4 Fla. L. Weekly Supp. 869a
Insurance — Personal injury protection — Deductible — Dependent relatives residing in insured’s household — Where minor and her family shared living space with insureds, who were relatives of minor’s mother, for short period after arriving from Cuba, depended upon insureds for sustenance for only two days before receiving charitable and governmental assistance, and contributed to household expenses until such time as they became able to support themselves and move out, minor was not financially dependent upon insured at time of accident and was not liable for payment of PIP deductible which would apply to dependent relative living in insured’s household
YEILYN GARCIA, a minor, by and through her mother and next friend, ISABEL BETANCOURT, Plaintiff, v. U.S. SECURITY INSURANCE COMPANY, INC., a foreign insurer, Defendant. County Court, 11th Judicial Circuit in and for Dade County, Civil Division. Case No. 94-4395 CC-21. April 1, 1997. Cecilia M. Altonaga, Judge. Counsel: David Lister and Bernard Butts, for Plaintiff. Michael Nuzzo, for Defendant.
FINAL JUDGMENT FOR PLAINTIFF
THIS CAUSE came before the Court for a non-jury trial on March 11, 1997. After considering the testimony and evidence presented, applicable authorities and the court file, the Court makes the following factual findings and legal conclusions and enters judgment accordingly.
PROCEDURAL BACKGROUND
On November 16, 1994, Plaintiff, Yeilyn Garcia, a minor, by and through her mother, Isabel Betancourt (hereinafter referred to as “Garcia”) filed this lawsuit against U.S. Security Insurance Company, Inc. (hereinafter referred to as “U.S. Security”), seeking payment for medical and hospital expenses incurred by Garcia as the result of an automobile accident. Garcia was injured while riding as a passenger in an automobile insured by U.S. Security. Among the defenses raised by U.S. Security in its Answer was that Plaintiff’s potential recovery of damages had to be reduced by a $2,000 personal injury protection deductible, because Garcia was an economically dependent person upon the named insured. In June of 1995, Garcia filed a Motion for Summary Judgment in which she maintained that she was not financially dependent on the insured, and that the deductible did not apply to reduce her recovery of damages. By that point, the Defendant had paid all of the claimed medical expenses, less $2,000. The Motion was denied. On the eve of jury trial, the parties stipulated that the case should be tried to the Court, and thus, a bench trial was held on March 11, 1997.
FINDINGS OF FACT
In February of 1994, Roberto Codner renewed his automobile insurance protection from U.S. Security. The policy provides automobile insurance protection for two vehicles, including bodily injury, property damage, insured motorist, and personal injury protection. The policy provides a 2,000 deductible for personal injury protection. The only other name appearing on the policy is that of Mr. Codner’s wife, Elva Codner.
The Policy of Insurance, on Page 8 of 13, provides in pertinent part that “The amount of any deductible stated in the schedule or declarations shall be deduted [sic] from the total amount of all sums otherwise payable by the Company with respect to all loss and expense incurred by or on behalf of each person to whom the deductible applies and who sustains bodily injury as the result of any one accident ….” Because the application for insurance is not in evidence, it is not known what information Mr. Codner gave U.S. Security that would have had a bearing on the deductible or the premium charged.
On April 20, 1994, Silvio Garcia and his wife, Isabel Betancourt (hereinafter “the Garcias”), arrived from Cuba at the Miami International Airport, with intentions of proceeding to New Mexico to reside there permanently. With them were their two minor daughters, Yeilyn and Yelinda Garcia. Elva Codner is Mr. Garcia’s cousin, and the Codners met the Garcias at the Airport, and offered to have the Garcias stay with them in their home in Miami. The Codners resided with their three grown children. The Garcias arrived in the United States with only the clothes they were wearing and with no other personal belongings, funds, or sources of assistance. They accepted the Codners’ offer and moved into the Codner home upon their arrival.
While at the Codners’ home, on April 25, 1994, the Garcias received a check for $800.00 from Catholic Community Services, Inc., Refugee Resettlement Program. The Garcias used this money to buy clothing and food. On May 29, 1994, the State of Florida issued the Garcias a check for $629.00.
