Insurance — Uninsured/underinsured motorist — Coverage — Motorized scooter — There is no UM/UIM coverage for insured who was injured while operating motorized scooter where insured rejected stacked coverage, policies excluded coverage for bodily injury sustained while occupying vehicle owned by insured that was not one of vehicles listed on declarations page or a newly-acquired car, and scooter was not among enumerated vehicles or a newly acquired car

JEFFREY COSGROVE, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Foreign Profit Company, Defendant. Circuit Court, 12th Judicial Circuit in and for Manatee County. Case No. 2023 CA 005432AX. February 27, 2025. Edward Nichols, Judge.

ORDER ON DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT

THIS CAUSE having come on for hearing pursuant to the Defendant’s Motion for Summary Judgment, said motion having been filed on October 14, 2024, and the Court having reviewed and considered said motion, having reviewed and considered, as well, the Plaintiff’s response, entitled Plaintiff’s Response in Opposition to Motion for Summary Judgment, said response having been filed on January 14, 2025, having reviewed and considered the affidavit filed in advance of the hearing, more specifically, the affidavit of Jonathan Owen, having reviewed and considered the deposition transcript of the Plaintiff Jeffrey Cosgrove, having reviewed and considered, of course, the applicable policies, having considered the argument of counsel and the case law provided, and being otherwise fully advised in the premises, finds as follows:Standard of Review

In May of 2021, the Florida Supreme Court revised Florida Rule of Civil Procedure 1.510, saying, in effect, that Florida’s summary judgment standard should be construed and applied in accordance with the Federal summary judgment standard as spelled out in Celotex Corporation v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). The Florida Supreme Court indicated that it agreed with the Supreme Court saying that “[s]ummary judgment is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of [our rules] as a whole.” Celotex, 477 U.S. at 327. The Florida Court explained that “embracing the Celotex trilogy means abandoning certain features of Florida jurisprudence that have unduly hindered the use of summary judgment in our state”. See In re: Amends to Fla. Rule of Civ. Pro. 1.510, 2021 WL 1684095 at 2 (Fla. April 29, 2021) [46 Fla. L. Weekly S95a]. The Court found the Supreme Court’s reasoning compelling, saying, “One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose”. Id. at 323-324.

“Under the amended rule. . . summary judgment is appropriate when ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law’ ”.¹ “Looking to the federal summary judgment standard, an issue of fact is ‘genuine” only if ‘a reasonable jury could return a verdict for the nonmoving party.’ ”² “A fact is ‘material’ if the fact could affect the outcome of the lawsuit under the governing law.”³ “The moving party bears the initial burden of identifying those portions of the record demonstrating the lack of a genuinely disputed issue of material fact.”⁴ “If the movant does so, then the burden shifts to the non-moving party to demonstrate that there are genuine factual disputes that preclude the judgment as a matter of law.”⁵ “To satisfy its burden, the non-moving party ‘must do more than simply show that there is some metaphysical doubt as to the material fact.’ ”⁶ As indicated, “[O]ne of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses” Celotex, supra at 323-324.

Analysis

Applying the above-referenced standard, while certainly recognizing the high burden that attaches to a motion of this nature, and with a clear understanding that summary judgment is not a substitute for the trial of disputed facts, the Court has come to the conclusion that the motorized scooter that Mr. Cosgrove was operating at the time of his injury was not identified as one of the expressly enumerated vehicles pursuant to his policies, and was, in fact, specifically not covered by virtue of the policies’ exclusions. Said another way, there is no coverage here, there are no genuine disputes as to the facts and the motion for summary judgment is well taken and must be granted. As will be explained herein, simply put, Exclusion 2 excludes coverage for the Sanyang 49 cc two wheeled motorized bike that the Plaintiff was riding.

The Plaintiff’s complaint alleges that he was injured by an uninsured or underinsured motorist while riding his Sanyang 49 cc two-wheeled motorized bike on January 26, 2023. He alleges that his State Farm policy provided him with uninsured/underinsured motorist coverage, which was in effect at the time of the accident, in the event that he was injured by an uninsured or underinsured motorist. The complaint indicates that “due to the fact that the Plaintiff, Jeffrey Cosgrove, was not operating a motor vehicle or a vehicle as defined by the Defendant State Farm policy of automobile insurance, he is in a similar position as a pedestrian, a skateboarder or a bicyclist and uninsured/underinsured motorist coverage applies to his unpaid and yet uncompensated for damages” (see complaint)

State Farm argues that it is entitled to judgment as a matter of law because the Plaintiff’s four policies covered four different vehicles, none of which are the motorized scooter that Mr. Cosgrove was riding at the time of the accident, and because the non-stacking provisions in each of the policies excludes the Sanyang scooter he was operating. The Defendant argues that the Sanyang 49cc two-wheeled motorized bike is not a “motor vehicle” as defined by Florida law and is not a “vehicle” or “car” as defined by his policies.

