORTHOPEDIC CENTERS OF EXCELLENCE, LLC., a/a/o John Colonel, Plaintiff v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE18015180. Division 54. May 11, 2020. Florence Barner, Judge. Counsel: Ryan M. Sanders, for Plaintiff. Christopher E. Marshall, Law Office of George L. Cimballa, III, Fort Lauderdale, for Defendant.

FINAL SUMMARY JUDGMENTORDER ON PLAINTIFF AND DEFENDANT’SCROSS MOTIONS FOR SUMMARY JUDGMENT

THIS MATTER, having come before the Court for hearing on May 4, 2020, on Plaintiff’s Motion for Summary Judgment and Defendant’s Cross Motion for Summary Judgment, and the Court having reviewed the Court file, and having heard argument of counsel for both parties at a coordinated video conference hearing conducted by agreement of both parties, and being otherwise fully advised in the premises, the Court finds as follows:

FACTS AND STIPULATIONS

First, per stipulation of the parties through their joint pre-trial stipulation and by argument heard, the named insureds are John Colonel’s parents. On May 21, 2017, John Colonel was injured in a motor vehicle accident while driving a modified golf cart, owned by his employer. The modified golf cart met the standard as a low speed vehicle under Florida Statute §320.01(41) and it was permitted to be operated on the streets under Florida Statute §316.2122. John Colonel is listed on his parents’ policy of insurance as an “additional driver”. However, John Colonel does not reside with his parents and was not a resident relative of the named insureds (his parents) at the time of this accident. Additionally, the parties stipulate, the only issue of law to be determined is whether John Colonel, as an additional driver on the subject policy, is entitled to PIP coverage while injured occupying employer’s low speed vehicle not listed on the subject policy or insured by Defendant Geico. Therefore, the question before the Court is whether GEICO’s failure to define the terms “driver” and/or “additional driver” render its usage in the policy ambiguous, such that the assignor, Plaintiff, would receive coverage under the subject GEICO policy for an accident which occurred while the assignor was operating a low speed motor vehicle.

THE LANGUAGE OF THE INSTANT PIP POLICY

The PIP portion of the insurance policy issued by Defendant limits the coverage an additional insured may receive through the following definitions, benefit payment rights, and exclusions (Emphasis added):

You and your means the named insured shown in the declarations or his or her spouse if a resident of the same household. See Section I (Liability), A-30FL (03-11) Page 3 of 19, incorporated in Section 11 (PIP), A-30FL (03-11) Page 6 of 19;

Relative means a person related to you by blood, marriage or adoption (including a ward or foster child) who is a resident of the same household as you. See Section I (Liability), A30FL (03-11) Page 3 of 19, incorporated in Section Il (PIP), A-30FL (03-11) Page 6 of 19;

Insured motor vehicle means a motor vehicle:

a. Of which you are the owner, and

b. With respect to which security is required to be maintained under the Florida Motor Vehicle No-Fault Law, and

c.

For which a premium is charged, or which a trailer, other than a mobile home, designed for use with a motor vehicle. See Section 11 (PIP), A-30FL (03-11) Page 6 of 19;

Motor vehicle means 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 and any trailer or semitrailer designed for use with such vehicle.

A motor vehicle does not include:

a. Any motor vehicle which is used in mass transit other than public school transportation and designed to transport more than five passengers exclusive of the operator of the motor vehicle and which is owned by a municipality, a transit authority, or a political subdivision of the state; or

b. A mobile home. See Section Il (PIP), A-30FL (03-11) Page 7 of 19;

PAYMENTS WE WILL MAKE

The Company will pay in accordance with the Florida Motor Vehicle No Fault Law (as enacted, amended, or newly enacted), and where applicable in accordance with all fee schedules contained in the Florida Motor Vehicle No Fault Law, to or for the benefit of the injured person:

a. 80% of medical expenses which are medically necessary, pursuant to the following schedule of maximum charges contained in the Florida Statute 627.736(5) (a) 2:

I. For emergency transport and treatment by providers licensed under Florida Statutes, Title 29, Chapter 401, 200 percent of Medicare.

