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  • Miami Auto Max, Inc. Plaintiff vs. Antwani J. Mise Gordon, et al Defendant Contract and Indebtedness document preview
  • Miami Auto Max, Inc. Plaintiff vs. Antwani J. Mise Gordon, et al Defendant Contract and Indebtedness document preview
  • Miami Auto Max, Inc. Plaintiff vs. Antwani J. Mise Gordon, et al Defendant Contract and Indebtedness document preview
  • Miami Auto Max, Inc. Plaintiff vs. Antwani J. Mise Gordon, et al Defendant Contract and Indebtedness document preview
						
                                

Preview

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 SEMI-ANNUALIZED PREMIUMS COVERAGES same Lin hig usWinatvehices. feces lvers Ty PROPERTY DAMAGE, $ 10,000 /Accident 255 | 198 PERSONAL INJURY PROTECTION DED INS & RESIDENT RELATIVES $10,000/Person sien ee -treaL ae Te 749 | 688 MEDICAL PAYMENTS $ NONE_/Individual n/a | N/A COLLISION ACV 1$_ 500 2$ 500 38 4$ 466 | 285 OTHER THAN COLLISION ACV 1$ 500 28 500 38 4$ 110 | 69 MGA POLICY FEE:|$ 25 [SETUPFEE:|§ 10 | SR22FEE: | s o [TOW:| so|FHCFFEE:| 36. 99| PoLicyToTaL: |$ 2891.99 IREASON FOR DECLARATION: EFFECTIVE DATE | PRISRFACTOR PREVIOUS AMO PREM NEW BUSINESS 05/31/2014 0.000 0.00 SEMI-ANNUAL PREM NEW AMD PREMIUM = |_ 2891.99 2891.99 “ls PERT 15 THE TOTAL PREMIUM To BE PAD FOR sH0mT [ADJUSTED FOR ALE PWEUWAL AUENDENTS THAN CURE MT BANE SURCHARGES Veh 1 Veh 2 PD TOTAL POINTS / TOTAL POINTS SURCHARGE o/ 0% / 0% / fo PIP TOTAL POINTS / TOTAL POINTS SURCHARGE, o/ 0% o/ O% It / COMPICOLL POINTS / TOTAL POINTS SURCHARGE o/ 0% / O% / / ,DISCOUNTS|_MuLTI CAR RENEWAL __| SAFE DRIVER ABS SRS_|THEFT|HOMEOWNERS| SAPG VEHICLE# | Liab Phys | Liab Phys | Liab Phys | Liab Phys | Liab | Phys | Liab Phys | Liab Phys 1 10% | 10% = = 10% | 10% 5% 5% 15% | 10% a 7 = 7 2 10% | 10% | - =| 10% | 10% | ~- -_ | 158 | - - = - = FORMS 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. A. 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) i 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: 1, 2. 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. a 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) BE 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. 2 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