Opinion
CASE NO. 22-81849-CIV-DIMITROULEAS
2023-05-18
Lauren ZIPES, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant.
Howard Scott Grossman, Grossman Attorneys at Law, Boca Raton, FL, Jeffrey M. Liggio, Liggio Law, P.A., West Palm Beach, FL, Philip Mead Burlington, Burlington & Rockenbach, P.A., West Palm Beach, FL, for Plaintiff. Kelly Lynn Gillis, Boyd and Jenerette, Jacksonville, FL, Kansas Renee Gooden, Boyd & Jenerette, P.A., Miami, FL, for Defendant.
Howard Scott Grossman, Grossman Attorneys at Law, Boca Raton, FL, Jeffrey M. Liggio, Liggio Law, P.A., West Palm Beach, FL, Philip Mead Burlington, Burlington & Rockenbach, P.A., West Palm Beach, FL, for Plaintiff. Kelly Lynn Gillis, Boyd and Jenerette, Jacksonville, FL, Kansas Renee Gooden, Boyd & Jenerette, P.A., Miami, FL, for Defendant. ORDER ON MOTIONS FOR SUMMARY JUDGMENT WILLIAM P. DIMITROULEAS, United States District Judge
THIS CAUSE comes before the Court on Defendant Progressive American Insurance Company ("Defendant")'s Amended Motion for Summary Judgment [DE 25] ("Defendant's Motion") and Plaintiff Lauren Zipes ("Plaintiff")'s Counter-Motion for Summary Judgment [DE 30] ("Plaintiff's Motion") (collectively, the "Motions"). The Court has carefully reviewed the Motions [DE's 25, 30], the Responses [DE's 30, 33], the Replies [DE's 32, 34], the statements of undisputed material facts [DE's 24, 29], and the supplemental briefing [DE's 36, 39]. The Court is otherwise fully advised in the premises. For the reasons stated below, the Court will deny both Motions.
In lieu of filing a response to Defendant's Statement of Undisputed Material Facts [DE 24] ("DSOF") or filing her own statement of undisputed material facts, Plaintiff filed a Notice of Adopting Defendant's Statement of Undisputed Material Facts. See [DE 29]. Accordingly, the Court treats all facts contained in Defendant's Statement of Undisputed Material Facts as undisputed.
This removal action arises from a dispute involving uninsured motorist coverage for injuries Plaintiff incurred as a result of an accident that occurred on March 5, 2021 while Plaintiff was riding as a passenger in a Tracker 500S off-highway vehicle (the "OHV"). DSOF ¶ 1. Plaintiff seeks uninsured/underinsured motorist ("UM") benefits from Defendant for injuries she sustained in the accident pursuant to an auto policy issued by Defendant to Jonathan Moskovits (the "Policy"). DSOF ¶ 2.
Defendant's Statement of Undisputed Material Facts [DE 24] include various citations to specific portions of the record. Any citations herein to the Statement of Undisputed Material Facts should be construed as incorporating those citations to the record.
On December 15, 2022, Plaintiff filed her Amended Complaint, the operative complaint, alleging three causes of action against Defendant: a claim for uninsured/underinsured motorist benefits (Count I); a claim for declaratory judgment/injunctive relief (Count II); and a claim for bad faith (Count III). See [DE 14]. On January 12, 2023, the Court granted Defendant's Motion to Dismiss, dismissing Plaintiff's bad faith claim as premature. See [DE's 16, 20]. In Count I, Plaintiff seeks to recover uninsured/undersinsured motorist ("UM") benefits to compensate for injuries she sustained in the March 5, 2021 accident. See [DE 14]. In Count II, Plaintiff requests declaratory relief, alleging that there is a disagreement between her and Defendant as to whether the policy provides UM coverage for the accident. See id.
The parties have now filed cross-motions for summary judgment regarding whether the Policy provides UM coverage to Plaintiff. See [DE's 25, 30].
