Motion for Summary Judgment in Miami Auto Max, Inc. Plaintiff vs. Antwani J. Mise Gordon, et al Defendant| Trellis.Law

On December 03, 2015 a Motion,Ex Parte was filed involving a dispute between Miami Auto Max, Inc., and Gordon, Antwani J. Mise, Ocean Harbor Cas Ins Co, Watkins-Gordon, Yolanda Nicole, for Contract and Indebtedness in the District Court of Broward County.

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Filing # 55367729 E-Filed 04/20/2017 02:31:18 PM

IN THE CIRCUIT COURT IN AND FOR
BROWARD COUNTY, FLORIDA

CIVIL DIVISION
CASE NO.: 2015 CA 021373 (08)
MIAMI AUTO MAX, INC.,
D/B/A CAR DEPOT OF MIRAMAR,
Plaintiff,
vs.
ANTWANI J. MISE GORDON,
YOLANDA NICOLE WATKINS-GORDON, and
OCEAN HARBOR CASUALTY INSURANCE
COMPANY

Defendants.
/

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

COMES NOW, the Defendant, OCEAN HARBOR CASUALTY INSURANCE COMPANY,
by and through its undersigned counsel, pursuant to Florida Rule of Civil Procedure 1.510, files
this, its Motion for Summary Judgment Regarding No Coverage, and in support thereof states
as follows:

The instant lawsuit arose out of a motor vehicle accident which occurred between
September 19, 2014 and December 16, 2014.’ The motor vehicle sustained damage related to
the accident. A claim for property damages benefits was submitted to the Defendant under
claim WME Defendant denied the claim because the policy issued to YOLANDA
WATKINS GORDON was cancelled for non-payment of premium effective July 31, 2014. As a
result, no property damage benefits are due and owing and the Defendant is entitled to
judgment as a matter of law.

UNDISPUTED FACTS

' See paragraph 13 of Plaintiff's Complaint, “Somewhere between September 19, 2014 and December 16, 2014, the
Subject Vehicle was involved in an incident, (the “Incident”), whereby the Subject Vehicle suffered significant
damages. It is unknown whether the Incident was a motor vehicle accident as there was no report filed for the
Incident and Miami Auto was not aware of it until it regained possession of the Subject Vehicle.”

Our File # 15-1008

*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 4/20/2017 2:31:18 PM.****4. On June 16, 2014 OCEAN HARBOR CASUALTY INSURANCE COMPANY
(hereinafter referred to as OCEAN HARBOR) issued a New Business Declaration to YOLANDA
WATKINS GORDON for policy number EEE for policy period May 31, 2014 through
November 30, 2015. See New Business Declarations Page for policy ZEEE. attached
as Exhibit “A” and Insurance Policy attached as Exhibit “B.”

2. On July 8, 2014, the Defendant sent YOLANDA WATKINS GORDON a NOTICE
OF CANCELLATION via U.S. Mail advising YOLANDA WATKINS GORDON that unless a
premium payment was postmarked by the cancellation date that the policy would be cancelled.
The cancellation effective date and time was 12:01 AM on July 31, 2014. See Notice of
Cancellation attached as Exhibit “C” and Underwriter Affidavit attached as Exhibit “D.”

3. Said Notice of Cancellation was sent ten (10) days prior to the cancellation date

in accordance with the policy of insurance and Fla. Stat. § 627.4133.

4. YOLANDA WATKINS GORDON failed to make payment and as a result thereof,
policy ZN was cancelled effective 12:01 AM on July 31, 2014. See Underwriter
Affidavit attached as Exhibit “D’.

5. On August 11, 2014 OCEAN HARBOR sent YOLANDA WATKINS GORDON a
CANCELLATION DECLARATIONS advising him that his policy had been cancelled effective July
31, 2014 for non-payment of premium. See Cancellation Declarations attached as Exhibit “E”
and Underwriter Affidavit attached as Exhibit “D.”

6. Between September 19, 2014 and December 16, 2014, the Motor Vehicle that is
the subject of this action was involved in an automobile accident. The claim was submitted to
OCEAN HARBOR under claim S2501F63-01.

7. OCEAN HARBOR denied payment as the policy had been previously cancelled

for non-payment of premium.

Our File # 15-10088. As a result, there is no issue of material fact that there is no coverage afforded to
Plaintiff under a policy of insurance with the Defendant on the date of the motor vehicle
accident.

MEMORANDUM OF LAW

Summary judgment may be granted only if there is no genuine issue of material fact and
if the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510. Movant's
affidavits and other evidence must establish the absence of genuine issues of material fact. Holl
v. Talcott, 191 So. 2d 40, 43 (Fla. 1966). The moving party must meet the burden of overcoming
all reasonable inference that may be drawn in favor of the opposing party. Harvey Building, Inc.
v. Haley, Fla., 175 So. 2d 780 (Fla. 1965). Only after a conclusive showing that the party moved
against cannot offer proof to support the position on genuine and material issues may the right
to trial be foreclosed. Hall, 191 So. 2d at 47.

Insurance contracts are construed according to their plain meaning, with any ambiguities
construed against the insurer and in favor of coverage. US Fire Ins. Co. v. J.S.U.B, Inc., 979
So. 2d 871, 877 (Fla. 2007) citing Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d
528, 532 (Fla. 2005). Here, the plain meaning of the policy of insurance issued to YOLANDA
WATKINS GORDON shows that the policy was cancelled by the insurer for nonpayment of
premium. The policy states:

TERMINATION

A. Cancellation

2. How “we” may cancel

a. Except as provided under Cancellation

Due to Incorrect Premium, “we” may

cancel this policy by mailing or

delivering written notice of cancellation

to the “named insured” shown in the

Declarations at the address shown in

this policy:

i. Mailed at least (10) days

before the cancellation
effective date if cancellation is

Our File # 15-1008for nonpayment of premium;
or

ii. Mailed at least forty-five (45)
days before the cancellation
effective date if the
cancellation is for any other
reason.

iii. Mailing this notice by
registered, certified mail or
United State Post Office proof
of mailing shall be sufficient
proof of notice.

