County Civil Court: INSURANCE—PIP Benefits dump truck, owned by the City, was a commercial motor vehicle for purposes of providing plaintiff (State Farm) with PIP subrogation rights under Florida Statute 627.7405.  The ruling of the trial court is affirmed. City of New Port Richey v. State Farm Mutual Automobile Insurance Company, 51-2003-AP-9WS (Fla. 6th Cir. App. Ct. March 27, 2006).

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

CITY OF NEW PORT RICHEY, 

            Defendant/Appellant,

                                                                       

v.

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY,                            CASE NO: 51-2003-AP-000009WS

                                                                        Lower No: 51-2005-CC-2494WS     

            Plaintiff/Appellee,

                         

___________________________/

 

Appeal from Pasco County Court

County Judge William Sestak

 

Donovan A. Roper, Esq. 

Attorney for Appellant

 

Rick Dalan, Esq.

Attorney for Appellee

 

ORDER AND OPINION

 

            This matter came before the court on City's appeal from an Order Granting State Farm's Motion for Partial Summary Judgment entered by the Pasco County Court . This Court has jurisdiction. Fla. R. App. P. 9.030(c).  The ruling of the trial court is affirmed.

            The underlying facts are not in dispute.  On Monday July 10, 2000, Mr. James Boone was in the course and scope of his employment as an employee of the City of New Port Richey while operating one of the City's dump trucks.  The dump truck in question was a 2000 GMC Top Kick with a gross vehicle weight rating of 24,500 LBS and does not require an operator to have a valid Commercial Drivers License (CDL). Mr. Andrew Delforno, an 83 year old male, was traveling south on Leo Kidd Avenue in a 1995 4 door Mercury Sable. Boone was headed west on Pine Hill Road.  There were no traffic control devices for eastbound and westbound traffic, but there was a stop sign controlling southbound traffic on Leo Kidd Avenue.  The speed limit on both streets was 30 MPH.  Delforno violated Boone's right of way by failing to stop at the stop sign and collided into the City dump truck driven by Boone. Delforno died that day.  Delforno's estate brought a civil wrongful death suit against the city.  All evidence in that civil suit overwhelmingly demonstrated that the driving actions and/or omissions of Delforno were the sole proximate cause of the accident, and directly caused by a myocardial infarction/heart attack prior to and during the accident at issue. There existed no evidence on the record to support the theory that Boone's driving actions and/or omissions in any way caused or contributed to the accident. As a result of the accident, Boone was also injured and received PIP benefits from his personal automobile insurance carrier, State Farm. 

            State Farm brought an action pursuant to Florida Statute 627.7405(3) titled "Insurer's right of reimbursement" seeking reimbursement of PIP benefits on behalf of its insured driver, Boone, while he was in the course and scope of his employment with the

City.

            The City filed a Motion for [Final] Summary Judgment and State Farm filed its Memorandum of Law in Opposition of the City's Motion for Final Summary Judgment.  State Farm also filed its Motion for Partial Summary Judgment.  The court held a hearing on the motions. The sole issue before the court was whether or not the dump truck, owned by the City, was a commercial motor vehicle for purposes of providing plaintiff (State Farm) with PIP subrogation rights under Florida Statute 627.7405.

            The City's position was that the city owned Mack dump truck was not defined as a "commercial motor vehicle" for purposes of the PIP subrogation statute, based upon several different statutory definitions.  Appellant argued that because of the fact that the PIP statutory definition of 'commercial motor vehicle' and/or 'commercial vehicle' is vague and ambiguous, and simply is defined as "any motor vehicle which is not a private passenger motor vehicle", under F.S. 627.732 (3)(b); one must necessarily look for further interpretation or definition purposes of the PIP statute in question, to the statutory rules governing motor vehicle insurance requirements under those PIP statutes, as promulgated by the Florida Legislature.  Appellant directed the court to Florida Administrative Code 4-176.001, F.S. 207, F.S. 320 and F.S. 627.732(3)(b) (2001); arguing that each statutory provision excluded government vehicles.  