II. STANDARD OF REVIEW
Under Rule 56(a), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears "the stringent burden of establishing the absence of a genuine issue of material fact." Sauve v. Lamberti, 597 F. Supp. 2d 1312, 1315 (S.D. Fla. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
"A fact is material for the purposes of summary judgment only if it might affect the outcome of the suit under the governing law." Kerr v. McDonald's Corp., 427 F.3d 947, 951 (11th Cir. 2005) (internal quotations omitted). Furthermore, "[a]n issue [of material fact] is not 'genuine' if it is unsupported by the evidence or is created by evidence that is 'merely colorable' or 'not significantly probative.' " Flamingo S. Beach I Condo. Ass'n, Inc. v. Selective Ins. Co. of Southeast, 492 F. App'x 16, 26 (11th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "A mere scintilla of evidence in support of the non-moving party's position is insufficient to defeat a motion for summary judgment; there must be evidence from which a jury could reasonably find for the non-moving party." Id. at 26-27 (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505). Accordingly, if the moving party shows "that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the nonmoving party" then "it is entitled to summary judgment unless the nonmoving party, in response, comes forward with significant, probative evidence demonstrating the existence of a triable issue of fact." Rich v. Sec'y, Fla. Dept. of Corr., 716 F.3d 525, 530 (11th Cir. 2013) (citation omitted).
In deciding a summary-judgment motion, the Court must view the facts in the light most favorable to the nonmoving party. Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). The Court also must resolve all ambiguities and draw all justifiable inferences in favor of the nonmoving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
III. DISCUSSION
The Policy provides UM coverage under the following provision:
INSURING AGREEMENTDSOF ¶ 3 (emphasis in original). At issue is whether the OHV Plaintiff was riding in at the time of the accident constitutes an "uninsured motor vehicle."
If you pay the premium for this coverage, we will pay for damages, other than punitive or exemplary damages, that an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:
1. sustained by an insured person;
2. caused by an accident; and
3. arising out of the ownership, maintenance or use of an uninsured motor vehicle.
The Policy defines the term uninsured motor vehicle, in relevant part, as follows:
4. "Uninsured motor vehicle" means a land motor vehicle or trailer of any type: a. to which no bodily injury liability bond or policy applies at the time of the accident;
. . . .
b. to which a bodily injury liability bond or policy applies at the time of the accident, but its limits of liability for bodily injury is less than the bodily injury damages an insured person is legally entitled to recover;DSOF ¶ 4 (emphasis in original). The Policy does not define the term "land motor vehicle."
The Policy also states that an "uninsured motor vehicle" does not include "any vehicle or equipment . . . designed mainly for use off public roads, while not on public roads." DSOF ¶ 5. Plaintiff asserts that "it is undisputed that the accident occurred while [the OHV] was being operated on a public road," but fails to cite to record evidence demonstrating this fact. [DE 30] at ¶ 2.
Under Florida law, insurance policy interpretation is a question of law for the court. Technical Coating Applicators, Inc. v. U.S. Fid., & Guar. Co., 157 F.3d 843, 844 (11th Cir. 1998); Penzer v. Transp. Ins. Co., 29 So. 3d 1000, 1005 (Fla. 2010). A court's inquiry looks to the "plain language of the policy, as bargained for by the parties." Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla. 2000). However, where "the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and the [other] limiting coverage, the insurance policy is considered ambiguous." Taurus Holdings, Inc. v. United States Fid. Co., 913 So. 2d 528, 532 (Fla. 2005) (quoting Anderson, 756 So. 2d at 34). "[A]mbiguity exists in an insurance policy only when its terms make the contract susceptible to different reasonable interpretations . . . ." Fireman's Fund Ins. Co. v. Tropical Shipping & Const. Co., 254 F.3d 987, 1003 (11th Cir. 2001). The ambiguity must be genuine, and the lack of a definition for an operative term "does not, by itself, create an ambiguity." Botee v. S. Fid. Ins. Co., 162 So.3d 183, 186 (Fla. 5th DCA 2015). "When a term in an insurance policy is undefined, it should be given its plain and ordinary meaning, and courts may look to legal and non-legal dictionary definitions to determine such a meaning." Id.