(emphasis added)
See Ocean Harbor Policy p.22 attached as Exhibit “B”
Fla. Stat. § 627.4133, provides that:
“An insurer issuing a policy providing coverage for property, casualty, ... shall give the
first-named insured written notice of cancellation or termination other than nonrenewal at

least 45 days prior to the effective date of the cancellation or termination, including in the
written notice the reason or reasons for the cancellation or termination, except that:

1. When cancellation is for nonpayment of premium, at least 10 days’ written
notice of cancellation accompanied by the reason therefore shall be given.”
(emphasis added).

Florida law unambiguously supports the position that coverage shall not be afforded where
the policy has been cancelled for non-payment of premium. An insured's failure to pay when
a premium notice is sent, results in a lapse in which no further coverage will be afforded.
Williams v. Security Mutual Casualty Co., 377 So. 2d 733 (Fla 3d DCA 1980); See also WA
Realty v. Employee Benefit Claims, Inc., 488 So. 2d 121 (Fla. 3d DCA 1986) [An insurer is
usually under no obligation to provide coverage when a premium is not paid]; See also Cynthia
Green v. United Automobile Ins. Co., 16 Fla. L. Weekly Supp. 753a (Fla. Dade Cty. Ct. 2009)
(Summary Judgment awarded to Defendant where the insured had notice of additional premium
due on her PIP policy, was afforded an opportunity to pay the premium but failed to do so, which
resulted in policy cancellation prior to the date of loss).

In the instant case, the insured, YOLANDA WATKINS GORDON was required to pay the

Our File # 15-1008premium that was due and owing on his policy at the agreed upon rate. YOLANDA WATKINS
GORDON was duly noticed of his obligation to pay, failed to make payment by July 31, 2014,
and as a result thereof, policy MN =was cancelled due to the nonpayment of
premium effective July 31, 2014 at 12:01 AM.

WHEREFORE, OCEAN HARBOR CASUALTY INSURANCE COMPANY, respectfully
requests that this Court enter Summary Judgment as to all issues in this matter, contending that
there are no genuine issues of material fact that would entitle Plaintiff to relief and for any additional
relief deemed just and proper.

CERTIFICATE OF SERVICE

| CERTIFY that a copy hereof has been furnished this 20th day of April, 2017, to: Alan
K. Marcus, Esquire, MARCUS LAW CENTER, LLC, via designated e-mail service:
amarcus@marcuslawcenter.com

LAWRENCE D. POPRITKIN, P.A.
Staff Counsel for Defendant
11575 Heron Bay Blvd., Suite 102
Coral Springs, Florida 33076
(954) 791-7240 Telephone

(954) 791-7331 Facsimile

Designated E-Mail Address:
Filings@Idplaw.net

BY:/s/ August Mangeney
August W. Mangeney, Esq.
Florida Bar No. 96045

Our File # 15-1008Exhibit “A.”OCEAN HARBOR CASUALTY INS. CO HACE Or?
P.O. BOX 451119

Sunrise, FL 33345-1119
www, PearlHolding.com

Date of Issue: 06/16/14

POLICY NUMBER NEW BUSINESS PRODUCER CODE

DECLARATIONS 7105

For a copy of the policy terms and conditions please go to www.PearlHalding.com and click on “Policy Terms & Conditions".

4. NAMED INSURED AND MAILING ADDRESS 2, PRODUCER

YOLANDA N WATKINS GORDON ADMIRAL INSURANCE, INC.

18811 NW 39 CT 17340 NW 27 AVE

MIAMI GARDENS, FL. 33055 MIAMI GARDENS FL 33056

(305)610-1883 (305)621-2939

The owned automabile(s) will be principally garaged in the town designated in item 1, unless otherwise stated herein: (Car No. Location)

Effective Dat
POLICY PERIOD: FROM: 05/31/2014 10: 11/30/2014 12:01AMSTANDARD TIME __of fransaction: 05/31/2014
3. DESCRIPTION OF INSURED VEHICLES RATING CLASSIFICATION
MODEL class _|
VEH |_ YEAR, MAKE / MODEL IDENTIFICATION NUMBER, PHY. | LIAB | AGE /SYM_| TERR
1 | 2007 MERCEDES BENZ C280 4MATIC AWD WDBRF92H97F875158 15/15 6/21 14G
2 | 2007 TOYOTA COROLLA CE/S/LE ITDBR32EX70109732 27 | 27 6/14 14G

THIS POLICY DOES NOT PROVIDE AUTO BODILY INJURY LIABILITY INSURANCE OR ANY OTHER COVERAGE FOR WHICH A SPECIFIC SEMI-ANNUALIZED PREMIUM CHARGE IS
NOT MADE AND DOES NOT COMPLY WITH ANY FINANCIAL RESPONSIBILITY LAW. YOU HAVE THOSE COVERAGES FOR WHICH A SEMI-ANNUALIZED PREMIUM CHARGE IS SHOWN

OHC 001 (2013/02), OHC 001A (2013/02), OHC 004 (01/13)

PREMIUM FINANCE COMPANY: COUNTER’

TURE:

fo Ge

‘OHC 002 (1/08) Insured Copy Lienholder information on Reverse SideExhibit “B.”OCEAN HARBOR CASUALTY
INSURANCE COMPANY

LIMITED PERSONAL AUTO POLICY

Read your Policy carefully. This Policy does not satisfy all Financial
Responsibility Laws.
This is a restricted Policy.

This Policy limits payment and reimbursement under the PIP Coverage
as allowable by Florida Statute.

