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Filing # 39181736 E-Filed 03/18/2016 10:09:41 AM
IN THE COUNTY COURT OF THE SIXTH
JUDICIAL CIRCUIT INAND FOR
PINELLAS COUNTY, FLORIDA SMALL
CLAIMS
CASE NO.: 15-011058-SC (South)
TOWER IMAGING, INC., AS ASSIGNEE
OF LAWRENCE POLLIN,
Plaintiff,
v.
AUTO-OWNERS INSURANCE
COMPANY,
Defendant.
AUTO-OWNERS INSURANCE COMPANY’S MOTION FOR FULL AND FINAL
SUMMARY JUDGMENT AND INCORPORATED MEMORANDUM OF LAW
COMES NOW, AUTO-OWNERS INSURANCE COMPANY, by and through its
undersigned counsel and pursuant to Florida Rule of Civil 1.510(c), hereby files its
Motion for Summary Judgment against the Plaintiff, TOWER IMAGING, INC., AS
ASSIGNEE OF LAWRENCE POLLIN, and in support thereof states as follows:
INTRODUCTION
1. On or about December 29 2015, Plaintiff, TOWER IMAGING, INC., AS
ASSIGNEE OF LAWRENCE POLLIN, filed the above-styled matter against AUTO-
OWNERS INSURANCE COMPANY seeking to recover Personal Injury Protection
benefits under a policy of insurance issued to Lawrence Pollin.
COLE, SCOTT & KISSANE, P.A.
4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAX
***ELECTRONICALLY FILED 03/18/2016 10:09:40 AM: KEN BURKE, CLERK OF THE CIRCUIT COURT. PINELLAS COUNTY***15-011058-SC (South)
2. Plaintiff's Complaint alleges that, Auto-Owners Insurance Company issued
a policy of insurance which provided Person Injury Protection Coverage and/or Medical
Payments Coverage to insured, LAWRENCE POLLIN. (Complaint [ 3).
3. Despite the foregoing allegations, AUTO-OWNERS INSURANCE
COMPANY does not have a policy of insurance with the insured alleged in Plaintiff's
Complaint (Lawrence Pollin), and neither did the purported assignor of benefits have a
policy of insurance with AUTO-OWNERS INSURANCE COMPANY on the date of loss
alleged in Plaintiffs Complaint.
4. Rather, it was OWNERS INSURANCE COMPANY which issued a policy
of insurance to Lawrence Pollin, the named insured, under which the subject claim has
been submitted, which was in full force and effect on the date of the motor vehicle
accident described in the Complaint and which provided for Personal Injury Protection
benefits subject to the terms and conditions of the policy itself, all amendatory
endorsements thereto and all governing statutes and applicable case law. A copy of the
Policy will be attached to the Affidavit of Jillian Nickle which will be filed with the Court.
5. Therefore, there is no basis upon which Plaintiff may assert the instant
cause of action against OWNERS INSURANCE COMPANY.
MEMORANDUM OF LAW
A. Standard of Review for Summary Judgment
Under Florida law, “summary judgment is proper if there is no genuine issue of
material fact and if the moving party is entitled to judgment as a matter of law.” Volusia
County v. Aberdeen at Ormond Beach, 760 So. 2d 126 (Fla. 2000). “A material fact is
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COLE, SCOTT & KISSANE, P.A.
4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAX15-011058-SC (South)
one essential to the result that is placed in controversy by the pleadings and affidavits.”
Wells v. Wilkerson, 391 So. 2d 266, 267 (Fla. 4th DCA 1980). A motion for summary
judgment is to be granted when “the pleadings, depositions, answers to interrogatories
and admissions on file together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Zabrani v. Riveron, 495 So. 2d 1195, 1199 (Fla. 3d DCA 1986); Fla. R.
Civ. Pro. Rule 1.510(c).
On motions for summary judgment the moving party must prove “the
nonexistence of a material fact” Galloway v. Law Offices of Merkle, Bright & Sullivan,
P.A., 596 So. 2d 1205, 1206 (Fla. 4th DCA 1992). When the moving party shows that
no material fact on any issue is disputed, the burden shifts to the non-moving party to
demonstrate that a material fact is in dispute. People Gas System v. Acme Gas Corp.,
689 So. 2d 292 (Fla. 3d DCA 1997). If the party opposing summary judgment cannot
show the existence of a genuine issue of material fact, then the moving party should be
entitled to judgment as a matter of law. Martin County v. Edenfield, 609 So. 2d 27
(Fla.1992).