a. For emergency services and care provided by a hospital licensed under Florida Statutes, Title 29, chapter 395, 75 percent of the hospital’s usual and customary charges. For emergency services and care as defined by Florida Statutes Title 29, chapter 395.002(9) provided in a facility licensed under chapter 395 rendered by a physician or dentist, and related hospital inpatient services rendered by a physician or dentist, the usual and customary charges in the community. For hospital inpatient services, other than emergency services and care, 200 percent of the Medicare Part A prospective payment applicable to the specific hospital providing the inpatient services. For hospital outpatient services, other than emergency services and care, 200 percent of the Medicare Part A Ambulatory Payment Classification for the specific hospital providing the outpatient services.For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B. However, if such services, supplies, or care is not reimbursable under Medicare Part B, we may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under Florida Statutes Title 31, chapter 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation is not required to be reimbursed by us.

b. 60% of work loss; and

c. Replacement services expenses; and

d. Death benefits.

The above 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:

1. You or any relative while occupying a motor vehicle or, while a pedestrian through being struck by a motor vehicle; or

2. Any other person while occupying the insured motor vehicle or, while a pedestrian, through being struck by the insured motor vehicle.

EXCLUSIONS

Section II – Part I does not apply:

I. To you or any relative injured while occupying any motor vehicle owned by you and which is not an insured motor vehicle under this insurance;

2.

To any person while operating the insured motor vehicle without your express or implied consent;

3. To any person, if such person’s conduct contributed to his bodily injury under any of the following circumstances:

i. Causing bodily injury to himself intentionally; ii. While committing a felony;

4. To you or any dependent relative for work loss if an entry in the schedule or declarations indicates such coverage does not apply;

5. To any pedestrian, other than you or any relative, not a legal resident of the State of Florida;

6. To any person, other than you, if such person is the owner of a motor vehicle with respect to which security is required under the Florida Motor Vehicle No-Fault law, as amended;

7. To any person, other than you or any relative, who is entitled to personal injury protection benefits from the owner or owners of a motor vehicle which is not an insured motor vehicle under this insurance or from the owner’s Insurer; or

8. To any person who sustains bodily injury while occupying a motor vehicle located for use as a residence or premises

See Section 11 (PIP), A-30FL (03-11) Pages 7-8 of 19.

SUMMARY OF THE ARGUMENTS

First, Plaintiff notes that under Florida Statute §320.02(1), “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”¹ and “proof that personal injury protection benefits have been purchased if required under s. 627.733. . .”². Thus, low-speed vehicles must be registered and insured under a policy of insurance providing personal injury protection benefits if the vehicle is to be operated or driven on the roads of the state. Therefore, as to the modified golf cart, the Court must find that pursuant to Florida Statute §316.2122(3), “[a] low-speed vehicle or mini truck must be insured in accordance with s. 320.02 and titled pursuant to chapter 319” (2015).

Next, Plaintiff argues that Defendant’s failure to define the term “additional driver” or “driver” renders its usage ambiguous.³ Plaintiff further argues that John Colonel should receive PIP benefits because he is listed on the Declarations Page of the subject policy as an “additional driver” and since Defendant did not define the term “driver” in its policy, there is ambiguity that must be construed in favor of the insured and coverage afforded.⁴

Additionally, Plaintiff argues that the present factual scenario is analogous to Huff v. State Farm Mut Auto Ins. Co., wherein the Honorable Judge Andrew L. Cameron found that, “State Farm has failed to define the term “driver” in its policy. The fact that the policy fails to define the term “driver” would make the term ambiguous. This would reasonably lead a person to believe that he or she was covered as a listed driver under the insurance policy.”⁵ Defendant counters this argument by reasoning that all of the cases relied upon by Plaintiff only discuss the ambiguity of the term “driver” in liability cases where material misrepresentations were alleged in the applications for insurance. Defendant reasons that the Courts found the term “driver” was used to describe different sets of persons to be included in the application, therefore coverage for liability was found. Huff is the only case where the term driver was added into the area of entitlement to PIP. Plaintiff argues the Huff facts are very different from the instant case. In Huff, the claimant was a “named driver” on his ex-wife’s policy of insurance and was injured while driving the vehicle in his possession, based upon a marital settlement agreement and which remained insured under the ex-wife’s policy, but titled only in the ex-wife’s name. The insurer denied the claim for PIP benefits because the claimant did not live with the policyholder to qualify as a resident and as a beneficial owner of the vehicle, the claimant was required to have his own PIP policy. The Court concluded that as claimant was already a named driver on the policy and due to the lack of definitions for the term “driver” and “named driver” ambiguity could be found to provide coverage to the claimant.