These policy terms and conditions with the declaration page and

endorsements, if any, issued to form a part thereof,
complete this policy.

OHC 001 (2013/10) FLORIDAOCEAN HARBOR CASUALTY INSURANCE COMPANY
LIMITED PERSONAL AUTO POLICY

TABLE OF CONTENTS

ITEM

AGREEMEN

DEFINITIONS.

PART I: COVERAGE FOR “BODILY INJURY” AND “PROPERTY DAMAGE” LIABILITY
INSURING AGREEMENT.
DEFINITIONS ..
SUPPLEMENTARY PAYMENTS. .
POLICY PERIOD AND TERRITORY
EXCLUSIONS........
LIMIT OF LIABILITY.......
FINANCIAL RESPONSIBILITY
NON-DUPLICATION......
OTHER INSURANCE........
NON-JOINDER OF INSURE]
LEGAL ACTION AGAINST “US”
NOTICE.
SUBMIT A PROOF OF LOSS WHEN REQUIRED BY “US”.........

ADUANADARRLYWY

PART I: UNINSURED MOTORISTS COVERAGE ..
DEFINITIONS... 7

INSURING AGREEMENT.
LIMIT OF LIABILITY.
EXCLUSIONS...
OTHER INSURANCE.
NON-DUPLICATION.
ARBITRATION...

ec II AAD

PART III: COVERAGE FOR PERSONAL INJURY PROTECTION
INSURING AGREEMENTS.
DEFINITIONS ..
COVERAGE
EXCLUSIONS ..
PAYMENT OF ANY AMOUNT DUE
PRIORITY OF PAYMENT......
NO DUPLICATION OF BENEFIT:
LIMIT OF LIABILITY,

DISPUTES ...

OHC 001 (2013/10) FLORIDAPART IV: COVERAGE FOR DAMAGE TO “YOUR COVERED AUTO”
INSURING AGREEMENT...
TRANSPORTATION...
EXCLUSIONG.........
LIMIT OF LIABILITY
PAYMENT OF LOSS...
NO BENEFIT TO BAILEE..
OTHER INSURANCE.
APPRAISAL ..... 7
LEGAL ACTION AGAINST “US” ....

NOTICE...
SUBMIT A PROOF OF LOSS WHEN REQUIRED BY “

PART V: DUTIES AFTER AN ACCIDENT OR LOSS.
NOTICE OF ACCIDENT OR LOSS .
NOTICE OF CLAIM OR SUIT.
DUTY TO COOPERATE WITH “US”.
ADDITIONAL DUTIES AND CONDITIONS.

PART VI: GENERAL PROVISIONS
CHANGES ......---.0

COOPERATION ANI D “ASSISTANCE.
MISREPRESENTATION AND FRAUD
LEGAL ACTION AGAINST “US”
NON-JOINDER OF INSURER.......
LEGAL ACTION AGAINST “US”
NOTICE........--
“OUR” RIGHTS TO RECOVER PAYMEN’
“OUR” RIGHT TO RECOMPUTE PREMIUM
POLICY PERIOD AND TERRITORY .
TERMINATION...
OTHER TERMINATION PROVISIONS .
TRANSFER OF “YOUR” INTEREST IN THIS POLICY
TWO OR MORE AUTO POLICIES
BANKRUPTCY.........0
MEDIATION OF CLAIMS
CONFORMITY WITH LAW..
APPLICATION AND DECLARATIONS...
INQUIRIES...

OHC 001 (2013/10) FLORIDAIn return for the payment of all premiums and subject to the terms of this policy, "we"

OCEAN HARBOR CASUALTY INSURANCE COMPANY

PERSONAL AUTO POLICY

AGREEMENT

agree with "you" as follows:

All correspondence shall be mailed to "you" at the address stated on the policy application unless "you" notify "us" in writing by
certified mail of a change of address. All claims correspondence to "us" must be mailed to P.O. Box 451119, Sunrise, Florida
33345.

COMMON DEFINITIONS

‘The following definitions apply to all sections, parts, provisions
and addendum of this policy.

Words and phrases are defined. They are in quotation
marks when used.

Throughout this policy “You” and “Your” means the
“named insured”, defined as:

1. The person or entity shown in the Declarations
of this policy as the “named insured”; and, if an
individual

2, The spouse if a resident of the same household
and who usually makes his or her home in the
same family unit, whether or not temporarily
living elsewhere, provided the spouse is listed by
“you” on the policy application or endorsed
thereto within thirty (30) days of becoming such.

“You” and “Your” does not include a “Health Care
Provider”, with the exception of (1.) or (2.) above by way
of occupation.

“We”, “us” and “our” refer to Ocean Harbor Casualty
Insurance Company.

For the purposes of this policy, any person leasing a private
passenger “motor vehicle" which is leased:

1. Under a written agreement to that person; and

2. For a continuous period of at least six months.
Shall be considered the "owner" of said leased "motor
vehicle".

“Owner” means a person or entity that holds the legal title
to a “motor vehicle”, and also includes:

1. A debtor having the right to possession, in the
event a “motor vehicle”, is the subject of a
security agreement:

2. A lessee having the right to possession, in event
a “motor vehicle” is the subject of a lease with
option to purchase; and such lease agreement is
for a period of six months or more; and

OHC 001A (2013/10)

3. A lessee having the right to possession, in the
event a “motor vehicle” is the subject of a lease
without option to purchase; and that:

a. Such lease agreement is for a period of
six months or more; and

b. The lease agreement provides that the
lessee shall be responsible for providing
any required insurance, including, but
not limited to personal injury protection
and Property Damage Liability.

"Business" includes trade, profession or occupation.