            The court took it under advisement and thereafter entered an Order Denying Defendant's (City) Motion for Final Summary Judgment and Granting Plaintiff's Motion for Partial Summary Judgment. In the order, the court specifically found the dump truck owned by the city to be a commercial motor vehicle under the provisions of the Florida Motor Vehicle No Fault Law; that pursuant to section 627.7405 plaintiff has a right of reimbursement against defendant for benefits paid; that plaintiff is entitled to reimbursement under section 627.7405 without regard to fault or negligence on the part of the city.

            The City filed a Motion for Rehearing.  The trial court denied the Motion for Rehearing, after hearing, on June 1, 2005 and entered an order granting State Farm's Motion for Final Summary Judgment, entering judgment in favor of State Farm  and against the City in the amount of $9,275.00 plus costs of $128.00 for total judgment of $9,403.00.  The City appealed. 

            This Court has reviewed the briefs as well as the applicable statutes and finds that, as argued by State Farm, the clear language of the statute defines the dump truck at issue as a commercial motor vehicle. The statute reads,

            As s used in ss. 627.730-627.7405. the term:

            (3) "Motor vehicle" means any self-propelled vehicle with four or more wheels   which is of a type both designed and required to be licensed for use on the    highways of this state and any trailer or semitrailer designed for use with such             vehicle and includes:

                       

                        (a) A "private passenger motor vehicle," which is any motor vehicle which                      is a sedan, station wagon, or jeep-type vehicle and, if not used primarily                            for occupational, professional, or business purposes, a motor vehicle of the                pickup, panel, van, camper, or motor home type.

                        (b) A "commercial motor vehicle," which is any motor vehicle which is                           not a private passenger motor vehicle. 

 

                        The term "motor vehicle" does not include a mobile home or any motor                          vehicle which is used in mass transit, other than public school                                         transportation, and designed to transport more than five passengers                                     exclusive of the operator of the motor vehicle and which is owned by a                          municipality, a transit authority, or a       political subdivision of the state.

                        F.S.. § 627.732.

 

            First, the statute itself defines the term motor vehicle and commercial motor vehicle.  Therefore, there is no need to look to other definitions, as urged by the City. Second, the dump truck in question is certainly not a sedan, station wagon or jeep-type vehicle and, it is used primarily for occupational, professional or business purposes. F.S. 627.732(3)(a). Finally, the dump truck is not used in mass transit and is not designed to transport six people.  F.S. 627.732(3)(b). Additionally, F.S. 627.732(3)(b) uses the term "and"; ([t]he term "motor vehicle" does not include a mobile home or any motor vehicle which is used in mass transit, other than public school transportation, and designed to transport more than five passengers exclusive of the operator of the motor vehicle and which is owned by a municipality, a transit authority, or a political subdivision of the state.]  Therefore, it's not just that it is owned by the municipality, thus, the dump truck is a motor vehicle within the definition of Florida Statute 627.7405.  That section provides:

            Notwithstanding any other provisions of ss. 627.730-627.7405, any insurer       providing personal injury protection benefits on a private passenger motor vehicle     shall have, to the extent of any personal injury protection benefits paid to any             person as a benefit arising out of such private passenger motor vehicle insurance,           a right of reimbursement against the owner or the insurer of the owner of a          commercial motor vehicle, if the benefits paid result from such person having   been an occupant of the commercial motor vehicle or having been struck by the             commercial motor vehicle while not an occupant of any self-propelled vehicle.

 

            This would certainly seem to include State Farm since they were the PIP carrier on the dump truck driver's personal motor vehicle. There is no dispute that the City is the owner of the dump truck, a commercial motor vehicle.  Clearly, the driver of the dump truck was injured while he was an occupant of the City's dump truck.  It is, therefore,

           

            ORDERED and ADJUDGED that the ruling of the trial court be AFFIRMED.

 

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of  March, 2006.                                                        

                                                                                    ________________________

                                                                                    W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                                                    ____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                       

                                                                                    _____________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

 

Copies furnished to:

Honorable William Sestak

Christopher Fitzpatrick, Esq.

Donovan Roper, Esq.