EUGENE SMITH, JR., APPELLANT,
v.
FORTUNE INSURANCE COMPANY, APPELLEE
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Smith appeals a summary judgment denying personal injury protection (PIP) benefits under his motor vehicle insurance policy. Smith was injured while riding a bicycle and swerving to avoid a truck, but had no physical contact with any motor vehicle. The court affirmed the denial, holding that Florida's PIP statute requires physical contact with a motor vehicle to trigger coverage for non-occupants.
Smith is not entitled to PIP benefits because his injuries do not satisfy the statutory requirement of section 627.736(4)(d)1, which requires that injuries to non-occupants be "caused by physical contact with a motor vehicle." The mere involvement of a motor vehicle as a cause of injury is insufficient; actual physical contact is required.
[1] Personal injury protection benefits for bodily injury sustained while not an occupant of a self-propelled vehicle require that the injury be caused by physical contact wi…
[2] The mere involvement of a motor vehicle as a cause of an insured's injuries is insufficient to trigger personal injury protection benefits when the insured is not occupyi…
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Join FLexlaw to unlock all legal intelligence“accidental bodily injury sustained in this state by the owner while occupying a motor vehicle, or while not an occupant of a self-propelled vehicle if the injury is caused by physical contact with a motor vehicle”
States the controlling statutory requirement for PIP coverage for non-occupants, which is the central issue in the case
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Join FLexlaw to unlock all legal intelligenceSmith was riding a bicycle across a bridge when he attempted to make a left turn at an intersection. To avoid a collision with an oncoming truck that …
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SHARP, Judge.
Smith appeals from a final summary judgment denying him any recovery under his motor vehicle insurance policy for personal injury protection benefits. The insurer, Fortune Insurance Company, denied coverage because Smith’s injuries were not caused by physical contact with a motor vehicle. The lower court ruled that Smith could not recover for his personal injuries, since the record established they were not “caused by physical contact with a motor vehicle” within the meaning of section 627.-736(4)(d)l, Florida Statutes (1985). We affirm.
Section 627.736(1), Florida Statutes (1985) provides that personal injury protection benefits are payable for bodily injury "... arising out of the ownership, maintenance, or use of a motor vehicle ...” However, coverage is further required by subsection (4)(d)l for
[accidental bodily injury sustained in this state by the owner while occupying a motor vehicle, or while not an occupant of a self-propelled vehicle if the injury is caused by physical contact with a motor vehicle. (Emphasis supplied).
Since Smith was riding a bicycle at the time of his accident, subsection (4)(d)l is controlling.
The record established that Smith was injured while riding his bicycle across a bridge when he attempted to make a left turn at an intersection. Taking the facts in the record most favorable to Smith, he was forced to swerve his bicycle to avoid a collision with an oncoming truck that unexpectedly increased its speed and crossed the center line. As a result of his evasive turn, Smith lost control of his bicycle and crashed. He was severely injured. He did not come into physical contact with any motor vehicle, nor was there any collision between any motor vehicles immediately prior to or after Smith’s crash.
In Arnold v. South Carolina Insurance Co., 425 So. 2d 1164 (Fla. 2d DCA), review denied, 437 So. 2d 677 (Fla.1983), our sister court held that the physical contact required by section 627.736(4)(d)l could be between two motor vehicles, which caused an injury to an insured, although the insured himself had no physical contact with either vehicle. We do not need to reach the issue involved in Arnold, however, because Smith’s injuries were not caused by a collision with a motor vehicle. {See, e.g., Lumbermens Mutual Casualty Company v. Castagna, 368 So. 2d 348 (Fla.1979)).1 The mere involvement of a motor vehicle as a cause of an insured’s injuries is not sufficient.
Since there was no motor vehicle collision in this case, and no physical contact between Smith and a motor vehicle, the requirements of the statute were not met. Summary judgment for the insurer was proper. The judgment appealed is
AFFIRMED.
UPCHURCH, C.J., and COBB, J., concur. . Involving 1975 statute with similar wording.
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Niglio v. Omaha Prop. & Cas. Ins. Co., 679 So. 2d 323 (Fla. 4th DCA 1996)…5th DCA 1988)(car struck mobile home containing plaintiff); Royal Indemnity Co. v. Government Employees Ins. Co., 307 So. 2d 458 (Fla. 3d DCA 1975)(motor vehicle struck parked car, causing it to strike pedestrian); contra Smith v. Fortune Ins. Co., 506 So. 2d 73 (Fla. 5th DCA 1987). This view is consistent with Castagna’s “traditional tort concepts of causation,” which include the notion that the tort be a direct, substantial factor in producing injury. See McCain v. Florida Power Corp., 593 So. 2d 500, 502…
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Lowd v. CAL Kovens Constr. Corp. & Bradley Kovens, 546 So. 2d 1087 (Fla. 3d DCA 1989)…Employees Insurance Co., 307 So. 2d 458 (Fla. 3d DCA 1975) (PIP benefits recoverable where moving car hit parked car which pinned plaintiff sitting on bus bench; driver of moving car held proximate cause of plaintiffs injuries). Cf Smith v. Fortune, 506 So. 2d 73 (Fla. 5th DCA 1987) (bicyclist who crashed after swerving to avoid oncoming truck not entitled to PIP benefits under statute because injuries not caused by motor vehicle collision). The impact rule aside, it is clear that the plaintiff has presente…
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AMICA Mut. Ins. Co. v. Cherwin, 673 So. 2d 112 (Fla. 4th DCA 1996)…ound policy reasons discussed in Lowd are equally applicable here and dictate that Mr. Cherwin recover compensation for his injuries. We accordingly affirm. STONE and PARIENTE, JJ., concur. . We certify conflict with Smith v. Fortune Insurance Co. 506 So. 2d 73 (Fla. 5th DCA 1987). Additionally, we would encourage the legislature to reexamine this statute to clarify the intent.…
Authorities Cited
- Lumbermens Mut. Cas. Co. v. Ercole Castagna, 368 So. 2d 348 (Fla. 1979)
- Arnold v. S.C. Ins. Co., 425 So. 2d 1164 (Fla. 2d DCA 1983)