“Resident Relative” and “Family Member” means a
person related to “you” by blood, marriage or adoption
who is usually a resident of “your” household and who
usually makes his or her home in the same family unit,

whether or not temporarily living elsewhere. This
includes a ward or a lawfully placed foster child,
. “Insured” means
1. “You” or any “resident relative” for the

ownership, maintenance or use of any “motor
vehicle” or “trailer”, provided that all such
individuals who are age 15 years or older are
listed on the policy application; or

2. Any person using “your covered auto” with
express or implied permission to do so, provided
that, if the individual is a regular operator of
your covered auto, that individual is listed on the
policy application.

3. Any person who, during the term of this policy
becomes a “resident relative” or another regular
operator of your covered auto and is endorsed
onto the policy within thirty (30) days of
becoming such.

"Trailer" means any vehicle without motor power, other

than a pole "trailer", designed for carrying persons or
property and for being drawn by a “motor vehicle.”

FLORIDA.“Your covered auto” means:

1.
2.

Any “motor vehicle”, shown in the Declarations.
Any private passenger “replacement motor
vehicle” which replaces any motor vehicle
shown in the Declarations of which “you”
become the “owner” during the policy period.

If the private passenger “replacement motor
vehicle” “you” acquire replaces a motor vehicle
shown in the Declarations, it will have the same
liability and personal injury protection coverage
as the “motor vehicle” it replaced.

“Replacement motor vehicle” means a private
passenger motor vehicle purchased by or leased
to “you” to replace a “motor vehicle” shown in
the Declarations.

Except as it pertains to Comprehensive and
Collision coverage, which is set forth in Part V
of this Policy, this policy will only provide
coverage for the “replacement motor vehicle” if
“you”:

a. Notify “us” in writing within 30 days
after its delivery to “you” or “your
spouse”; and;

b. Pay “us” any added amount or premium
due.

As to Comprehensive and Collision coverage as
set forth in Part V of this policy, this policy will
only provide Comprehensive and Collision
coverage for the “replacement motor vehicle” if
“you":

a. Notify “us”, in writing within 72 hours
after its delivery to “you” or “your
spouse”, However, no Comprehensive
or Collision coverage will be provided
unless “you” notify “us” in writing prior
to any accident or loss for which “you”
are seeking Comprehensive or Collision
coverage and have the vehicle inspected
and photographed if requested to do so

by us; and
b. Pay “us” any added amount or premium
due.

Any private passenger “motor vehicle” which is
acquired in addition to the “motor vehicle(s)”
shown in the Declarations of which “you”
become the “owner” during the policy period
provided that “you” are not the “owner” of any
other “motor vehicles” which are uninsured, self-
insured or insured with another insurer and:

a, “You” ask “us” in writing to insure it
within thirty days after “you” become
the “owner” of said “motor vehicle” or
take possession of said vehicle,
whichever occurs first; and

b. No other insurance policy provides
coverage for that motor vehicle.

OHC 001A (2013/10)

If the private passenger “motor vehicle”
“you” acquire is in addition to any
shown in the Declarations it will have
the broadest coverage “we” now
provide for any vehicle shown in the
Declarations, except as to
Comprehensive and Collision coverage.
Any “trailer” of which “you” are the “owner”
while being towed by “your covered auto”,
provided that it is not used for any “business”,
professional or occupational purposes.
Any private passenger “motor vehicle” or
“trailer” of which “you” are not the “owner”
while being used as a “temporary substitute
vehicle” for “your covered auto.”

J. "Temporary substitute" means a private passenger “motor
vehicle” or "trailer" which is used only while "your covered
auto" or "trailer" is out of normal use because of its:

1
2.
3.
4.
5.

Breakdown;
Repair;
Servicing;
Loss; or
Destruction,

K. “Motor vehicle” meanis any self-propelled vehicle with four
or more wheels, which is of a type both designed and
required to be licensed for use on the highways of Florida
and any “trailer” or semi-trailer designed for use with such
vehicle. A “motor vehicle” does not include:

2.
3.

Any vehicle which is used in mass transit other
than public school transportation and designed to
transport more than 5 passengers exclusive of the
operator of the vehicle and which is owned by a
municipality, a transit authority, or by a political
subdivision of the state; or

A mobile home; or

A motorcycle or any other vehicle with less than
four wheels; or

Any vehicle while it is drag racing or engaged in
any organized speed, stunt or demolition event or
contest.

L. "Occupying" means in, upon, entering into, or alighting

from.

M. “Bodily injury” means "bodily injury" to a person, including
sickness, disease or death resulting therefrom.

N. "Property damage" means damage or destruction of tangible
property, including loss of use.

“Medically necessary" refers to a medical service or

supply that a prudent physician would provide for the
purpose of preventing, diagnosing, or treating an illness,
injury, disease, or symptom in a manner that is:

In accordance with generally accepted standards
of medical practice;

Clinically appropriate in terms of
frequency, extent, site, and duration; and

type,

FLORIDA.3. Not primarily for the convenience of the patient,
physician, or other health care provider.

P. “Health Care Provider” means any person ot entity
providing any medical care, treatment, diagnostic testing,
supplies, products, services or accommodations.

Q. “Policy” means a written contract of insurance or written
agreement for or effecting insurance, or the certificate
thereof, and includes all clauses, riders, endorsements,
and papers which are a part thereof.

R. “Premium” means the consideration paid or to be paid to
an insurer for the issuance and delivery of any binder or
policy of insurance.

S. “Renewal” or “to renew” means the issuance and delivery
by an insurer of a policy superseding at the end of the
policy period a policy previously issued and delivered by
the same insurer, or the issuance and delivery of a
certificate or notice extending the term of a policy beyond
its policy period or term,

T. “Limit of Liability” is the limit shown on the declarations
page for that coverage.

U. “Spouse” means “your” husband or wife who resides with
“you” and who usually makes his or her home in the same
family unit, whether or not temporarily living elsewhere.