In the instant case, Defendant argues that its policy’s lack of definition for the term “driver” does not render the policy ambiguous,⁶ and it should be construed in accordance with its plain language,⁷ and the policy’s clear language addresses the entitlement to PIP benefits.⁸ Defendant also notes that the policy definitions used by the Vreeman court mirrors the language in its own policy. Defendant reasons that, in dicta, Hollywood Injury considers the potential for allocating a duplication in coverage, however, each of its supporting cases hold that PIP benefits are limited to the policy holder, a resident relative of the policy holder, one injured while occupying the insured vehicle, or a non-occupant injured by the insured vehicle. Thus, entitlement is clearly listed in its policy when referencing the payment limitations for PIP benefits.⁹

SUBSTANTIVE ANALYSIS

In this matter of first impression, the legal issue before this Honorable Court is whether a named additional driver on the policy would be covered for Personal Injury Protection (“PIP”) benefits if the additional driver is injured while occupying a low speed vehicle golf cart owned by an employer while fulfilling his employment functions. Florida law is clear that “an insurer that issues a personal injury protection policy is required to provide coverage for its named insured, relatives residing in the same household, drivers and passengers of the insured of the insured motor vehicle, and those non-occupants who are struck by the vehicle. [. . .] the insurer of an automobile in which a passenger is riding is required to provide the passenger with coverage unless he or she is the owner of a motor vehicle with respect to which security is required under.”¹⁰

Further, Florida Statute §320.02(1), is clear that “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”¹¹ and “proof that personal injury protection benefits have been purchased if required under s. 627.733. . .”¹². Thus, low-speed vehicles must be registered and insured under a policy of insurance providing personal injury protection benefits if the vehicle is to be operated or driven on the roads of the state. Therefore, as to the modified golf cart, the Court finds that pursuant to Florida Statute §316.2122(3), “[a] low-speed vehicle or mini truck must be insured in accordance with s. 320.02 and titled pursuant to chapter 319.”

The subject policy states that “[t]he Company will pay, in accordance with the Florida Motor Vehicle No Fault Law. . . for [specified damages] caused by accident arising out of the ownership, maintenance or use of a motor vehicle and sustained by . . . you or a relative while occupying a motor vehicle . . . or . . . any other person while occupying the insured motor vehicle . . . .”. id. The PIP portion of Defendant’s insurance policy provides the following definitions: “You” is defined as “the Policyholder named on the Declarations Page and spouse, if living in the same household.” “Insured motor vehicle” is defined as “a motor vehicle of which you are the owner and with respect to which security is required to be maintained under the Florida Motor Vehicle No Fault Law, and for which a premium is charged.” “Named insured” is defined as “the person or persons named on the Declarations Page of the policy and, if an individual, shall include the spouse if a resident of the same household.” This Court finds that while the terms “driver” and “additional driver” are not expressly defined in Defendant’s policy however, their plain meaning is clear as is written in the policy when read in total. Here, it is clear that additional drivers are those that live in the same residence as the named insured and/or drive the vehicle on the policy, but who do not receive the same coverage as the named insured. An additional driver is only covered when driving the vehicle listed in the policy. Just as the Fist District Court of Appeals reasoned in Vreeman supra Defendant:

“must provide PIP coverage to the [additional drivers] only if they come within the terms of the policy. The policy obligates [insurer] to provide PIP coverage in either of two situations. In the first situation, PIP coverage is provided to the “named insured” or a relative of a “named insured” when these individuals are occupying any motor vehicle. The [additional drivers] are not named insureds nor relatives of a named insured on the policy . . . issued to Vreeman. Since the [additional drivers] are not named insureds, they are not entitled to coverage merely because they suffered damages while “occupying a motor vehicle.” Consequently, [the insurer] incurs no obligation to provide PIP benefits to the [additional drivers] under the first provision. In the second situation, the policy provides PIP coverage to any person who occupies “the insured motor vehicle.” Under the policy, only a vehicle owned by “you,” meaning Vreeman, for which a premium was collected, could qualify as an “insured motor vehicle.” Since Enterprise owned the vehicle the [additional drivers] were driving, and the rental car was not listed on the policy [the insurer] issued to Vreeman, the rental car could not qualify as an “insured motor vehicle” as that term is defined by [the insurer’s] policy. Thus, [the insurer] incurs no obligation to provide PIP coverage to the [additional drivers] under the second provision.

