9 Fla. L. Weekly Supp. 137c
Insurance — Personal injury protection — Coverage — Exclusions — Plaintiff injured as passenger in insured vehicle who was employee in the course and scope of his employment at time of accident — Plaintiff’s request for procedural entitlement to summary judgment based on insurer’s failure to assert any affirmative defense by failing to amend its answer or file a cross-motion for summary judgment denied where court grants insurer’s ore tenus motion to amend pleadings to conform with evidence presented — Policy exclusion providing that PIP insurance does not apply to bodily injury to insured’s employee arising out of and in course of employment must give way to mandatory requirements of section 627.736(4)(f) and is invalid — Motion for summary judgment granted
CHARLES COLBERT, Plaintiff, vs. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. CC0-01-1550 DIV 73. October 26, 2001. Wilfredo Martinez, Judge. Counsel: Jeffrey M. Byrd, Jeffrey M. Byrd, P.A., Orlando. Julia Pinnell, Longwood.
ORDER ON PLAINTIFF’S MOTION FORSUMMARY JUDGMENT
This cause came to be heard before the Court on Plaintiff’s Motion for Summary Judgment on October 1, 2001 at 4:00 p.m., and the Court having considered the evidence and arguments presented, it is hereby
ORDERED AND ADJUDGED that Plaintiff’s Motion is GRANTED based upon the following rulings and conclusions:
1. The parties have stipulated and agreed that the Plaintiff incurred reasonable and necessary bills for healthcare services following a motor vehicle accident of October 9, 2000, in which the Plaintiff was injured as a passenger in a vehicle insured by Nationwide.
2. The parties stipulate and agree that the Plaintiff was “an insured” under the policy issued by Nationwide Insurance by operation of Florida’s No-Fault Statute.
3. The parties also stipulate and agree that for purposes of such hearing the Plaintiff was an “employee” and that he was in the course and scope of his employment at the time of the motor vehicle accident.
4. The parties agree and stipulate that the Plaintiff would otherwise be entitled to medical payments coverage but for an exclusion to coverage appearing in an endorsement to the applicable policy which exclusion provides that this insurance does not apply to any of the following: for “bodily injury” to your “employee” arising out of and in the course of employment by you.
5. The parties further stipulate and agree that there are no disputed issues of material fact, and this Court is permitted to rule upon these issues as a matter of law.
6. The Court has considered both grounds for the Plaintiff’s Motion, namely a procedural entitlement to Summary Judgment and an entitlement to Summary Judgment based upon a substantive analysis of the facts and legal issues presented.
7. With respect to Plaintiff’s procedural argument that the Defendant has failed to assert any Affirmative Defenses by failing to amend its answer, or file a Cross-Motion for Summary Judgment, the Court grants the Defendant’s Ore Tenus Motion to Permit the Defendant to Amend its Pleadings to Conform with the Evidence Presented, thereby denying Plaintiff’s request for relief on those grounds alone.
8. However, with respect to the Plaintiff’s substantive argument, the Court finds merit in the Plaintiff’s argument that Nationwide is relying upon an exclusion to coverage that is invalid.
9. The Court has considered Florida Statute 627.736(4)(f) providing that “medical payments insurance, if available in a policy of motor vehicle insurance, shall pay the portion of any claim for personal injury protection medical benefits which is otherwise covered but is not payable due to the coinsurance provision of paragraph (1)(a)” [relating to 80% co-payments].
10. The Court has also considered Florida Statute 627.418 providing that any insurance policy or endorsement otherwise valid which contained any condition or provision not in compliance with the requirements of the insurance code shall not render the policy invalid, but such policy shall otherwise be construed and conditions applied as if such policy or endorsement had been in full compliance with the insurance code.
11. The Court has reviewed State Farm v. Swearingen, 590 So.2d 506 (Fla. 4th DCA 1991), and specifically find persuasive the clear intent of the legislature regarding such medical payment statute which is to make medical payments coverage available as a “supplement” to personal injury protection in order to permit purchase of insurance that would cover 100% of medical bills.
12. In granting the Plaintiff’s motion, this Court has considered the case of Christian v. Colonial Penn Insurance Company, 537 So. 2d 623 (Fla. 4th DCA 1988) which related to an insurance company who was trying to avoid paying medical payments benefits to an insured who also had personal health insurance coverage, and accordingly, the Court gives deference to the holding of that case that the policy exclusions in question “must give way to the mandatory requirements of section 627.736(4)(f)”.
13. Accordingly, after a review and analysis of the legal and factual issues presented, the Court is convinced that the exclusion relied upon by the Defendant is invalid.
14. Accordingly, Plaintiff’s Motion for Summary Judgment is GRANTED.
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