V. Throughout the Policy, “Organization” is replaced by
“Entity”.

PART I: COVERAGE FOR "BODILY INJURY"
AND "PROPERTY DAMAGE" LIABILITY

INSURING AGREEMENT

"We will pay damages for "bodily injury" or “property damage"
for which any "covered person" becomes legally liable as a result
of an auto accident. "We" will settle or defend, as "we" consider
appropriate, any claim or suit against the "covered person"
asking for these damages. In addition to our limit of liability, we
will pay all defense costs we incur. "Our" duty to settle or
defend ends when "our" limit of liability for this coverage has
been exhausted. "We" have no duty to defend any suit or settle
any claim for "bodily injury" or "property damage" not covered
under this policy,

DEFINITIONS
“Covered person' as used in this part means:
A. "You" or any "resident relative", for the ownership,

maintenance or use of any “motor vehicle” or "trailer",
except for any “motor vehicle” or "trailer";

OHC 001A (2013/10)

1. Of which "you" or any "resident relative" are the
“owner" which is not defined as "your covered
auto" under this policy; or

2. Fumished or available for "your" or any “resident
relative's" regular use which is not defined as
"your covered auto" under this policy; or

3. Rented or leased by "you" or any "resident
relative" which is not being used as a "temporary
substitute" for "your covered auto" except for a
“trailer”;

B. Any person using "your covered auto" with "your" express
or implied permission, and used within the scope of that
permission;

C. For “your covered auto", any person or organization, but
only with respect to legal responsibility for acts or
omissions of a person for whom coverage is afforded under
this part;

D. For any private passenger “motor vehicle” or "trailer", other
than "your covered auto", any person or organization, but
only with respect to legal responsibility for acts or
omissions of "you" for whom coverage is afforded under
this part, This provision applies only if the person or
organization does not own, rent, lease nor hire the private
passenger “motor vehicle” or "trailer";

E. “Covered Person” is not a “Health Care Provider.”

Except while operating, maintaining or using a motorcycle.

SUPPLEMENTARY PAYMENTS

In addition to "our" limit of liability, "we" will pay on behalf of a
"covered person":

A. Up to $250 for the cost of the bail bonds required because of
an auto accident, including related traffic law violations,
resulting in "bodily injury" or "property damage" covered
under this policy.

B, Premiums on appeal bonds and bonds to release attachments
in any suit against the "covered person” that "we" defend.

Interest accruing after a judgment is entered in any suit
against the "covered person" that "we" defend. "Our" duty
to pay interest ends when "we" offer to pay that part of the
judgment, which does not exceed "our" limit of liability for
this coverage.

D. Up to $50 per day for loss of earings, but not other income,
because of attendance at hearings or trials at "our" request,

E. Other reasonable expenses incurred at "our" request.

FLORIDAPOLICY PERIOD AND TERRITORY
Policy Period

‘A. The policy coverages “you” chose apply only to accidents
and losses which occur:
1. During the policy period as shown in the
Declarations; and
2. Within the “policy territory”.

Policy Territory

B. Other than for personal injury protection (No-Fault)

coverage, the “policy territory” is:

1, The United States of America, its territories and

possessions; and

2. Canada.
This policy will also apply to loss to, or accidents
involving, “your covered auto”, while it is being
transported between their ports.

C. The “policy territory” for the Personal Injury Protection
(No-Fault) coverage “you” chose applies:
1, In Florida; and
2. Outside Florida, but within the United States of
America or its territories or possessions or
Canada, but only to “you” while occupying
“your covered auto” and a “resident relative”
while occupying “your covered auto” who is not
himself or herself the owner of a motor vehicle
with respect to which security is required under
Florida Statutes.

However, the limit of liability shown in the Declarations is the
maximum limit of liability “we” will pay, regardless of the
location of the loss.

EXCLUSIONS

"We" do not provide "bodily injury" or "property damage"
liability coverage:

A. For any person who intentionally causes "bodily injury" or
“property damage".

B. For any person for damage to property owned or being
transported by that person.

C. For any "covered person" for damage to property rented to,
used by, or in the care of that person. This exclusion does
not apply to damage to a residence or private garage. It also
does not apply to damage to any of the following type
vehicles not owned by or furnished or available for the
regular use of "you" or any "resident relative":

1. Private passenger “motor vehicles"; or
2. "Trailers".

D. For any person while employed or otherwise engaged in
the “business” or occupation of selling, repairing,

OHC 001A (2013/10)

servicing, storing or parking of “motor vehicles” designed
for use mainly on public highways, including road testing
and delivery.

For any person maintaining or using any “motor vehicle”
while that person is employed or otherwise engaged in
any “business” or occupation (other than farming and
ranching) not described in Exclusion D.

For the ownership, maintenance or use of any “motor
vehicle” which:

1. Has less than four wheels;

2. Is not required to be licensed for use on public

roads; or

3. Weighs in excess of 10,000 pounds.
This exclusion does not apply to any “trailer” of which
"you" are the "owner".

For the ownership, maintenance, or use of any “motor
vehicle”, other than the ownership or use of “your
covered auto”, which is owned by “you” or a “resident
relative” or furnished or available for “your” or any
“resident relative’s” regular use.

For any person while "your covered auto” is being used:
1. For the purpose of any prearranged or organized
racing, demolition or speed contest, exhibition,
or preparation therefore;
2. In any illegal activity (other than a traffic
violation) in which "you" or a "resident relative"
are a willing participant or give willful consent.

For any person using "your covered auto" without express
or implied permission to do so.

For any person for “bodily injury" or "property damage" for
which that person is an "insured" under a "nuclear energy
liability policy" or would be an “insured” but not for its
termination upon exhaustion of its limits of liability. A
“nuclear energy liability policy" is a policy issued by
Nuclear Energy Liability Insurance Association, Mutual
Atomic Energy Liability Underwriters, Nuclear Insurance
Association of Canada, or any of their successors.

