AMICA MUTUAL INSURANCE COMPANY, APPELLANT,
v.
MELVIN CHERWIN, APPELLEE

Fla. 4th DCA | 1996-05-08
No. 95-0772
STONE and PARIENTE, JJ., concur.
673 So. 2d 112 Florida District Court of Appeal, Fourth District (1996) Positive Treatment
Cited by 5 cases

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Holding

A plaintiff does not need to have physical contact with a motor vehicle to recover personal injury protection (PIP) benefits under section 627.736(4)(d)4, Florida Statutes, if the vehicle's actions are the proximate cause of the injury.


Headnotes

[1] Recovery under Florida's personal injury protection statute does not require actual physical contact between the injured party and the motor vehicle.

[2] Causation, employing traditional tort concepts, is the necessary link to establish coverage under the statute, not necessarily direct physical contact.

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Facts & Procedural History

Melvin Cherwin was injured while avoiding an errant vehicle. His PIP carrier, Arnica Mutual Insurance Company, denied his claim, asserting physical co…

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Opinion of the Court
POLEN, Judge.

POLEN, Judge.

Arnica Mutual Insurance Company (Arnica) appeals the final judgment in favor of the plaintiff, Melvin Cherwin, on his claim for personal injury protection (PIP) benefits. We affirm.

On February 14, 1994, Melvin Cherwin, while a pedestrian, was approached by an errant vehicle. In an effort to avoid being struck by the automobile, he dove out of the way and sustained injuries as a result of his evasive actions.

Mr. Cherwin filed a Petition for Declaratory Relief and Damages against his personal injury protection carrier, Amica. Mr. Cher-win’s claim was based on the injuries he suffered as a result of diving out of the path of the automobile. Arnica denied the claim, maintaining that physical contact with the automobile is required under section 627.736(4)(d)4, Florida Statutes. The trial court disagreed with Arnica’s position, entering summary judgment, followed by final judgment for Mr. Cherwin.

The Florida statute at issue is section 627.736(4)(d)4, which provides:

4. Accidental bodily injury sustained in this state by any other person while occupying the owner’s motor vehicle or, if a resident of this state, while not an occupant of a self-propelled vehicle, if the injury is caused by physical contact with such motor vehicle, provided the injured person is not himself:
a. The owner of a motor vehicle with respect to which security is required under ss. 627.730-627.7405; or b. Entitled to personal injury benefits from the insurer of the owner or owners of such a motor vehicle.

The issue on appeal is whether a plaintiff must have physical contact with a motor vehicle to recover on a claim under this statute. We hold the statute does not make such a requirement.1

In reaching this conclusion, we follow the supreme court’s decision in Lumbermens Mutual Casualty Co. v. Castagna, 368 So. 2d 348 (Fla.1979). In Lumbermens, the court determined that the inclusion of the phrase “caused by physical contact with a motor vehicle” plainly and unambiguously intended the traditional tort concepts of causation to be considered part of the statute. Id. at 349. The court additionally stated that no actual physical contact must occur, but the elements of causation concerning a motor vehicle must be present.

Other eases have also held that physical contact with the offending car is not required. Although not involving a PIP claim, in Royal Indemnity Co. v. GEICO, 307 So. 2d 458 (Fla. 3d DCA 1975), the court found contact with the offending car was not required under the statute. In Royal, the offending car struck a parked car which in turn struck the plaintiff. The court found the errant vehicle was the proximate cause of the plaintiffs injuries and the driver’s insurance was therefore liable under the statute. Id. at 461.

Additionally, the second district found liability under the statute where no contact with an automobile occurred. In Arnold v. South Carolina Insurance Co., 425 So. 2d 1164 (Fla. 2d DCA 1983), the appellant was crossing the street with a coworker, when two vehicles traveling nearby collided. When one motor vehicle appeared about to hit the appellant, his coworker pushed him out of the way. The appellant was knocked to the pavement and suffered injuries as a result of his coworker’s efforts. The appellant sued the driver of the errant vehicle under section 627.736(4)(d)l. The second district found that actual contact between the pedestrian and the offending vehicle is not determinative for coverage. Id. at 1165 (citing Royal Indemnity, supra). Using causa tion analysis, the court found physical contact between the two colliding cars caused the plaintiffs injuries. The driver of the errant vehicle was therefore liable under the statute.