The parties' dispute centers on the correct application of UM statutory and case law to the term "uninsured motor vehicle." Defendant argues that the Court should define the term "uninsured motor vehicle" in accordance with the term "motor vehicle" as it is defined in Florida Statutes § 324.021, Florida's Financial Responsibility Law (the "FRL"). The FRL defines the term "motor vehicle" as "[e]very self-propelled vehicle that is designed and required to be licensed for use upon a highway." See Fla. Stat. § 324.021(1). Defendant argues that it is undisputed that the OHV does not meet the definition of "motor vehicle" contained within the FRL, DSOF ¶¶ 12-14, and therefore the OHV is not an "uninsured motor vehicle" for purposes of UM coverage. Plaintiff argues that it is improper to rely on the FRL because the plain language of the Policy controls, and the plain language indicates that Defendant intended to provide more coverage than is statutorily required. The Court agrees with Plaintiff.
The Eleventh Circuit's recent published opinion in State Farm Mut. Auto. Ins. Co. v. Spangler, 64 F.4th 1173 (11th Cir. 2023) is directly on point and highly instructive. In Spangler, the insured sought to recover UM benefits for injuries she sustained as a result of an accident involving a Razor Pocket Mod scooter. Id. at 1177. The UM section of the policy required State Farm to "pay compensatory damages for bodily injury an insured is legally entitled to recover from the owner or driver of an uninsured motor vehicle." Id. at 1179. The policy defined the term "uninsured motor vehicle," in relevant part, as "a land motor vehicle." Id. However, the term "land motor vehicle" was not defined in the policy. Id. State Farm argued that the term "uninsured motor vehicle" should be interpreted consistently with the definition of "motor vehicle" contained in the FRL. Id. at 1177. Because the scooter did not fit the definition of "motor vehicle" contained within the FRL, State Farm argued, the scooter was not subject UM coverage. Id. The district court agreed, finding that the statutory definition of "motor vehicle" resolved the dispute in State Farm's favor. Id. at 1178.
Because the Eleventh Circuit's decision in Spangler was issued on April 3, 2023, just ten days after the briefing on Defendant's Motion had concluded, the Court ordered supplemental briefing. See [DE 35].
On appeal, the Eleventh Circuit reversed, finding that the district court erred in concluding that the scooter was not a "land motor vehicle" and thus not an "uninsured motor vehicle." Id. at 1184. The Eleventh Circuit reached its decision on two primary grounds. First, relying on dictionary definitions, the Court defined the term "land motor vehicle" in accordance with its plain and ordinary meaning as "(1) a means of carrying or transporting something, (2) on the solid part of the earth, while being (3) powered by an engine that imparts motion." Id. at 1180. In determining that the scooter fell within the scope of the plain and ordinary meaning of "land motor vehicle," the Court noted "that the term is broader than the term 'motor vehicle' and encompasses more than vehicles designed for use on public roadways." Id.
Second, the Eleventh Circuit rejected State Farm's argument that the FRL's definition of "motor vehicle" dictated the meaning of "land motor vehicle" in the policy. Id. at 1181-84. This is because, by its plain language, State Farm's policy provided more UM coverage than required by Florida law:
. . . Because State Farm has not defined the term "uninsured motor vehicle" in a way that fails to comply with the FRL or UM statute, we see no reason to redefine a Policy term by incorporating a statutory definition. CTC Dev. Corp., 720 So. 2d at 1076 ("[W]hen an insurer fails to define a term in a policy, the insurer cannot take the position that there should be a narrow, restrictive interpretation of the coverage provided." (alteration adopted) (internal quotation marks omitted)). Although there is "no requirement that an insured be protected to a greater extent than that statutorily mandated," Carguillo [v. State Farm Mut. Auto. Ins. Co.], 529 So. 2d [276,] 278 [(Fla. 1988)], there is no prohibition against greater coverage. If State Farm saw fit to exclude a vehicle such as the Razor Pocket Mod from UM coverage, it could have done so—provided that such an exclusion would not violate the minimum requirements of the FRL and the UM statute.
