25 Fla. L. Weekly Supp. 199a
Online Reference: FLWSUPP 2502CASTInsurance — Personal injury protection — Coverage — Owner of vehicle for which security was required by law — Passenger who owned an operable vehicle registered in state and who had operated the vehicle during the registration period before making the conscious decision not to operate vehicle was required to maintain insurance on the vehicle continuously throughout the registration period, irrespective of whether vehicle continued to be driven — Passenger not entitled to coverage for injuries sustained while riding in insured’s vehicle
MEDIVIEW, INC. (a/a/o Louibert Castor), Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 16-7470 COCE (53). April 26, 2017. Robert W. Lee, Judge. Counsel: Susan Guller, Weston, for Plaintiff. Maury Udell, Miami, for Defendant.
AMENDED1FINAL SUMMARY JUDGMENTIN FAVOR OF DEFENDANT
THIS CAUSE came before the Court on April 24, 2017 for hearing of the Defendant’s Motion for Final Summary Judgment and the Plaintiff’s Motion for [Partial] Summary Judgment, and the Court’s having reviewed the Motions, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
In this case, the Plaintiff seeks recovery of PIP benefits, asserting that the patient, who was a passenger in the insured’s vehicle at the time of the accident in September 2015, was an omnibus insured under the insured’s PIP policy. Fla. Stat. §627.736(4)(e)(4) (2015). The Defendant argues that the insured’s policy does not provide coverage to the passenger because he had his own vehicle that was required to be insured. See id. §627.736(4)(e)(4)(a). In response, the Plaintiff argues that the passenger was not required to have insurance on the vehicle, although it was registered, because the passenger made a conscious decision to let his own insurance lapse and not operate the vehicle. In other words, although the passenger’s vehicle was clearly “operable,” he parked the vehicle at his home and did not “operate” it while it was uninsured.
The Defendant responds that the vehicle was operable, and as such, was required to be registered. The Plaintiff counters that although the issue of operability has long been a part of PIP jurisprudence when determining whether a vehicle should be insured, this conclusion arises out of a portion of the statute that was repealed almost two decades ago. See Russel Lazega, Florida Motor Vehicle No-Fault Law §1:6(b)(5) (2016-17 ed.) (“inoperable” vehicles do not have to be insured; providing a list of factors to consider for determining whether a vehicle is “inoperable”). In the Plaintiff’s view, the issue is whether the vehicle is actually “operated” on the roads of the state, not whether the vehicle itself is “operable.”
The Court notes that the reported appellate cases on this issue all date back to 1988 and before. Prior to 1983, the language of the statute required registration and insurance for vehicles being “maintained in this state.” Fla. Stat. §320.02(1) (1981). The Legislature deleted this phrase from the statute in 1983. 1983 Fla. Laws ch. 83-318, §4. Therefore, for automobile accidents occurring prior to the effective date of the amendment, the courts were dealing with a different statute than we are dealing with today.
This Court and the parties were able to locate only two reported appellate cases that involved the issue of “operability” based on the language of the amended statute. See State Farm Mutual Automobile Ins. Co. v. Johnson, 536 So.2d 1089, 1092 (Fla. 4th DCA 1988) (appellate court upheld directed verdict that vehicle did not need to be insured because it was not “operable”); Quanstrom v. Standard Guaranty Ins. Co., 504 So.2d 1295, 1297 (Fla. 5th DCA 1987) (appellate court determined that change in statute meant that the focus now is whether the vehicle is actually being driven or operated, not whether it is “operable”). All previous reported cases appear to involve accidents that occurred before the statute changed. Nevertheless, it appears that the underpinning of these previous decisions is the language of the previous version of the statute that required registration and insurance for vehicles that were not merely “operated” on the roads, but also “maintained” for use on the roads, a requirement that was deleted from in 1983. See Tapscott v. State Farm Mutual Automobile Ins. Co., 330 So.2d 475, 477 (Fla. 1st DCA 1976). Trial courts, however, have continued to look to the issue of operability to determine whether a vehicle needs to be registered, and therefore insured. See, e.g., Six Doctors Medical Center v. Progressive American Ins. Co., 16 Fla. L. Weekly Supp. 349b (Broward Cty. Ct. 2009); Reidy v. Metropolitan Cas. Ins. Co., 13 Fla. L. Weekly Supp. 1076a (Palm Beach Cty. Ct. 2006); Hillery v. Lyndon Property Ins. Co., 10 Fla. L. Weekly Supp. 656a (St. Lucie Cty. Ct. 2003). Based on the change of the statute, as well as the Quanstrom decision, it appears that the Plaintiff may have a good argument that the post-1983 cases were wrongly decided. Nevertheless, the Johnson case, which recognized the vitality of the “operability” analysis post-amendment is a decision of the Fourth District Court of Appeal which considered the Quanstrom decision and more importantly which binds this Court. 536 So.2d at 1092. Further, the reported trial level decisions noted above are also all from County Courts within the jurisdiction of the Fourth District Court of Appeal.
