9 Fla. L. Weekly Supp. 592b
Insurance — Personal injury protection — Where claimant injured while driving insured’s vehicle failed to maintain insurance on her own vehicle, admitted to driving own vehicle until right before the accident, but claimed that own vehicle was inoperable until repaired, there exists genuine issue of material fact regarding whether claimant’s vehicle was operable at time of the accident and, thus, whether registration and security was required on vehicle — Error to enter summary judgment in favor of insurer
ROSALIND HILLERY, Plaintiff/Appellant, vs. LYNDON PROPERTY INSURANCE COMPANY, Defendant/Appellee. Circuit Court, 19th Judicial Circuit (Appellate) in and for St. Lucie County. Case No. 00-CA-001340 (AC). L.T. No. 99-137 CC 09. June 6, 2002. Appeal from County Court, St. Lucie County, Judge Walsh presiding. Counsel: Glenn M. Blake, Blake, Torres & Mildner, P.A., Ft. Pierce, for Plaintiff/Appellant. Manuel R. Comras, Vernis & Bowling of Palm Beach, P.A., North Palm Beach, for Defendant/Appellee.
[County court order on remand at 10 Fla. L. Weekly Supp. 656a.]
(BRYAN, B. L., Jr., J.) The Appellant, Rosalind Hillery (hereinafter “Rosalind”), was involved in an accident on September 5, 1998. She was driving a vehicle owned by Doris Hillery, and subsequently filed a claim under Doris’s automobile policy with Appellee. A Motion for Summary Judgment was filed by Appellee, Lyndon Property Insurance Company (hereinafter “Lyndon”), after Rosalind filed a complaint for breach of the automobile policy for failing to pay PIP benefits as a result of the accident. The motion alleged that Rosalind Hillery was the driver of a vehicle owned by Doris Hillery; that Rosalind owned a 1988 Lincoln Towncar; that the Towncar was registered to her on the date of the accident; that she had no insurance on the Towncar on the date of the accident due to non-payment of the premium; that she was required to maintain the required security under Florida Statute §627.733(1); and that failure to maintain the security rendered her ineligible for coverage for the injuries sustained while driving Doris Hillery’s vehicle.
The trial court granted Appellee’s Motion for Summary Judgment. The court found that the undisputed evidence was that Rosalind owned a Lincoln Towncar, registered with the State of Florida at the time of the subject accident, and that her insurance was canceled on June 28, 1998. The court found that in the Third Supplemental Interrogatories, Rosalind admitted to using the vehicle up until “right before the accident.” The court concluded that the vehicle was operable and the insurance loss was unrelated to any inoperability of the vehicle.
The court stated that a party opposing the summary judgment motion is not permitted to alter his or her position in order to evade the “consequences of his previous pleadings, admissions, affidavits, depositions or testimony. McKean v. Kloeppel Hotels, Inc., 171 So.2d 552, 553 (Fla. 1st DCA 1965). The Court found that Rosalind’s affidavit created an ambiguity regarding the dates the insurance lapsed, as in the Fourth set of Interrogatories she stated that the insurance lapsed on June 28, 1998 and, in Appellant’s affidavit, that her insurance lapsed as of September 5, 1998. The court concluded that:
This is a question of law not a dispute as to a material issue in fact. There is no dispute of fact because the Plaintiff [Appellant] owned a motor vehicle for which insurance was required by Florida Statute 627.733(1) and allowed this insurance to lapse months before the accident and months before the inoperability. Therefore, the court is compelled to enter summary judgment in favor of defendant Lyndon Property Co.
Rosalind does not dispute that Florida Statute §627.733 requires the maintenance of “security” by the owner of a vehicle operated in the state. Rosalind contends that a dispute exists as to whether her automobile was operable.
She contends that her Lincoln Towncar was not subject to the requirements set forth in Florida Statute §627.733 because until a motor vehicle is repaired, it cannot function as a motor vehicle and is not subject to the requirements of the statute requiring security insurance. Sherman v. Reserve Insurance Co., 350 So.2d 349 (Fla. 4th DCA 1977).
Lyndon submits that the trial court properly granted the Motion for Summary Judgment because the Appellant owned a Lincoln Towncar at the time of the subject accident which required PIP insurance coverage pursuant to Florida Statute §627.730, et seq., 627.733(4), 627.736(4)(d)4a,b. The court found that the Lincoln Towncar was not in storage, was not permanently inoperable, was being driven on the roadways of this state by Rosalind even after her insurance had been cancelled, that she intended to keep the motor vehicle, and that the cancellation of insurance was unrelated to the inoperability of the Lincoln.
Lyndon also contends that Appellant failed to secure a court reporter and failed to timely submit a stipulated statement of the record or a statement of the proceedings.
A summary judgment is appropriate only when the facts are so crystalized that nothing remains but questions of law and there is not the slightest doubt as to any question of material fact. Williams v. Bevis, 509 So.2d 1304 (Fla. 1st DCA 1987). If the record demonstrates slightest doubt as to whether the possibility of genuine issues of material fact exists, the summary judgment should be reversed. Carbajo v. City of Hialeah, 514 So.2d 425 (Fla. 3d DCA 1987). See also Schooner Oaks Limited Co. v. Schooner Oaks Condominium Association, Inc., 776 So.2d 304 (Fla. 4th DCA 2000).
In this case the evidence fails to demonstrate the “operability” of the Lincoln at the time of the accident. The court, in Williams v. Leatherby Insurance Co., 338 So.2d 70 (Fla. 3d DCA 1976), held that temporary immobility of the vehicle had no effect on the requirements for security set forth in Florida Statute §627.733(1). That case was decided before the change in Fla. Stat. 320.02(1) which deleted the requirement of registration for vehicles “maintained” in the State. The case was distinguished in Quanstrom v. Standard Guaranty Insurance Company, 504 So.2d 1295 (Fla. 5th DCA 1987), cited with approval in State Farm Mutual Automobile Insurance Company v. Johnson, 536 So.2d 1089 (Fla. 4th DCA 1988). The court in Denmark v. Nationwide Mutual Fire Insurance Co., 384 So.2d 912 (Fla. 2d DCA 1980), opined that it cannot formulate a hard and fast rule which would apply to all situations involving the question of whether security is required. The question as to the inoperability of a vehicle is one of fact for the trial court to resolve. Denmark v. Nationwide Mutual Fire Insurance Co., 384 So.2d 912.
Section 627.733(1) provides in relevant part that: “Every owner or registrant of a motor vehicle *** required to be registered and licensed in this state shall maintain security as required by subsection (3) in effect continuously throughout the registration or licensing period.” Section 320.02(1), as amended, provides in relevant part that “*** every owner or person in charge of a motor vehicle which is operated or driven on the roads of this state shall register the vehicle in this state. *** No registration is required for any motor vehicle which is not operated on the roads of this state during the registration period.” There exists a genuine issue of material fact regarding whether the vehicle owned by Rosalind Hillery was operable at the time of her accident on September 5, 1998 and, thus, whether it was required to be registered pursuant to Section 320.02 and whether the security prescribed by Section 627.733(1) was required to be maintained upon it.
We therefore reverse the final summary judgment and remand for proceedings consistent herewith.
* * *