PLAINTIFF KNEW OR SHOULD HAVE KNOWN THAT FILING OF THIS LAWSUIT
WAS NOT SUPPORTED BY MATERIAL FACTS NECESSARY TO ESTABLISH THE
CLAIM AND WOULD NOT BE SUPPORTED BY THE APPLICATION OF EXISTING
LAW TO THE MATERIAL FACTS
The Defendant did not insure the assignor and OWNERS INSURANCE COMPANY
was the entity that issued the insurance policy at issue in this lawsuit. OWNERS
INSURANCE COMPANY is a separate and distinct legal entity from AUTO-OWNERS
Page 3
COLE, SCOTT & KISSANE, P.A.
4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAX15-011058-SC (South)
INSURANCE COMPANY. Plaintiff failed to sue the proper party and instead, filed suit
against AUTO-OWNERS INSURANCE COMPANY.
Defendant placed Plaintiff on notice that it did not insure Lawrence Pollin when it
served its Answer on January 21, 2016. Plaintiff, and Plaintiffs counsel, knew or should
have known, that its action was not supported by the material facts necessary to
establish its claim. Ricky Lockett, D.O., P.A. D/B/A Orthopedic Injury Management on
behalf of Dorthy Martin v. Progressive Consumers Insurance Company, 11 Fla. L.
Weekly Supp. 567b (Fla. 6th Jud. Cir., Pinellas Cty., March 29, 2004); see also Central
Florida Rehab Center, Inc. a/a/o Daphney Buisereth v. Allstate Insurance Company, 16
Fla. L. Weekly Supp. 956b (9th Jud. Cir., Orange County, July 29, 2009). Summary
Judgment is appropriate where the Court finds that “Plaintiff and Plaintiffs attorney
knew or should have known that the claim was initially presented to the Court and ...
was not supported by the material facts necessary to establish the claims; and was not
supported by the application of existing law to those material facts.” Central Florida
Rehab Center, Inc. a/a/o Daphney Buisereth v. Allstate Insurance Company, 16 Fla. L.
Weekly Supp. 956b (9th Jud. Cir., Orange County, July 29, 2009).
Defendant never insured assignor, Lawrence Pollin, and Plaintiff sued the wrong
insurance company. Plaintiff has improperly initiated and maintained its suit against
AUTO-OWNERS INSURANCE COMPANY.
No genuine issue of material fact exists as to whether AUTO OWNERS
INSURANCE COMPANY owes any benefits to Plaintiff since OWNERS INSURANCE
COMPANY was the entity that issued the insurance policy at issue in this lawsuit.
Page 4
COLE, SCOTT & KISSANE, P.A.
4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAX15-011058-SC (South)
Complete Wellness Chiropractic & Rehabilitation, a/a/o Amanda Lemmons v. USAA
Casualty Insurance Company, 23 Fla. L. Weekly Supp. 149a (1st Jud. Cir., Okaloosa
County, June 15, 2015).
At all material times, LAWRENCE POLLIN was covered by or otherwise entitled
to receive benefits from other Personal Injury Protection insurance carrier and policy
[Owners Insurance Company — Policy # 49-677-886-00]. See Ricky Lockett, D.O., P.A.
D/B/A Orthopedic Injury Management_on_ behalf of Dorthy Martin v. Progressive
Consumers Insurance Company, 11 Fla. L. Weekly Supp. 239a (6th Jud. Cir., Pinellas
Cty., December 29, 2003). As a result, the Plaintiff is not entitled to recover under the
insurance policies sued upon in the Plaintiffs Complaint. Therefore, Summary
Judgment in favor of Defendant should be granted. See Central Florida Rehab Center.
Inc. a/a/o Daphney Buisereth v. Allstate Insurance Company, 16 Fla. L. Weekly Supp.
956b.
WHEREFORE, AUTO-OWNERS INSURANCE COMPANY, respectfully requests
this Honorable Court grant its Motion for Full and Final Summary Judgment and any
other relief this Court deems reasonable, just, and proper under the circumstances.
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that on this 18th day of March, 2016, a true and correct
copy of the foregoing was filed with the Clerk of Pinellas County by using the Florida
Courts e-Filing Portal, which will send an automatic e-mail message to the following
parties registered with the e-Filing Portal system: C. Spencer Petty, Esq., Irvin & Petty,
Page 5
COLE, SCOTT & KISSANE, P.A.
4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAX15-011058-SC (South)
P.A., therese@irvinandpetty.com, 111 2nd Avenue Northeast, Suite 630, St Petersburg,
FL 33701, (727) 350-7770/(727) 350-7771 (F), Attorney for Plaintiff, Tower Imaging,
Inc..
COLE, SCOTT & KISSANE, P.A.