For "bodily injury" or "property damage" sustained by the
“named insured" or any "resident relative".

For any person's liability arising out of the ownership or
operation of a “motor vehicle” while it is being used to carry
persons or property for a fee. This exclusion does not apply
to a share-the-expense car pool.

For any “motor vehicle” while it is being used for or in the
course of "your" employment or occupation, unless:
1. "You" have told “us" in writing the car is for
“business" use;
2. "We" have accepted "your covered auto" based on
these conditions; and
3. "You" have paid the premium for "business" use.

FLORIDAN. For any “motor vehicle”, nor operator of such “motor
vehicle”, rented by "you" or any "resident relative"; unless it
is being used as a "temporary substitute" for "your covered
auto”.

O. For "bodily injury” or "property damage" arising out of any
person's liability for the ownership, maintenance or
operation of "your covered auto" when:

1. It is being rented or leased to others;

2. It has been sold to another; or

3. It is under a conditional sales agreement by
"you" to another.

P. For "bodily injury" or "property damage" arising out of any
liability assumed under any contract or leasing agreement
unless that liability arises out of negligence or such liability
would have existed without the contract.

Q. For “bodily injury" or "property damage" arising out of the
ownership, maintenance, or use of any vehicle while it is
being used as a residence or premises,

R. For any damages which are specifically described as
vicarious, punitive or exemplary.

S. For any person for "bodily injury" to an employee or fellow
employee of that person during the course of:
1. Employment; or
2, Performing the duties related to the conduct of
that person's "business"; or
3. The spouse, child, parent, brother or sister of that
person as a consequence of 1 or 2 above.
This exclusion does not apply to "bodily injury" to a
domestic employee not entitled to Workers' Compensation
benefits or to liability assumed by the "named insured"
under an "insured" contract.

LIMIT OF LIABILITY

The limit of liability shown in the Declarations for each person
for "bodily injury" liability is “our" maximum limit of liability
for all damages for "bodily injury" sustained by any one person
in any one auto accident. This includes all derivative claims
arising out of said “bodily injury" which includes, but is not
limited to: damages for care; loss of service or death; loss of
consortium; loss of society or companionship. Subject to this
limit for each person, the limit of liability shown in the
Declarations for each accident for "bodily injury" liability is
"our" maximum limit of liability for all damages for "bodily
injury" resulting from any one auto accident.

The limit of liability shown in the Declarations for each auto
accident for "property damage" liability is "our" maximum limit
of liability for all damages to all property resulting from any one
auto accident regardless of the location of the loss.

This is the most "we" will pay regardless of the number of
“covered persons", claims made, vehicles or premiums shown in
the Declarations, or vehicles involved in the auto accident.

OHC 001A (2013/10)

The limits of liability are not increased because more than one
person or “entity” may be a “covered person”; and

A motor vehicle and attached vehicle are one vehicle,
therefore the maximum limits of liability are subject to the
limits of any one vehicle.

FINANCIAL RESPONSIBILITY

When "we" certify this policy as proof under the Florida
financial responsibility law, it will comply with the law to the
extent of the coverage required under all Florida Statutes as
provided in Chapter 324.

NON-DUPLICATION

We will not pay any claims for damages and expenses under
Liability coverage, Part 1, that have already been paid, could
be paid, or could have been paid under any Personal Injury
Protection Coverage or medical payments coverage of any
policy.

OTHER INSURANCE

If there is other applicable liability insurance, the total limits
of liability shall not exceed those of the policy with the highest
limits of liability. “We” will pay only “our” share of the
damages. “Our” share is the proportion that “our” limit of
liability bears to the total of all other applicable limits of
liability. However, any insurance “we” provide for a vehicle
of which “you” are not the “owner” shall be excess over any
other collectible insurance.

NON-JOINDER OF INSURER

No person, who is not an "insured" under the terms of this policy
shall have any interest in this policy, either as a third party
beneficiary or otherwise, prior to first obtaining a verdict against
a person who is an "insured" under the terms of this policy for a
cause of action which is covered by this policy.

LEGAL ACTION AGAINST “US”

No legal action may be brought against "us" until there has been
full compliance with all the terms of this policy nor until thirty
days after the required notice of auto accident and reasonable
proof of claim has been filed with "us". Reasonable proof shall
include, but not be limited to, a fully completed accident report
and police report. In addition, under this section of the policy,
no legal action may be brought against "us" until "we" agree, in
writing, that the "covered person" has an obligation to pay or
until the amount of that obligation has been finally determined
by verdict after trial, No person or organization has any right
under this policy to bring "us" into any action to determine the

FLORIDAliability of a "covered person" until after the rendition of a
verdict.

NOTICE

In the event of an accident, written notice of the loss must be
given to “us" or any of "our" authorized agents as soon as
practicable.

SUBMIT A PROOF OF LOSS WHEN REQUIRED BY
"us"

‘As soon as practicable, the person making the claim shall give to
"us" written proof of claim, under oath if required, which may
include information as may assist "us" in determining the
amount due and payable,

‘A person seeking any coverage under this section of the policy
must cooperate with us" in the investigation, settlement or
defense of any claim or suit, including submitting to an
examination under oath by any person named by us" when or as
often as "we" may reasonably require at a place designated by
"ys" within a reasonable time after "we" are notified of the claim.

Whenever a person making a claim is charged with committing a
felony in connection with the incident giving rise to said claim,
“we" shall withhold benefits until at the trial level, the
prosecution makes a formal entry on the record that it will not
prosecute the case against the person, the charge is dismissed or
the person is acquitted.

PART II: UNINSURED MOTORISTS COVERAGE
(Referred to as UM Coverage)

DEFINITIONS

A. “Covered person” as used in this Part means:

1, “You” or any “family member”;

2. Any other person occupying “your covered
auto”,

3. Any person for damages that person is entitled to
recover because of “bodily injury” to which this
coverage applies sustained by a person described
in 1 or 2 above.