Isabel Betancourt, Silvio Garcia, and Roberto Codner testified that during the time the Garcias stayed with the Codners, the Garcias contributed to household expenses by their purchase and sharing of meals obtained with food stamps. Moreover, of the $629.00 given to the Garcias from the State, $300.00 was given to the Codners to cover for rent and other expenses, such as utilities. The Codners, in turn, shared meals purchased by both families with the Garcias, and provided transportation, some used clothing, and moral support to the Garcias. Mr. Garcia mowed the Codner’s yard several times during his stay at the Codner home.
On or about June 10, 1994, Mr. Garcia obtained employment at Balado Tire. On June 17, 1994, Mr. Garcia received his first weekly paycheck of $220.00 from Balado. The Garcias were able to save, during their stay with the Codner family, the sum of approximately $1,500.00, which they used to purchase a vehicle and to rent an apartment. Mr. Codner testified that the parties’ understanding was that once the Garcias could fully support themselves, they would move out. That is precisely what occurred on August 7, 1997, the date the Garcias moved out of the Codner residence.
The Codners’ Income Tax Return for the year 1994 shows that the Codners claimed no dependents, not even their grown children who resided with them. The Income Tax Return for the Garcia family lists Yeilyn and Yelinda as dependents. All witnesses at trial maintain that at no time did the Codners provide direct financial assistance to the Garcias. The only time the Garcias depended on the Codners for sustenance was during their first two days in this country, before receiving the aforementioned charitable and government assistance.
Prior to moving out of the Codner home, on June 8, 1994, but at about the time that the Garcias contributed the sum of $300.00 toward rent, the Plaintiff, Yeilyn Garcia, was injured in an automobile accident while riding as a passenger in the Codner vehicle. She sought payment of her medical and hospital bills from Mr. Codner’s insurer, Defendant, U.S. Security. All of the bills which form the subject of this suit were paid for during the pendency of this suit, with the exception of the $2,000 deductible contained in the U.S. Security insurance policy issued to Mr. and Mrs. Codner.
CONCLUSIONS OF LAW
The sole issue for determination, which the parties have stipulated should be resolved by the Court, is whether the Plaintiff, Yeilyn Garcia, was financially dependent upon the insured, Roberto Codner, on the date of her accident. If the answer is in the affirmative, the parties agree the deductible applies and bars her recovery for the amount remaining. If the answer is in the negative, Garcia is entitled to an additional $2,000.
The operative statutes are contained in Chapter 627, Florida Statutes, the “Florida Motor Vehicle No Fault Law”. Subsection 627.732(4), Fla. Stat., defines “ `Relative residing in the same household’ ” as a “relative of any degree by blood or by marriage who usually makes his home in the same family unit, whether or not temporarily living elsewhere.” (emphasis added). Section 627.739, entitled “Personal injury protection; optional limitations; deductibles — ”, provides in pertinent part as follows: “(1) The named insured may elect a deductible to apply to the named insured and dependent relatives residing in the same household, but may not elect a deductible to apply to any other person covered under the policy.” (emphasis added).
In the present case, Garcia was related by marriage to the named insured, Roberto Codner, as she was the second cousin of Mr. Codner’s wife. The unexpected and brief stay of Garcia in the Codner home, however, does not seem to meet the statutory threshold of a “relative . . . who usually makes his home in the same family unit,” and therefore takes her outside the definition of “Relative residing in the same household”, as that term is defined in Subsection 627.732(4), Fla. Stat. Thus, without further analysis, it would appear that the deductible would not apply to bar further recovery for Garcia.
Nonetheless, and in an effort to exhaustively address the issue presented, it is advisable to analyze the applicability of the above-quoted portion of Section 627.739 to the present case. The Third District Court of Appeal, in Lumbermens Mutual Casualty Company v. Acosta, 452 So. 2d 1060 (Fla. 3d DCA 1984), construed this very statute under a factually analogous situation. In Lumbermens Mutual, 452 So. 2d 1060, 1061, the Court began its analysis by affirming the standard Oxford English Dictionary definition for “dependent” which is someone “ `[t]hat depends or has to rely on something else for support, supply, or what is needed.’ ” (citation omitted). In Lumbermens Mutual, 452 So. 2d at 1061, the named insured had obtained a personal injury protection policy and selected an $8,000 deductible for each named insured and each dependent relative. The plaintiffs in Lumbermens Mutual were the insured’s son and daughter-in-law, who resided in the insured’s home, but who were employed and filed income tax returns for 1980 and 1981. Id. The insured did not claim either as dependents in his federal income tax returns, and neither depended on the insured for financial support. Id. In August of 1981, while the son was driving the insured’s automobile, he and his wife were injured in a traffic accident. Id. Lumbermens applied the deductible to the two to bar recovery of the amount of the deductible. Id.