We recognize that the offending automobile never touched Mr. Cherwin. Arnica argues that such contact is required under the statute. Such a requirement, however, would place form over substance and go against the express language of the supreme court. The Lumbermens court stated:

The language of the legislature which expressly states that the insured’s injuries be “caused by physical contact with a motor vehicle,” requires, in our view, an inquiry regarding cause which employs the traditional tort concepts of causation. Consequently, in the instant case it must be determined whether the plaintiffs injuries were “caused by physical contact” with the Chevrolet “motor vehicle.” Actual physical contact between the vehicles is not a prerequisite to recovery under the statute. The mere involvement of a “motor vehicle,” however, is not enough. Causation is the necessary link that connects plaintiffs injuries to the physical contact and brings them within the statute.

Lumbermens, at 350.

In the facts presented to the court, it is clear the errant vehicle is the proximate cause of Mr. Cherwin’s injuries. Using traditional tort language, it can be said that “but for” the errant automobile, Mr. Cherwin would not have been injured. The vehicle’s actions provide the necessary link that connects Mr. Cherwin’s injuries to recovery under the statute.

To mandate a requirement of actual physical contact under these facts would lead to an absurd result. As the third district noted in Lowd v. Kovens Construction, 546 So. 2d 1087 (Fla. 3d DCA 1989),

To say that the plaintiff-pedestrian herein cannot seek to recover for his alleged damages unless he remained in thé path of the defendants’ oncoming vehicle, thereby being physically hit by the vehicle itself, would be ludicrous. The sound policy reasons of promoting the concept of mitigation of damages, the saving of lives, and compensating innocent individuals for their injuries, dictate that a plaintiff under the circumstances of this case should be entitled to seek to recover compensation for his injuries.

We adopt this reasoning. Reading the statute to require physical contact under these circumstances would lead to the punishment of the prudent plaintiff who mitigates his injuries by escaping harm’s way. The sound 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.


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Cited By

  • Niglio v. Omaha Prop. & Cas. Ins. Co., 679 So. 2d 323 (Fla. 4th DCA 1996)
    …th a motor vehicle.” Recently, this court followed Castagna and held that a pedestrian who dove out of the way to avoid being struck by an automobile was entitled to PIP coverage under section 627.736(4)(d)1. Arnica Mutual Insurance Co. v. Cherwin, 673 So. 2d 112 (Fla. 4th DCA 1996). In cases applying the Castagna causation analysis to injuries not caused by direct contact with a motor vehicle, the unifying principle is that coverage exists when a ear is the most substantial factor in bringing about the vict…
  • …f $250.00). See § 627.736(10)(d), Fla. Stat. (2018). If the insurer denies or fails to pay PIP benefits within the time allotted under the demand letter, the insured may file suit to recover those benefits. See Amica Mut. Ins. Co. v. Cherwin, 673 So. 2d 112, 113 (Fla. 4th DCA 1996) (allowing insured’s lawsuit after the insurer improperly denied PIP benefits); Gov’t Emps. Ins. Co. v. Gonzalez, 512 So. 2d 269, 270 (Fla. 3d DCA 1987) (same). If the insured or assignee prevails in this action, thus sig…
  • Milgram v. Allstate Ins. Co., 731 So. 2d 134 (Fla. 1st DCA 1999)
    …at PIP coverage existed when someone pushed the plaintiff to the pavement to prevent his injury from a car that was out of control as a result of a traffic accident); rev. denied 437 So. 2d 677 (Fla.1983); Arnica Mutual Insurance Company v. Cherwin, 673 So. 2d 112 (Fla. 4th DCA 1996) (holding that a plaintiff could recover when he was injured when he dove out of the way of an errant vehicle); Doyle v. Faford, 517 So. 2d 778 (Fla. 5th DCA 1988) (holding plaintiff could recover when motor vehicle struck mobile…

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