Counsel for Defendant AUTO-OWNERS
INSURANCE COMPANY
4301 West Boy Scout Boulevard
Suite 400
Tampa, Florida 33607
Telephone (813) 864-9335
Facsimile (813) 286-2900
Primary e-mail: edwin.valen@csklegal.com
Secondary e-mail: amy.recla@csklegal.com
Alternate e-mail: laura.campbell@csklegal.com
By: _s/ Amy K. Recla
EDWIN V. VALEN
Florida Bar No.: 20331
AMY K. RECLA
Florida Bar No.: 102811
0487.0712-00/2239264
Page 6
COLE, SCOTT & KISSANE, P.A.
4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAX
Preview
Filing # 39181736 E-Filed 03/18/2016 10:09:41 AM IN THE COUNTY COURT OF THE SIXTH JUDICIAL CIRCUIT INAND FOR PINELLAS COUNTY, FLORIDA SMALL CLAIMS CASE NO.: 15-011058-SC (South) TOWER IMAGING, INC., AS ASSIGNEE OF LAWRENCE POLLIN, Plaintiff, v. AUTO-OWNERS INSURANCE COMPANY, Defendant. AUTO-OWNERS INSURANCE COMPANY’S MOTION FOR FULL AND FINAL SUMMARY JUDGMENT AND INCORPORATED MEMORANDUM OF LAW COMES NOW, AUTO-OWNERS INSURANCE COMPANY, by and through its undersigned counsel and pursuant to Florida Rule of Civil 1.510(c), hereby files its Motion for Summary Judgment against the Plaintiff, TOWER IMAGING, INC., AS ASSIGNEE OF LAWRENCE POLLIN, and in support thereof states as follows: INTRODUCTION 1. On or about December 29 2015, Plaintiff, TOWER IMAGING, INC., AS ASSIGNEE OF LAWRENCE POLLIN, filed the above-styled matter against AUTO- OWNERS INSURANCE COMPANY seeking to recover Personal Injury Protection benefits under a policy of insurance issued to Lawrence Pollin. COLE, SCOTT & KISSANE, P.A. 4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAX ***ELECTRONICALLY FILED 03/18/2016 10:09:40 AM: KEN BURKE, CLERK OF THE CIRCUIT COURT. PINELLAS COUNTY***15-011058-SC (South) 2. Plaintiff's Complaint alleges that, Auto-Owners Insurance Company issued a policy of insurance which provided Person Injury Protection Coverage and/or Medical Payments Coverage to insured, LAWRENCE POLLIN. (Complaint [ 3). 3. Despite the foregoing allegations, AUTO-OWNERS INSURANCE COMPANY does not have a policy of insurance with the insured alleged in Plaintiff's Complaint (Lawrence Pollin), and neither did the purported assignor of benefits have a policy of insurance with AUTO-OWNERS INSURANCE COMPANY on the date of loss alleged in Plaintiffs Complaint. 4. Rather, it was OWNERS INSURANCE COMPANY which issued a policy of insurance to Lawrence Pollin, the named insured, under which the subject claim has been submitted, which was in full force and effect on the date of the motor vehicle accident described in the Complaint and which provided for Personal Injury Protection benefits subject to the terms and conditions of the policy itself, all amendatory endorsements thereto and all governing statutes and applicable case law. A copy of the Policy will be attached to the Affidavit of Jillian Nickle which will be filed with the Court. 5. Therefore, there is no basis upon which Plaintiff may assert the instant cause of action against OWNERS INSURANCE COMPANY. MEMORANDUM OF LAW A. Standard of Review for Summary Judgment Under Florida law, “summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law.” Volusia County v. Aberdeen at Ormond Beach, 760 So. 2d 126 (Fla. 2000). “A material fact is Page 2 COLE, SCOTT & KISSANE, P.A. 4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAX15-011058-SC (South) one essential to the result that is placed in controversy by the pleadings and affidavits.” Wells v. Wilkerson, 391 So. 2d 266, 267 (Fla. 4th DCA 1980). A motion for summary judgment is to be granted when “the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Zabrani v. Riveron, 495 So. 2d 1195, 1199 (Fla. 3d DCA 1986); Fla. R. Civ. Pro. Rule 1.510(c). On motions for summary judgment the moving party must prove “the nonexistence of a material fact” Galloway v. Law Offices of Merkle, Bright & Sullivan, P.A., 596 So. 2d 1205, 1206 (Fla. 4th DCA 1992). When the moving party shows that no material fact on any issue is disputed, the burden shifts to the non-moving party to demonstrate that a material fact is in dispute. People Gas System v. Acme Gas Corp., 689 So. 2d 292 (Fla. 3d DCA 1997). If the party