9 Fla. L. Weekly Supp. 714a
Insurance — Personal injury protection — Coverage — Passenger — Insurer has burden of proving that passenger is not covered under driver’s PIP policy because passenger owned a vehicle at the time of the accident — Where the only evidence presented by insurer that passenger owned a motor vehicle operated on the roads of this state is application for registration of vehicle sold by passenger for salvage value prior to accident, there is no competent evidence that passenger possessed a vehicle at the time of the accident, much less maintained an operable vehicle at that time
FITZROY NAIRNE, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. MC 00-5350 RB. March 30, 2002. Donald W. Hafele, Judge. Counsel: David T. Aronberg, Aronberg & Aronberg, Delray Beach. Kendrick J. Blackwell, Tampa.
FINAL JUDGMENT
THIS CAUSE having come before the Court for Final Hearing and the Court, having considered the record, having considered the testimony of the witnesses and the evidence admitted, having heard argument of counsel and having reviewed the applicable statutes and case law and otherwise being fully advised in the premises, finds as follows:
A. FACTS
This is a breach of contract action brought by the Plaintiff, FITZROY NAIRNE, for the recovery of payments for No-Fault benefits for medical services rendered to the Plaintiff under a personal injury protection insurance policy issued to the insured, Latoya Lipscomb, with Progressive Express Insurance Company. The Plaintiff contends that Progressive owes No-Fault benefits for medical services rendered to the Plaintiff as a result of an automobile accident which occurred on or about August 16, 1999. Progressive contends that the Plaintiff is not covered under the insurance contract issued to Latoya Lipscomb because the Plaintiff allegedly owned a motor vehicle thus falling under the financial responsibility law of the State of Florida. The Plaintiff contends that he did not own an operable motor vehicle as of August 16, 1999 and is covered under Latoya Lipscomb’s policy with Progressive.
At the Final Hearing, the parties stipulated to the following: (1) proper jurisdiction of the parties and subject matter; (2) that on or about August 16, 1999, FITZROY NAIRNE was involved in an automobile accident; (3) that on or about August 16, 1999, Latoya Lipscomb had a valid PIP insurance policy with Progressive; (4) that on or about August 16, 1999, FITZROY NAIRNE was a passenger in a vehicle owned by Latoya Lipscomb; (5) that on or about August 16, 1999, FITZROY NAIRNE sustained personal injuries related to the operation, maintenance or use of a motor vehicle; (6) that FITZROY NAIRNE incurred medical and related expenses as a result of the injuries sustained on August 16, 1999; and (7) that FITZROY NAIRNE timely furnished Progressive with written notice of said expenses.
B. ISSUES FOR DETERMINATION
1.Whether FITZROY NAIRNE owned an operable motor vehicle on August 16, 1999; and
2. Whether FITZROY NAIRNE is covered under the insurance contract between Latoya Lipscomb and Progressive for PIP benefits.
C. ANALYSIS
Under Florida law, personal injury protection benefits are deemed overdue if they are not paid within thirty (30) days after the insurer is furnished “written notice of the fact of a covered loss and the amount of same.” Section 627.736(4)(b), Florida Statutes (1999). Therefore, in a coverage case, the insurance company has the burden of proving that the person seeking PIP benefits is not covered under the subject policy. To rule otherwise would render the “no fault” insurance statute a “no pay” plan — a result the Court is sure was not intended by the legislature. Ivey v. Allstate, 25 FLW S1103 (Fla. 2000); Palmer v. Fortune Ins. Co., 26 FLW D278 (Fla. 5th DCA 2001).
The central factual issue in this case is whether FITZROY NAIRNE owned a motor vehicle at the time of the accident. If the Court finds that he, in fact, did own a motor vehicle, then the Plaintiff is not entitled to PIP payments under the subject insurance policy. However, if he did not own a motor vehicle at the time of the accident, then he is entitled to PIP payments under the subject insurance policy. The law with regard to ownership of a motor vehicle is that title alone is insufficient to establish ownership of a vehicle. Sterling v. GEICO, 600 So.2d 14 (Fla. 5th DCA 1992). There must be additional evidence of ownership, other than mere title, for the Court to find that Mr. Nairne did, in fact, own a motor vehicle at the time of the accident.
The Court finds that the Plaintiff, FITZROY NAIRNE, has complied with the required conditions precedent under the subject policy. Namely, he has submitted notice of proof of covered loss and the amount of same. Further, the Plaintiff introduced evidence that he submitted two PIP applications, an affidavit of non-ownership and a subsequent affidavit all informing Progressive that he did not own a vehicle at the time of the automobile accident. The testimony presented at trial was essentially uncontradicted concerning the fact that the Plaintiff, FITZROY NAIRNE, did not own an operable automobile at the time of the subject accident. The Plaintiff testified not only that he did not own a motor vehicle at that time but that he sold two vehicles for salvage value well before the accident. He further testified that on the date of the accident he was a passenger in the insured’s motor vehicle and that he was going to get a new drivers license and that he had been using his bicycle as transportation to and from work.
The only evidence introduced at the Final Hearing by Progressive regarding whether or not Mr. Nairne owned a vehicle at the time of the accident was an application for registration of a 1973 Chevrolet. This was one of the vehicles sold prior to the accident, according to the Plaintiff. Progressive failed to introduce any evidence that Mr. Nairne either had title to that vehicle or maintained that vehicle for operation on the roads of this state at the time of the accident in question.
The Court agrees with the rationale of the Second District Court of Appeal in Denmark v. Nationwide Mutual Fire Ins. Co., 384 So.2d 912 (Fla. 2d DCA 1980) that a question regarding whether a Plaintiff owns an operable motor vehicle at the time of an automobile accident “is essentially one of fact. . .for the trial court to resolve.” Id. See, also, Fortune Ins. Co. v. Oehme, 453 So.2d 920, 921 (Fla. 5th DCA 1984). Here, while the ability of the Plaintiff and his fiancee to recall certain events surrounding the disposal of the Plaintiff’s two vehicles was not particularly impressive, this Court was presented with essentially no competent evidence by the Defendant regarding whether the Plaintiff even possessed a vehicle at the time of the subject accident much less maintained an operable automobile at that time. Pursuant to Sherman v. Reserve Ins. Co., 350 So.2d 349, 353 (Fla. 4th DCA 1977), cert. dism., 355 So.2d 516 (Fla. 1978), this Court holds that the Plaintiff, FITZROY NAIRNE, is not “considered an owner or registrant of a motor vehicle required to be registered and licensed in this state, and therefore does not fall within the purview of the security requirements of §627.733, Florida Statutes” (1999).1 See, also, Ward v. Florida Farm Bureau Casualty Ins. Co., 375 So.2d 898 (Fla. 1st DCA 1979).
Based on the foregoing, it is hereby
ORDERED and ADJUDGED that judgment shall be entered on the coverage issue in favor of the Plaintiff, FITZROY NAIRNE, and against the Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY. The Court reserves jurisdiction with respect to damages, taxable costs, interest and attorney’s fees.
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1Section 320.01(1), Florida Statutes (1999) defines “motor vehicle” to include, “an automobile…operated on the roads of this state…”. (emphasis added). Likewise, §320.02(1) states, “…every owner …of a motor vehicle which is operated or driven on the roads of this state shall register the vehicle in this state.” (emphasis added).
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