4. The definition of “covered person” does not
include a “Health Care Provider.”

5. The definition of “covered person” does not
include the Government of the United States of
America.

B. “Uninsured Motor Vehicle”.
1, “Uninsured motor vehicle” means a land “motor
vehicle” or “trailer” of any type:
a, To which no liability bond or policy
applies at the time of the accident.
b. To which a liability bond or policy
applies at the time of the accident but its

OHC 001A (2013/10)

limit for bodily injury liability is not
enough to pay the full amount the
“covered person” is legally entitled to
recover as damages.

c. That is a hit-and-run vehicle. This
means a “motor vehicle” whose
“owner” or operator cannot be
identified and that hits or that causes an
accident resulting in “bodily injury”
without hitting:

i. “You” or any — “family

member”;
ii. A vehicle which “you” or any
“family member” are

“occupying”; or

iii, “Your covered auto”.
If there is no physical contact with the
hit-and-run vehicle and no witnesses
other than any person making a claim
under this or any similar coverage: (1.)
The accident must be reported to the
police or law enforcement within 24
hours; AND (2.) “We” must be notified
within 30 days of the accident.

d. To which a liability bond or policy
applies at the time of the accident, but
the bonding or insuring company denies
coverage or is insolvent, or becomes
insolvent within 4 years after the
accident.

2. Uninsured motor vehicle does not include any
vehicle or equipment:

a. Owned by or furnished or available for
the regular use of “you” or any “family
member”; unless, it is “your covered
auto” to which Part I of the policy
applies and liability coverage is
excluded for any person other than
“you or any “family member” for
damages sustained in the accident by
“you” or any “family member”.

b. Operated on rails or crawler treads.

ce. Designed mainly for use off public
roads while not upon public roads.

d. While located for use as a residence or
premises.

INSURING AGREEMENT

A. “We will pay compensatory damages, except punitive or
exemplary damages, which a “covered person” is legally
entitled to recover from the “owner” or operator of an
uninsured “motor vehicle” because of “bodily injury”:

1. Sustained by a “covered person”; and
2. Caused by an auto accident; and
3. Caused by the negligence of an “owner” and/or
operator of an “uninsured motor vehicle” arising
out of the ownership or operation of that vehicle.
However, this coverage docs not apply and “we” will not
pay damages for pain, suffering, mental anguish, or

FLORIDA.inconvenience unless the “bodily injury” consists in
whole or in part of:

a. Significant and permanent loss of an
important bodily function;

b. Permanent injury within a reasonable
degree of medical probability, other
than scarring or disfigurement;

ce. Significant and permanent scarring or
disfigurement; or

d. Death.

B, Any judgment for damages arising out of a suit brought
without “our” written consent is not binding on “us’

LIMIT OF LIABILITY

A. Accidents involving “bodily injury” to “you” or any

“family member”.

1. For “bodily injury” sustained by “you” or any

“family member” in any one accident, “our”

maximum limit of liability for all resulting
damages, including, but not limited to:

a, All direct;

b. All derivative; or

c. All consequential;

Damages recoverable by any “covered person”,
is the sum of the limits of liability per individual
shown in the Declarations for UM Coverage.

2. Subject to the maximum limit of liability per
individual set forth above in A. 1., “our”
maximum limit of liability for all damages for
“bodily injury” resulting from any one accident
is the sum of the limits of liability shown in the
Declarations per accident for UM Coverage.

3. Subject to the maximum limits of liability per
individual and per accident set forth in the A. 1.
and A, 2. above, for “bodily injury” sustained in
any one accident by “you” or any “family
member”, “our” maximum limit of liability for
all resulting damages, including, but not limited
to, all direct, derivative, or consequential
damages recoverable by “you” or any “family
member” is the lesser of:

a. The sum of the limits of liability per
individual shown in the Declarations
applicable to all vehicles on the policy;
or

b. That “covered person’s” pro-rata share
of the sum of the limits of liability per
accident applicable to all vehicles
involved.

“You” or any “family member” who sustains “bodily
injury” in the accident will also be entitled to a pro-rata
share of the sum of the limits of liability per accident, for
those vehicles to which UM Coverage applies, as shown
in the Declarations, A person’s pro-rata share shall be the
proportion that that person’s damages bears to the total
damages sustained by all “covered persons”.

OHC 001A (2013/10)

B. Accidents involving “bodily injury” to any “covered

person” other than “you” or any “family member”.

1. For “bodily injury” sustained by any “covered
person” other than “you” or any “family
member” in any one accident, “our” maximum
limit of liability for all resulting damages,
including, but not limited to:

a. Alldirect;

b. All derivative; or

c. All consequential;
Damages recoverable by any “covered person”,
is the sum of the limits of liability per individual
shown in the Declarations for UM Coverage.

2. Subject to the maximum limits of liability per
individual set forth above in B. 1., “our”
maximum limit for all damages for “BODILY
INJURY” resulting from any one accident is the
sum of the limits of liability shown in the
Declarations per accident for UM Coverage.

C. The limits of liability described in Paragraphs A. and B.

above are the most “we” will pay regardless of the
number of:
1, “Covered persons”;
2, Claims made;
3. Vehicles or premiums shown in the Declarations;
or
4, Vehicles involved in the accident.

Any amount otherwise payable for damages under UM
Coverage shall be reduced by all sums payable because of
the “bodily injury” under any:

1. Workers’ compensation law;

2. Disability benefits law or similar law;

3. No-Fault/PIP Coverage;

4, Automobile medical expense coverage or similar

coverage;
5, Or motor vehicle liability insurance.

E. Any amount otherwise payable for damages under UM

shall be reduced by all sums paid because of the “bodily
injury” by or on behalf of persons or organizations that
may be legally responsible. This includes all sums
payable under Part I.