In the instant case, GEICO’s policy limits PIP benefits to only the named insured, policyholder, resident relative, a person injured while occupying the insured vehicle, or a non-occupant injured by the insured vehicle. Here, Mr. Colonel was neither the named insured, policyholder, resident relative, injured while occupying the insured vehicle, or a non-occupant injured by the insured vehicle.

CONCLUSION

Therefore, Defendant GEICO does not have an obligation to provide PIP coverage. Mr. Colonel is an additional driver, which only provides PIP coverage while occupying the insured vehicle. As the owner of a modified golf cart, under Florida Statute §320.02, Mr. Colonel’s employer is required to maintain a policy of insurance providing PIP to persons, like Mr. Colonel, who are injured while occupying the modified vehicle. Therefore, the Plaintiff’s Motion for Summary Judgment is DENIED and shall go henceforth without day and Defendant’s Motion for Summary Judgment is GRANTED.

__________________

¹See, Florida Statute §320.02(1), 2015.

²See, Florida Statute §320.02(5)(a), 2015.

³See Great Oaks Casualty Ins. Co. v. State Farm Mut. Auto Ins. Co. (Fla. 4th DCA 1988) (“While we consider this to be a close case on liability, the existing weight of authority supports the trial judge’s holding that the application involved here vis-a-vis the term “Drivers,” without further explanatory language, is ambiguous making it difficult for the average person to understand the broad meaning of the term.”). See also, Redland Ins. Co. v. CEM Site Constructors, Inc., 86 So. 3d 1259 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D1115a].

⁴See Lenhart v. Federated National Insurance Company, 950 So. 2d 454, 457 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D460b].

⁵Huff v. State Farm Fire & Casualty Company, 2011-CC-12284-O (Orange Cty. Ct. Jun. 27, 2014) [22 Fla. L. Weekly Supp. 117b].

⁶ Koikos v. Travelers Insurance Company, 849 So. 2d 263 (Fla. 2003) [28 Fla. L. Weekly S194a].

⁷ Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So. 2d 161, 165 (Fla. 2003) [28 Fla. L. Weekly S307d]; Auto-Owners Ins. Co. v. Anderson,756 So. 2d 29, 34 (Fla. 2000) [25 Fla. L. Weekly S211a]; and Thomas v. Prudential Prop. & Cas., 673 So. 2d 141 (Fla. 5th DCA 1996) [21 Fla. L. Weekly D1132a]

⁸See Direct General Insurance Company v. Vreeman, 943 So. 2d 914 (Fla. 1st DCA 2006) [31 Fla. L. Weekly D3017c]; Pearson v. State Farm Mutual Automobile Insurance Company, 560 So. 2d 416 (Fla. 2nd DCA 1990); Hollywood Injury Rehabilitation Center, Inc., (a/a/o Chelsey Colliflower) v. Allstate Indemnity Company and GEICO Indemnity Company, 2015-002620 CONO 71 (Broward Cty. Ct., Feb. 15, 2018) [26 Fla. L. Weekly Supp. 914a]; and Prevez-Falcom v. Enterprise Leasing Company, 2014 Fla. Cir. LEXIS 1080 (4th Cir. Ct., Duval Cty., May 12, 2014) [22 Fla. L. Weekly Supp. 103b].

⁹See Section II (PIP), A-30FL (03-11) Pages 7 of 19.

¹⁰Pearson, 560 So. 2d 416 (Fla. 2nd DCA 1990).

¹¹See, Florida Statute §320.02(1), 2015.

¹²See, Florida Statute §320.02(5)(a), 2015.