That all being said, the issue of the effect of the amendment to the statute twenty years ago will have to be left for another day. The Court does not believe that the issue of operability is determinative of the facts in this case. Rather, the critical issue in this case is whether an operable vehicle must continue to be insured even if the owner decides not to drive it.
Under Florida law, a vehicle must be registered with the State if it “is operated or driven on the roads of this State.” Fla. Stat. §320.02(1) (2015). The statute provides an exception for “any motor vehicle that is not operated on the roads of this state during the registration period.” Id.
Under Florida Statute §324.022(1) (2015), “[e]very owner or operator of a motor vehicle required to be registered in this state shall establish and maintain the ability to respond in damages for liability on account of accidents.” Again, this obligation is triggered only if the vehicle is “required to be registered.” The question then is when is a vehicle “required to be registered”? This is a critical question because, under the PIP law, if the vehicle is required “to be registered and licensed in this state,” then the owner must maintain personal injury protection insurance coverage “continuously throughout the registration or licensing period.” Id. §627.733(1)(a) (emphasis added).
Reading section 627.733(1)(a) in conjunction with 320.02(1), the court concludes that the owner must maintain PIP coverage on the vehicle “continuously” throughout the registration period if the vehicle is “operated” on the roads during the registration period. In the instant case, the patient had a vehicle that he without dispute operated during the registration period. Before the registration period expired, the patient allowed his insurance to lapse. For purposes of this Motion, the Defendant concedes that the patient thereupon parked his vehicle and did not operate it at all for two (2) days, after which the patient was involved in an accident while a passenger in another person’s vehicle. The Plaintiff contends that the patient was not required to have the parked vehicle insured because he was not operating it on the roads. The problem for the patient, though, is that the statute requires that he maintain insurance on the vehicle “continuously” throughout the registration period if he operated it on the roads at any point “during” the registration period. Here, the patient had a vehicle that should have been insured. As such, he is not entitled to coverage under his friend’s policy although he was a passenger in the car.
The requirement to have insurance on a vehicle once it is registered when it has been operated during the registration period, regardless of whether it is actually thereafter operated on the roads of the state, comports with the understanding of the Florida Department of Highway Safety and Motor Vehicles. In responding to a question on whether a vehicle has to be insured if it is not being driven, the Department responded, “It does not matter if the vehicle is being driven, but because there is a valid registration for the vehicle, it must be insured.” Fla. Dep’t of Highway Safety and Motor Vehicles, Vehicle Insurance Question and Answers, at http://www.flhsmv.gov/ddl/frfaqgen.html (last visited Apr. 24, 2017). Accordingly, it is hereby
ORDERED and ADJUDGED that the Defendant’s Motion for Final Summary Judgment is GRANTED, and the Plaintiff’s [Partial] Motion for Summary Judgment is DENIED. The Plaintiff shall take nothing in this action, and the Defendant shall go hence without day. The Court reserves on the issue of attorney’s fees and costs.
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1This judgment is being amended for the sole purpose of correcting a reference on the bottom of page 4 of the original judgment which referred to “driver” when it should have referred to “passenger.”