And the Policy's definition of the term "uninsured motor vehicle" as a "land motor vehicle" complies with Florida law. "It is well settled that, as a general rule, 'parties are free to "contract-out" or "contract around" state or federal law with regard to an insurance contract, so long as there is nothing void as to public policy or statutory law about such a contract.' " Green v. Life & Health of Am., 704 So. 2d 1386, 1390 (Fla. 1998) (quoting King v. Allstate Ins. Co., 906 F.2d 1537, 1540 (11th Cir. 1990)). Therefore, a policy may "provide[ ] all the coverage [a] statute demands, and more." See Hill v. State Farm Mut. Auto. Ins. Co., 237 Va. 148, 375 S.E.2d 727, 729 (1989) (finding that, where an insurance policy broadly defined motor vehicle, a moped was a motor vehicle despite that the state's "financial responsibility law" excluded mopeds from
its definition of motor vehicle, reasoning that an insurer may offer "broader coverage than the minimum prescribed by law").Id. at 1184. The Court agrees with the Eleventh Circuit's application of Florida law in Spangler and finds it applicable here.
To sum up, neither Carguillo nor Grant requires that the FRL's definition of "motor vehicle" be incorporated into a policy that defines "uninsured motor vehicle" more broadly. An insurer may provide more coverage than Florida law requires. Based on the plain language of the Policy, State Farm has done just that—provided more UM coverage than required by Florida law. Thus, because the plain meaning of the term "land motor vehicle" includes the Razor Pocket Mod scooter, and we are unpersuaded by State Farm's argument that the FRL's definition of motor vehicle determines the scope of the Policy, we conclude that the Razor Pocket Mod is an uninsured motor vehicle under the Policy.
Like the policy in Spangler, the Policy here defines the term "uninsured motor vehicle," in relevant part, as "a land motor vehicle." DSOF ¶ 4. Also like the policy in Spangler, the Policy does not define the term "land motor vehicle." Defendant does not dispute this. Instead, Defendant argues that, unlike the policy in Spangler, the Policy in this case contains a conformity clause. That clause provides:
TERMS OF POLICY CONFORMED TO STATUTESDSOF ¶ 6 (emphasis in original). Applying the definition of "land motor vehicle" set forth in Spangler, Defendant argues, would render the conformity clause in the Policy meaningless. The Court disagrees.
If any provision of this policy fails to conform to the statutes of the state listed on your application as your residence, the provision shall be deemed amended to conform to such statutes. All other provisions shall be given full force and effect. Any disputes as to the coverages provided or the provisions of this policy shall be governed by the law of the state listed on your application as your residence.
The Policy's conformity clause, by its plain terms, only applies "[i]f any provision of this policy fails to conform to the statutes of the state listed on [the] application." DSOF ¶ 6. Stated differently, provisions in the Policy are amended to the extent they fail to comply with the law of the state that is listed on the application. For example, the conformity clause would apply in the context of UM coverage if the Policy provided less coverage than Florida law requires. But the Eleventh Circuit found that defining "uninsured motor vehicle" as a "land motor vehicle" complies with Florida law, and in fact provides more UM coverage than Florida law requires. Spangler, 64 F. 4th at 1180, 1184. Although there is no Florida law directly on point, other courts have held that a conformity clause applies only when the policy directly conflicts with a statutory provision. See, e.g., Lessard v. Milwaukee Ins. Co., 514 N.W.2d 556, 559 (Minn. 1994) ("A conformity clause in an insurance policy operates to substitute a statutory provision for a policy provision only where the two provisions are in direct conflict.") (citing Atwater Creamery Co. v. Western Nat'l Mut. Ins. Co., 366 N.W.2d 271, 275 (Minn. 1985)); Lawrimore v. Old Republic Ins. Co., No. 2:14-CV-1275-RMG, 2015 WL 12807712, at *4 (D.S.C. Feb. 19, 2015) (collecting cases). Because Defendant's UM coverage provision does not directly conflict with Florida law, the conformity clause does not apply. Accordingly, the Court finds that the definition of "land motor vehicle" in Spangler would not be inconsistent with the Policy's conformity clause, which does not apply here.