EXCLUSIONS

“We” do not provide UM Coverage for “bodily injury”
sustained by any “covered person”:

1. If that person or legal representative settles the
“bodily injury” claim without “our” written
consent. However, this exclusion (A. 1.) does
not apply:

a. If such settlement does not prejudice
“our” right to recover payment; or

b. If that person or legal representative
provides “us” with advance notice of
any proposed settlement as required by
Part VI. G. — Additional Duties for any

FLORIDA“covered person” seeking Uninsured
Motorist Coverage.

2. While “occupying” “your covered auto” when it
is being used to carry persons for a fee. This
exclusion (A. 2.) does not apply to a share-the-
expense car pool.

3. While using a vehicle without expressed or
implied permission.

4. While “your covered auto” is rented or leased to
others.

5. While “occupying” any vehicle when it is being
operated in, or in practice for, any driving
contest or challenge.

B. UM coverage shall not apply directly or indirectly to
benefit any insurer or self-insurer under any of the
following or similar law:

1. Worker’s compensation law; or
2. Disability benefits law.

C. “We” do not provide UM Coverage for punitive or
exemplary damages.

OTHER INSURANCE

If there is other applicable similar insurance “we” will pay
only “our” share of the loss. “Our” share is the proportion that
“our” limit of liability bears to the total of all applicable limits.
However, any insurance “we” provide with respect to a
vehicle “you” or a “family member” do not own, shall be
excess over any other collectible insurance.

NON-DUPLICATION

No “covered person” will be entitled to receive duplicate
payments under this coverage for the same elements of loss
which were:

A. Paid because of the “bodily injury” by or on behalf of
persons or organizations that may be legally responsible.

B. Paid or payable under any workers’ compensation law or
similar disability benefits law.

C. Paid under another provision or coverage in this policy

D. Paid under any No-Fault/PIP Coverage, paid under any
automobile medical expense coverage or paid under any
other similar coverage.

ARBITRATION

A. If “we” and a “covered person” disagree as to:

1, Whether the “covered person” is legally entitled
to recover damages from the “owner” or operator
of an uninsured motor vehicle or an underinsured
motor vehicle; or

OHC 001A (2013/10)

2. The amount of damages that the “covered
person” is legally entitled to collect from that
“owner”;

Then, that disagreement may be arbitrated, provided both
parties so agree. This arbitration shall be limited to the
two aforementioned factual issues and shall not address
any other issues. Any arbitration finding that goes
beyond the two aforementioned factual issues shall be
voidable by “us” or a “covered person”.

B. If both parties agree to arbitration, each party will select
an arbitrator, and those two arbitrators will select a third.
If the two arbitrators cannot agree on a third within thirty
(30) days, either may request that selection be made by a
judge of a court having jurisdiction. Each party will pay
the expenses it incurs and bear the expenses of the third
arbitrator equally.

Unless both parties agree otherwise, arbitration will take
place in the county in which the covered person lived at
the time of the accident, and local rules of law as to
procedure and evidence will apply. A decision agreed to
by two of the arbitrators will be binding up to the
coverage limit of liability.

PART III: COVERAGE FOR PERSONAL INJURY
PROTECTION

INSURING AGREEMENTS:
DEFINITIONS:

‘A. “Motor Vehicle” in this Part III means any self-propelled
vehicle with four (4) or more wheels, which is of a type
both designed and required to be licensed for use on the
highways of Florida and any trailer or semi-trailer
designed for use with such vehicle.

A “Motor Vehicle” does not include:

1. Any “motor vehicle”, which is used in mass
transit, other than public school transportation,
that is:

a. designed to transport more than five (5)
passengers, exclusive of the operator of
the vehicle; and

b. owned by a municipality, a transit
authority, or by a political subdivision
of the State; or

2. A mobile home,

B. An “Insured motor vehicle” means a “motor vehicle”
listed on the policy for which a premium is being charged
and with respect to which security is required to be
maintained under Florida Motor Vehicle Law and any
trailer or semi-trailer designed for use with such vehicle.

C. “Florida Motor Vehicle No-Fault Law” means the Florida
Motor Vehicle No-Fault Law and any amendments.

FLORIDA“Pedestrian” means a person while not an occupant of any
self-propelled vehicle.

“Medical Expenses” means all expenses for medically

necessary:
1. Medical;
2. Surgical;
3. X-ray;

4. Dental; and
5. Rehabilitative services;
Including:
a, Prosthetic devices; and
b. Medically necessary ambulance,
hospital, and nursing services;
Resulting from an automobile accident. Such benefits
shall also include necessary remedial treatment and
services recognized and permitted under the laws of the
state for an injured person.

"Replacement services expenses" means, with respect to
the period of disability to the injured person, all expenses
reasonably incurred in obtaining ordinary and necessary
services from others, that the injured person would have
performed without income for the benefit of his
household, had he not been injured.

“Disability benefits” means gross income lost and loss of
earning capacity per individual from inability to work
proximately caused by the injury sustained by the injured
person, as a result of an automobile accident. It includes
all expenses reasonably incurred in obtaining ordinary
and necessary services from others, that the injured
person would have performed without income for the
benefit of his or her household, had he not been injured.

“Death Benefit” means such benefits payable to:
1. The executor or administrator of the deceased;
2. Any of the deceased’s relatives by blood, legal
adoption or connection by marriage; or
3. Any person appearing to “us” to be equitably
entitled thereto;
When the proximate cause of death was an automobile
accident.

“Emergency medical condition” means a medical
condition manifesting itself by acute symptoms

Case Info

Judge

Haimes, David A. Track Judge’s New Case

Case No.

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Document Filed Date

April 20, 2017

Case Filing Date

December 03, 2015

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Motion,Ex Parte: Miami Auto Max, Inc. Plaintiff vs. Antwani J. Mise Gordon, et al Defendant

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