The Plaintiff counters that the Defendant is not entitled to summary judgment on Plaintiff’s UM/UIM coverage because the Sanyang 49 cc two-wheeled motorized bike he was operating on the day of the crash is not a vehicle, a motor vehicle, a car or any other of the descriptions cited to by the Defendant is State Farm’s ‘Exclusion 2′ as a basis for exclusion of coverage” (see response). The Plaintiff argues that “the Defendant’s own policy language and the language of its selection/rejection forms supports granting UM/UIM coverage” (again, see response).

It is undisputed that the motorized scooter that the Plaintiff was operating at the time of the crash was not named as one of the expressly identified vehicles pursuant to his four policies. It is also undisputed that the Plaintiff and his wife rejected non-stacked coverage. The question, then, is whether the exclusion, specifically Exclusion 2, allows for coverage for the injuries the Plaintiff sustained while operating the motorized scooter. The answer to that question, unfortunately for Mr. Cosgrove, is “no”. As will be explained herein, Mr. Cosgrove’s policy excludes uninsured/underinsured coverage for vehicles that are not listed on his policy’s Declaration Page and that are not a “newly acquired car”. The Sanyang scooter is not a “newly acquired car”.

Exclusion 2 of the Plaintiff’s policies state:

THERE IS NO COVERAGE FOR AN INURED WHO SUSTAINS BODILY INJURY: a. WHILE OCCUPYING A VEHICLE OWNED BY YOU IF IT IS NOT YOUR CAR OR A NEWLY ACQUIRED CAR. . .

The policies define “Your car” as one of the specifically enumerated vehicles shown on the Declaration page. The policy also defines “newly acquired car” as a “land motor vehicle with four or more wheels, designed for use primarily on public roads”. Clearly, the motorized scooter is not a “newly acquired car”.

Interestingly, the policy exclusion at issue here is virtually identical to the language addressed in the policy addressed in State Farm Fire and Casualty Insurance Company v. Wilson, found at 330 So. 3d 67 (Fla. 2nd DCA 2021) [46 Fla. L. Weekly D1183a]. The Wilson policy stated:

THERE IS NO COVERAGE: . . . 2. FOR AN INSURED WHO SUSTAINS BOLIDY INJURY: WHILE OCCUPYING A VEHICLE OWNED BY YOU OR ANY RELATIVE IF IT IS NOT YOUR CAR.

Addressing virtually the same policy language, the Second District, in finding that the exclusion barred coverage, found that it was unambiguous, and that the same exclusion had been found to be unambiguous in State Farm Automobile Insurance Company v. Lyde, 267 So. 3d 453 (Fla. 2nd DCA 2018) [43 Fla. L. Weekly D2267e], id. at 76.

As indicated, it is undisputed that Mr. and Mrs. Cosgrove signed the Office of Insurance Regulation form, rejecting non-stacked coverage that excluded coverage for the injuries Mr. Cosgrove sustained while operating the motorized scooter. “The reason the legislature authorized the conclusive presumption only where the insured has signed an OIR approved form is to prevent litigation that has the goal of second-guessing the substantive validity and legal sufficiency of the form’s content”, id. at 76. “The question of whether an OIR-approved form is consistent with the UM statute or with a UM policy is not one for the judiciary”, id. at 77. Like Mr. Wilson, the Cosgroves signed the selection/rejection forms rejecting the stacked form of uninsured motorist coverage and accepting the non-stacking limitations and exclusions. Unfortunately, by rejecting that stacked coverage, Exclusion 2 of his policy specifically excludes the uninsured motorist coverage at the heart of this case.

This Court certainly recognizes that, by entry of this Order, Mr. Cosgrove is unable to seek redress for the damages he sustained on January 26, 2023. As indicated, however, his policy precludes that recovery. This is not a close call.Conclusion

Ultimately, revised, Rule 1.510 indicates that summary judgment may be granted “if the pleadings and summary judgment evidence on file shows that there is no genuine [dispute] as to any material fact and that the moving party is entitled to a judgment as a matter of law”. Fla. R. Civ. P. 1.510(c); In re: Amendments to Fla. Rule of Civil Procedure 1.510, No. SC20-1490, 2020 WL 7778179 at *4, 309 So.3d 192 (Fla. 31, 2020) [46 Fla. L. Weekly S6a] (*amending language to replace “genuine issue” with “genuine dispute”). There are no genuine issues of material fact here and summary judgment is GRANTED.