Epperson v. Dixie Ins. Co.
| Decision Date | 10 December 1984 |
| Docket Number | No. AY-368,AY-368 |
| Parties | Kirk EPPERSON, Appellant, v. DIXIE INSURANCE CO., a foreign corporation doing business in Florida, Appellee. |
| Court | Florida District Court of Appeals |
Paul D. Srygley, Tallahassee, for appellant.
Robert C. Crabtree, of Fuller & Johnson, Tallahassee, for appellee.
This case arises under the Florida Motor Vehicle No-Fault Law 1 and involves a question of substantial importance to automobile liability insurers and nonresident owners of automobiles frequently driven into Florida. The specific question presented is whether a Georgia resident injured in an insured Florida motor vehicle is barred from recovering PIP benefits under section 627.736, Florida Statutes, from the Florida owner's insurer because the Georgia resident owns an uninsured motor vehicle which is registered, licensed, and garaged in Georgia but driven to work in Florida approximately four or five days each week, so that the uninsured vehicle is present in Florida more than 90 of the preceding 365 days. The trial court found that appellant was so barred and entered summary judgment for appellee. We affirm.
On January 21, 1982, appellant, Epperson, was injured in a motor vehicle accident while a passenger in an automobile owned and operated by David Rudd and insured by appellee, Dixie Insurance Company. Epperson sustained severe injuries that resulted in hospitalization and substantial medical expenses, and he made a claim for personal injury protection benefits against Dixie. On the date of the accident, Epperson resided in Bainbridge, Georgia, and owned a 1978 Ford pickup truck registered and garaged in Georgia, but he did not have any automobile liability insurance covering that truck or himself. Although Epperson usually kept the truck at his home in Georgia, for slightly more than a year prior to the accident he drove it to work in Tallahassee four or five days a week. Epperson's pickup truck was parked in Florida when the accident took place.
Personal injury protection benefits, as provided for in section 627.736, Florida Statutes (1981), are designed to reimburse persons injured in motor vehicle accidents for medical expenses and lost earnings, regardless of fault. In exchange, the owner or operator of a motor vehicle having such coverage is exempted from tort liability (except in certain limited circumstances). § 627.737, Fla.Stat. (1981). In general, Florida requires persons owning a motor vehicle regularly operated in Florida to carry automobile liability insurance sufficient to provide the security specified in section 627.733. All insurance policies issued for vehicles required to have security under that section must provide PIP benefits. § 627.736(1), Fla.Stat. (1981). Ordinarily, when a person is injured in a motor vehicle accident in Florida, he or she is entitled to PIP benefits from his or her own motor vehicle insurance carrier. § 627.736(1) and (4)(d), Fla.Stat. (1981). A passenger injured while riding in another's vehicle may not recover PIP benefits from the insurer of that vehicle if the passenger also owns a vehicle which is required to be insured by the Florida statute. § 627.736(4)(d)4 a and b, Fla.Stat. (1981). The passenger is deemed to be self-insured and personally liable for PIP benefits. § 627.733(4), Fla.Stat. (1981).
Applying the foregoing statutory provisions, Florida courts have held that a Texas resident injured while a passenger in a vehicle owned and driven by a Florida resident is entitled to recover PIP benefits from the owner's Florida insurer since the Texas resident was not the owner of a vehicle for which insurance was required under the Florida No-Fault Insurance Law. Security Insurance Co. v. Howgate, 343 So.2d 641 (Fla. 3d DCA 1977). On the other hand, it has been held that a person injured while a passenger in or the driver of an automobile insured under the Florida No-Fault Insurance Law is barred from recovering PIP benefits if he or she is the owner of an uninsured motor vehicle required to be insured by the no-fault law. Industrial Fire & Casualty Insurance Co. v. Augustin, 412 So.2d 418 (Fla. 3d DCA 1982); Tapscott v. State Farm Mutual Automobile Insurance Co., 330 So.2d 475 (Fla. 1st DCA 1976); Staley v. Florida Farm Bureau Mutual Insurance Co., 328 So.2d 241 (Fla. 1st DCA 1976).
Section 627.733(2) reads as follows:
Every nonresident owner or registrant of a motor vehicle which, whether operated or not, has been physically present within this state for more than 90 days during the preceding 365 days shall thereafter maintain security as defined by subsection (3) in effect continuously throughout the period such motor vehicle remains within this state.
Appellant argues that section 627.733(2) should be construed to mean that the vehicle must be physically present continuously for 90 days in the preceding 365 days; and since Epperson only drove his vehicle to and from Florida each day, it was not continuously within the state, and therefore he was not required to have the insurance under the Florida statute. Such construction of the statute, however, would render completely superfluous the language "during the preceding 365 days" because any continuous 90-day period would be sufficient, per se, regardless of the vehicle's presence during any preceding time period. As we construe the statute, if a nonresident operates his motor vehicle in and out of the state of Florida on a daily or weekly basis, and the vehicle is physically present on a cumulative basis within Florida more than 90 days during any preceding 365-day period, such vehicle is deemed to be present within Florida for a sufficient period of time to subject its owner to the security requirements of section 627.733. Accordingly, the court below did not err in the construction and application of the statute.
Dixie contends, alternatively, that Epperson was required by section 320.38(1), 2 to register and license his pickup truck in Florida within ten days after he had begun work here and that Epperson was, therefore, required by section 627.733(1) 3 to obtain no-fault insurance, including PIP coverage, regardless of the application of section 627.733(2). Since Epperson failed to have the required insurance, Dixie argues, he is precluded from recovering PIP benefits from Dixie.
Epperson responds to this argument by citing section 320.39, Florida Statutes (1981), 4 which authorizes reciprocal agreements for nonresident exemption from the provisions of section 320.38. Epperson appended to his reply brief a copy of a purported motor vehicle reciprocity agreement entered into by the state of Florida and the state of Georgia pursuant to this statute. In that document, the states purport to agree that:
[M]otor vehicles which are properly and currently registered and licensed in one of...
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