In rejecting Lumbermens’ position, the court observed that Florida’s no-fault insurance system requires owners to carry personal injury protection and allows them to elect a deductible for themselves and their dependent relatives, but not for others. Id. at 1062. In rejecting Lumbermens’ contention that “dependent relatives” should be construed to mean “dependent for insurance coverage” rather than “financially dependent”, the court relied on the plain wording of the statute, and a review of the evolution of the statutory language, which was amended in 1977 to modify “relative” with the adjective “dependent.” As applied to the facts in Lumbermens Mutual, because the son and daughter-in-law were not financially dependent on the father, they were not “dependent relatives” of the insured father, and the deductible did not limit their recovery of PIP benefits.
In addition to the guidance offered in Lumbermens Mutual, the Internal Revenue Code provides a useful definition of “dependent” as meaning specified family members “over half of whose support, for the calendar year in which the taxable year of the taxpayer begins, was received from the taxpayer.” 26 U.S.C. Section 152(a). At least one other court has defined “dependency” as “monetary or otherwise generally accepted familial dependence for care and sustenance.” See Girrens v. Farm Bureau Mutual Insurance Company, 715 P.2d 389, 393 (Kan. 1986).
In the present case, the Plaintiff stayed at the home of the insured for approximately four months. On the date of the accident, she had been there less than two months. Given the circumstances of her arrival in the United States, and the fact that the Garcias and the Codners had never even met prior to the Garcias moving in with the Codners, it is apparent that the Plaintiff did not usually make her home with the insured. See Section 627.732(4), Fla. Stat. The named insured, Roberto Codner, elected a $2,000 deductible prior to the arrival of the Plaintiff in the United States, and certainly before Codner could even know that the Plaintiff would come and briefly stay in his home in the spring and summer of 1994. This finding the Court makes without the benefit of the application of insurance, but comfortably given the date of the renewal of the policy and the evidence that neither family anticipated or planned the brief stay.
Garcia was certainly dependent on the named insured for the first several days of her stay in his home. However, given the $800 received shortly after her arrival, and the State of Florida assistance received, Garcia was certainly not completely financially dependent on Codner for her support and sustenance. The evidence shows that on or about the date of the accident, Garcia had contributed to the household with food, and $300 given to help defray living expenses the Codners could be incurring by the presence of the Garcias.
Neither Lumbermens Mutual nor Section 627.739, Fla. Stat. offers assistance as to the correct application of “dependent relatives” where a relative may have a limited dependency on the named insured, as Garcia had on the Codners. Nonetheless, the instant case is similar to the factual scenario in Lumbermens, in that in each case the plaintiff occupied some space in the home of the insured, and shared in the consumption of food and utilities. Such sharing of resources did not amount to a finding of dependency in Lumbermens. The Court is not persuaded that the legislature meant to apply the deductible to a relative sharing, for a short period of time, living space and receiving gratuitous assistance and moral support from the insured, without more. Certainly, if the Garcias had had no independent source of income, they would have been dependent on the Codners and perhaps the deductible would apply. This, however, is not the case. If the Garcias were dependent upon anyone, it was the State of Florida, which provided food stamps and support.
CONCLUSION
Based upon the foregoing analysis, the Court finds that Yeilyn Garcia was not, at the time of the accident, a “dependent relative residing in the same household” as the insured named in the U.S. Security Insurance Company, Inc. policy of insurance. She is therefore entitled to recover the $2,000 withheld.
Accordingly, it is
ORDERED AND ADJUDGED that Plaintiff, Yeilyn Garcia, a minor, by and through her mother, Isabel Betancourt, shall and does recover from the Defendant, U.S. Security Insurance Company, Inc., the sum of $2,000, which sum shall bear interest at the legal rate and for which sum let execution issue. The Court reserves jurisdiction to entertain a motion for fees and costs, and for all other matters necessary to effectuate the foregoing.
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