9 Fla. L. Weekly Supp. 224b
Insurance — Personal injury protection — Coverage — Exclusions — Injuries sustained by named insured while occupying motor vehicle owned by named insured and not insured under policy — Action against insurer which denied coverage for injuries sustained by plaintiff who was insured under policy covering vehicle owned by his mother but who was injured while driving a vehicle of contested ownership which was not covered under policy — Error to enter summary judgment in favor of insurer where, although vehicle insured was driving was titled in the name of insured’s mother and father, evidence that insured’s parents were separated for five years prior to accident raises possibility that insured’s mother did not in fact own the vehicle
ERNESTO GUERRERO, Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 01-023 AP. L.C. No. 99-10541 SP 25. Opinion filed February 12, 2002. This is an appeal from Miami-Dade County Court, the Honorable Caryn C. Schwartz, presiding. Counsel: Mari Sampedro-Iglesia, for Appellant. No Appearance for Appellee.
(Before THOMAS S. WILSON, BERNARD S. SHAPIRO, ELEANOR L. SCHOCKETT, JJ.)
OPINION
(WILSON, J.) Ernesto Guerro appeals the summary judgment dismissal of his suit against United Automobile Insurance Company from Miami-Dade County Court. United has filed no response.
Ernesto Guerro and his mother were named insureds of a 1990 Ford Probe owned by the mother. The insurer was United. Mr. Guerro was injured while driving a 1986 Mercury Sable which was not insured by United. United, claiming that the 1986 Mercury Sable was owned by Mr. Guerro’s Mother, denied coverage pursuant to § 627.736(2)(a), Fla. Stat. Ownership of the 1986 Mercury Sable is contested by affidavit.
Section 627.736(2)(a), Fla. Stat. states in pertinent part that “[a]ny insurer may exclude benefits…[f]or injury sustained by the named insured….while occupying another motor vehicle owned by the named insured and not insured under the policy. Hence, § 627.736(2)(a) applies only if the 1986 Mercury Sable was owned by Ernesto Guerro or his mother.
On United’s motion for summary judgment, the trial court found that there was no disputed question of material fact and that United prevailed as a matter of law. We disagree and reverse.
As a preliminary matter, it must be noted that United has filed nothing with this Court. Generally speaking, it is the duty of counsel to prepare appellate briefs so as to acquaint the Court with the material facts, the points of law involved, and the legal arguments supporting the positions of the respective parties. Polyglycoat Corp. v Hirsch Distributors, Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983). “When points, positions, facts and supporting authorities are omitted from the brief, a court is entitled to believe that such are waived, abandoned, or deemed by counsel to be unworthy.” Id. Appellee’s failure to support the ruling of the trial court places an undue burden on the appellate court, and, if Appellee believes the ruling is not worthy of support, he should confess error and join Appellant in seeking a reversal. Title and Trust Co. of Florida v. Salameh, 407 So. 2d 1035, 1036 (Fla. 1st DCA 1981).
The appellee has the responsibility to support the trial court’s ruling or concede error and to assist the appellate court through the medium of a responsive brief. In this case appellees neither filed a brief nor provided us any written reason for their failure to do so. While this court recognizes the economic realities of compensating appellate counsel in a case of this nature, at the very least, there should be some written communication to the court explaining the failure to provide such brief.
Lakes of Emerald Hills, 558 So. 2d at 443 (Fla. 4th DCA 1990) (citations omitted); see also Slomovic v. Ves Carpenter Contractors, Inc., 292 So. 2d 60 (Fla. 4th DCA 1974).
Turning to the matters before us, the standard of review for a summary judgment order is de novo and requires viewing the evidence in the light most favorable to the non-movant, Mr. Guerro. Sierra v. Shevin, 2000 WL 873292 (Fla. 3d DCA) [25 Fla. L. Weekly D1605a]. The movant for a summary judgment must conclusively establish the nonexistence of genuine issues of material fact. Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). If the “slightest doubt” exists, then summary judgment must be reversed. Hancock v. Department of Corrections, 585 So. 2d 1068 (Fla. 1st DCA 1991). “The burden for such a movant…. is extremely heavy in that `the movant must demonstrate conclusively and to a certainty from the record that the defendant cannot plead or otherwise raise a genuine issue of material fact.”’ Beach Higher Power Corp. v. Granados, 717 So. 2d 563, 565 (Fla. 3d DCA 1998) quoting Hodkin v. Ledbetter, 487 So. 2d 1214, 1217 (Fla. 4th DCA 1986).
The 1986 Mercury Sable was titled in the name of Mr. Guerro’s Mother and Father. While title establishes presumptive ownership, such presumption may be overcome by competent evidence. Nash Miami Motors v. Bandel, 47 So. 2d 701, 703 (Fla. 1950). “[A] registered certificate of title is not, in all cases, conclusive proof of ownership.” Id. To overcome this presumption, Mr. Guerro provided evidence that Mr. Guerro’s Mother and Father had been separated for five years prior to the accident in question. It is therefore argued that Mr. Guerro’s mother did not “own” the 1986 Mercury Sable despite the certificate of title.
While the doubt raised Mr. Guerro is by no means overwhelming, it is sufficient to meet the minimal standards necessary to overcome a motion for summary judgment. The non-moving party has established that his mother and father were separated for more than five years prior to the accident in question. Viewing the evidence in a light most favorable to Mr. Guerro allows the inference or raises the possibility that Mr. Guerro’s mother did not, in fact, “own” the 1986 Mercury Sable. Accordingly, there exists a disputed question of material fact which precludes summary judgment. The judgment is reversed and all remaining motions on appeal are denied. REVERSED and REMANDED. (BERNARD S. SHAPIRO, ELEANOR L. SCHOCKETT, JJ., concur.)
* * *
