Third District Court of Appeal
State of Florida
Opinion filed August 25, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-101
Lower Tribunal Nos. 20-70 AP, 14-7110 CC
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Geico General Insurance Company,
Appellant,
vs.
Hialeah Diagnostics, Inc.
a/a/o Maria Villegas,
Appellee.
An Appeal from the County Court for Miami-Dade County, Myriam
Lehr, Judge.
Rumberger, Kirk & Caldwell, P.A., Monica C. Segura and K. Abigail
Roberts, for appellant.
Douglas H. Stein, P.A., and Douglas H. Stein, for appellee.
Before HENDON, GORDO and BOKOR, JJ.
GORDO, J.
Geico General Insurance Company appeals the denial of a motion for
leave to amend its answer and affirmative defenses and the entry of final
summary judgment in favor of Hialeah Diagnostics, Inc. for recovery of
personal injury protection (“PIP”) benefits. We have jurisdiction. See Fla. R.
App. P. 9.030(b)(1)(A). We conclude that the trial court erred in granting
summary judgment as a matter of law where there remained issues of fact
as to coverage and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Hialeah Diagnostics sued Geico for recovery of PIP benefits for
treatment rendered to Maria Villegas following an accident in 2012. Villegas
was a passenger in a medical transportation services van that was involved
in an accident with a vehicle driven by a Geico insured, Miriam Morales.
Villegas was not insured by Geico. Following the accident, Villegas received
treatment from Hialeah Diagnostics. Hialeah Diagnostics sent a pre-suit
demand letter to Geico for payment of the claim. The letter, however, listed
the wrong Geico insured (a person named Margarita Berrera) and a claim
number unrelated to the instant action.
In May 2014, Hialeah Diagnostics sued Geico for payment of benefits
for services rendered to Villegas. Hialeah Diagnostics averred that Villegas
was insured under a Geico policy. Geico answered the complaint and
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asserted as an affirmative defense that Villegas was not covered under a
Geico insurance policy but was covered under a policy of insurance with
Illinois National Insurance Company. In 2016, upon discovering that an
affirmative defense of defective pre-suit demand must be added to the
matter, Geico filed a motion for leave to amend its answer and affirmative
defenses. The trial court denied the motion for leave to amend in an
unelaborated order in September 2019.
In November 2019, Hialeah Diagnostics moved for summary judgment
claiming that Geico did not conduct a proper investigation prior to denying
the claim. Hialeah Diagnostics contended that it could only recover PIP
benefits for services rendered to Villegas under the tortfeasor’s Geico policy.
In opposition of summary judgment, Geico furnished the deposition of its PIP
litigation adjuster attesting that Hialeah Diagnostics sent a demand letter
under the incorrect claim number. The adjuster testified that Hialeah
Diagnostics never submitted billing or a PIP demand under the correct claim
number. The adjuster clarified that Geico never cleared Villegas for
coverage under a Geico policy at any point and that Villegas did not qualify
for PIP coverage under any Geico policy. The adjuster testified that,
pursuant to the police report generated at the time of the accident, the
medical transportation services vehicle in which Villegas was a passenger
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was insured by Illinois National. The trial court granted summary judgment
in favor of Hialeah Diagnostics following a hearing in January 2020.
LEGAL ANALYSIS
We review the trial court’s summary judgment order de novo. Volusia
County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).
“In order to prevail on a motion for summary judgment, the moving party has
an obligation to demonstrate conclusively the absence of any genuine issues
of material fact” and that it is entitled to judgment as a matter of law. RV-7
Prop., Inc. v. Stefani De La O, Inc., 187 So. 3d 915, 917 (Fla. 3d DCA 2016).
Hialeah Diagnostics fails to establish on summary judgment that
Villegas was entitled to coverage under a Geico policy. Section 627.736(1),
Florida Statutes (2020) provides: “An insurance policy complying with the
security requirements of s. 627.733 must provide personal injury protection
to the named insured, relatives residing in the same household, persons
operating the insured motor vehicle, passengers in the motor vehicle, and
other persons struck by the motor vehicle and suffering bodily injury while
not an occupant of a self-propelled vehicle . . . .” The record is devoid of any
evidence that Villegas was a named insured under a Geico insurance policy
or a relative residing in the same household with a Geico insured, that she
was operating an insured motor vehicle, that the medical transportation
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services van was insured under a Geico policy or that Villegas was a
pedestrian struck by a Geico insured vehicle. Moreover, Hialeah Diagnostics
failed to show under Florida law that Villegas would be entitled to coverage
under the tortfeasor’s policy. In fact, this Court has held that “an insurer of
a motor vehicle under a Florida no-fault policy [is not required to] pay
personal injury protection benefits to a passenger in an uninsured motor
vehicle which collides with the insured vehicle, when that passenger neither
owns nor operates a motor vehicle and does not reside with anyone who
does so own or operate a motor vehicle.” South Carolina Ins. Co. v.
Rodriguez, 366 So. 2d 168, 169 (Fla. 3d DCA 1979).
On this record, there are disputed factual issues regarding coverage
which preclude entry of judgment as a matter of law. Accordingly, we
reverse the entry of final summary judgment and vacate the denial of Geico’s
motion to amend the answer and affirmative defenses. See RV-7 Prop., 187
So. 3d at 916–17 (“Amendments to pleadings ought to be allowed freely
unless there is a clear danger of prejudice, abuse, or futility. If such dangers
cannot be clearly established, the trial court abuses its discretion by denying
the party’s motion for leave to amend the pleading.” (citations omitted)).
Reversed and remanded.
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