7 Fla. L. Weekly Supp. 251a
Insurance — Personal injury protection — Action against insurer by plaintiff who was injured while riding as passenger on Yamaha Elite 125 scooter which was struck by automobile owned and operated by insured, a non-resident — Error to find in favor of plaintiff — In absence of proof that non-resident was physically present within state for more than 90 days during preceding 365 days, non-resident not required to have PIP coverage, and PIP claim would not be valid — Yamaha Elite 125 scooter is self-propelled vehicle within meaning of PIP statute
ATLANTIC EMPLOYERS INSURANCE, COMPANY, a foreign corporation, Appellant, vs. OMAYRA OLIVO, Appellee. 11th Judicial Circuit in and for Miami-Dade County, Appellate Division. Case No. 98-72. Lower Case No. 98-SP-863. Revised Opinion filed January 12, 2000. An Appeal from a final order of the County Court in and for Miami-Dade County. Nancy J. Pollock, Judge. Counsel: Paul Field, for Appellant. Robert Romagna, for Appellee.
[Original Opinion at 7 Fla. L. Weekly Supp. 163a]
(Before LEONARD E. GLICK, MARC SCHUMACHER and GILL S. FREEMAN, JJ.)
(GLICK, J.) This is an appeal from a final judgment, entered by the lower court, in favor of the Appellee, Omayra Olivo, the Plaintiff below. The issues on appeal are:
(1 ) Whether the lower court erred in finding that the Appellant’s insured, a non-resident of the State of Florida, was subject to the provisions of § 627.736, Fla. Stat. (1998), “PIP” coverage.
(2) Whether the lower court erred in determining that the “scooter” driven by the Appellee, was not a “self propelled” vehicle thereby making PIP benefits available.
Omayra Olivo, the Appellee, was a passenger on a Yamaha Elite 125 scooter and was injured in a traffic accident. The scooter was struck by an automobile, owned and operated by an insured of Atlantic Employers Insurance Company, the Appellant.
Appellant contended that Section 627.733(2) of the Florida Statutes requires PIP insurance only when non-residents, of the State of Florida, are present “physically” within the State for more than 90 days during the preceding 365 days. There was no evidence presented during the trial that proved this specific requirement of the law. As a result of this lack of proof it appears that the Appellant’s insured would not be required to have PIP coverage and a PIP claim would not be valid.
The second issue presented by the appeal is whether the Yamaha Elite 125 Scooter, on which the Appellee was a passenger was a “self propelled vehicle.” Section 627.736 (1) provides that every insurance policy complying with this Chapter shall provide personal injury protection to… “other persons struck by such motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle.” Appellee, Olivo maintains that the Yamaha Elite 125 scooter was not a self-propelled vehicle but was a moped, which is not a motor vehicle under Florida law.
Based upon the evidence presented at the trial and the case law reviewed by this court it is clear that the Yamaha Elite 125 is neither a bicycle or a moped, but is, in fact, a self-propelled vehicle. Since the Appellee was a passenger on a self-propelled vehicle, within the meaning of the PIP statute, she is precluded from PIP benefits from the Appellant, Atlantic Employers Insurance Co.
The Final Judgment is REVERSED and the case is REMANDED to the Lower Court for proceedings consistent with this opinion. Accordingly, the Appellee’s Motion for Attorney’s Fees is DENIED. (SCHUMACHER and FREEMAN, JJ. concur.)
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