To the extent that Defendant appears to argue that the conformity clause requires the FRL's definition of "motor vehicle" be incorporated in the Policy when that Policy defines "uninsured motor vehicle" more broadly than the FRL requires, the Court rejects such an argument. If Defendant intended to define the term "uninsured motor vehicle" in a way that mirrors the FRL, it could have done so. Defendant points to no Florida statute that requires that insurance policies define motor vehicle in the way it is defined in the FRL or prohibits insurance policies from providing broader coverage than the minimum prescribed by law. The Court is not persuaded by the cases cited by Defendant, which are distinguishable from the instant case. See, e.g., Lane v. Allstate Ins. Co., 472 So. 2d 823, 824 (Fla. 4th DC A 1985) (finding that a moped was a bicycle and not a "motorized land vehicle" excluded from coverage under a homeowner's insurance policy); Geico Gen. Ins. Co. v. Schwinn, No. 8:04CV1485T17TBM, 2006 WL 1529092, at *6 (M.D. Fla. May 30, 2006) (looking to the statutory definition of "motor vehicle" to define the term "uninsured auto," and noting that the coverage provision specifically referred to the requirements of the FRL). Accordingly, the conformity clause does not require the FRL's definition of "motor vehicle" be incorporated into the Policy, which defines "uninsured motor vehicle" more broadly than Florida law requires.
Because the Court finds that the definition of "land motor vehicle" set forth in Spangler applies, the Court must now apply the plain and ordinary meaning of the term to the vehicle at issue—a Tracker 500S off-highway vehicle. As discussed supra, the Eleventh Circuit defined the term "land motor vehicle" in accordance with its plain and ordinary meaning as "(1) a means of carrying or transporting something, (2) on the solid part of the earth, while being (3) powered by an engine that imparts motion." Spangler, 64 F. 4th at 1180. Applying the plain and ordinary meaning of the term to scooter at issue in that case, the Eleventh Circuit found as follows:
The Razor Pocket Mod was designed to transport a rider and personal items. It has spoked, inflatable wheels made for traveling on land. It is powered by two 12-volt batteries that provide electricity to a 250W motor. Thus, the Razor Pocket Mod scooter falls within the scope of the plain and ordinary meaning of a land motor vehicle.Id. at 1181.
Here, Plaintiff has failed to set forth any facts to show that the OHV meets the plain and ordinary meaning of "land motor vehicle." The only facts cited in support of Plaintiff's Motion are those undisputed facts set forth in Defendant's Statement of Undisputed Material Facts, which Plaintiff adopted. See [DE's 24, 29]. None of the facts contained in Defendant's Statement of Undisputed Material Facts relate to whether the OHV was designed to carry or transport something, whether it was made for traveling on land, or whether it was powered by an engine that imparts motion. While the OHV likely meets all the elements of this definition, the Court cannot grant summary judgment in favor of Plaintiff based on assumptions. Rather, Plaintiffs must cite to some undisputed facts that would allow the Court to analyze whether the OHV meets the definition of "land motor vehicle" set forth in Spangler. See State Farm Fire & Cas. Co. v. Castillo, 829 So. 2d 242, 244 (Fla. 3d DCA 2002) ("The question of whether a particular risk is covered by an insurance policy is a question of law when the facts are undisputed.") (emphasis added). Because Plaintiff has failed to so, she has not met her initial burden and summary judgment in her favor is inappropriate. See Lamberti, 597 F. Supp. 2d at 1315; see also CPS MedManagement LLC v. Bergen Reg'l Med. Ctr., L.P., 940 F. Supp. 2d 141, 150 (D.N.J. 2013) ("That one of the cross-motions is denied does not imply that the other must be granted.")
Defendant initially raised this argument as grounds to deny Plaintiff's Motion, but later withdrew the argument. See [DE's 36, 38]. It is unclear whether Defendant withdrew the argument because it does not dispute that the OHV meets Spangler's definition of "land motor vehicle." Nevertheless, the Court cannot grant summary judgment in favor of the movant based on undisputed facts or stipulations between the parties that the movant fails to present to the Court.
IV. CONCLUSION
Based upon the foregoing, it is ORDERED AND ADJUDGED as follows:
1. Defendant's Amended Motion for Summary Judgment [DE 25] is DENIED; and
2. Plaintiff's Counter-Motion for Summary Judgment [DE 30] is DENIED.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 18th day of May, 2023.