opposing summary judgment cannot show the existence of a genuine issue of material fact, then the moving party should be entitled to judgment as a matter of law. Martin County v. Edenfield, 609 So. 2d 27 (Fla.1992). PLAINTIFF KNEW OR SHOULD HAVE KNOWN THAT FILING OF THIS LAWSUIT WAS NOT SUPPORTED BY MATERIAL FACTS NECESSARY TO ESTABLISH THE CLAIM AND WOULD NOT BE SUPPORTED BY THE APPLICATION OF EXISTING LAW TO THE MATERIAL FACTS The Defendant did not insure the assignor and OWNERS INSURANCE COMPANY was the entity that issued the insurance policy at issue in this lawsuit. OWNERS INSURANCE COMPANY is a separate and distinct legal entity from AUTO-OWNERS Page 3 COLE, SCOTT & KISSANE, P.A. 4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAX15-011058-SC (South) INSURANCE COMPANY. Plaintiff failed to sue the proper party and instead, filed suit against AUTO-OWNERS INSURANCE COMPANY. Defendant placed Plaintiff on notice that it did not insure Lawrence Pollin when it served its Answer on January 21, 2016. Plaintiff, and Plaintiffs counsel, knew or should have known, that its action was not supported by the material facts necessary to establish its claim. Ricky Lockett, D.O., P.A. D/B/A Orthopedic Injury Management on behalf of Dorthy Martin v. Progressive Consumers Insurance Company, 11 Fla. L. Weekly Supp. 567b (Fla. 6th Jud. Cir., Pinellas Cty., March 29, 2004); see also Central Florida Rehab Center, Inc. a/a/o Daphney Buisereth v. Allstate Insurance Company, 16 Fla. L. Weekly Supp. 956b (9th Jud. Cir., Orange County, July 29, 2009). Summary Judgment is appropriate where the Court finds that “Plaintiff and Plaintiffs attorney knew or should have known that the claim was initially presented to the Court and ... was not supported by the material facts necessary to establish the claims; and was not supported by the application of existing law to those material facts.” Central Florida Rehab Center, Inc. a/a/o Daphney Buisereth v. Allstate Insurance Company, 16 Fla. L. Weekly Supp. 956b (9th Jud. Cir., Orange County, July 29, 2009). Defendant never insured assignor, Lawrence Pollin, and Plaintiff sued the wrong insurance company. Plaintiff has improperly initiated and maintained its suit against AUTO-OWNERS INSURANCE COMPANY. No genuine issue of material fact exists as to whether AUTO OWNERS INSURANCE COMPANY owes any benefits to Plaintiff since OWNERS INSURANCE COMPANY was the entity that issued the insurance policy at issue in this lawsuit. Page 4 COLE, SCOTT & KISSANE, P.A. 4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAX15-011058-SC (South) Complete Wellness Chiropractic & Rehabilitation, a/a/o Amanda Lemmons v. USAA Casualty Insurance Company, 23 Fla. L. Weekly Supp. 149a (1st Jud. Cir., Okaloosa County, June 15, 2015). At all material times, LAWRENCE POLLIN was covered by or otherwise entitled to receive benefits from other Personal Injury Protection insurance carrier and policy [Owners Insurance Company — Policy # 49-677-886-00]. See Ricky Lockett, D.O., P.A. D/B/A Orthopedic Injury Management_on_ behalf of Dorthy Martin v. Progressive Consumers Insurance Company, 11 Fla. L. Weekly Supp. 239a (6th Jud. Cir., Pinellas Cty., December 29, 2003). As a result, the Plaintiff is not entitled to recover under the insurance policies sued upon in the Plaintiffs Complaint. Therefore, Summary Judgment in favor of Defendant should be granted. See Central Florida Rehab Center. Inc. a/a/o Daphney Buisereth v. Allstate Insurance Company, 16 Fla. L. Weekly Supp. 956b. WHEREFORE, AUTO-OWNERS INSURANCE COMPANY, respectfully requests this Honorable Court grant its Motion for Full and Final Summary Judgment and any other relief this Court deems reasonable, just, and proper under the circumstances. CERTIFICATE OF SERVICE | HEREBY CERTIFY that on this 18th day of March, 2016, a true and correct copy of the foregoing was filed with the Clerk of Pinellas County by using the Florida Courts e-Filing Portal, which will send an automatic e-mail message to the following parties registered with the e-Filing Portal system: C. Spencer Petty, Esq., Irvin & Petty, Page 5 COLE, SCOTT & KISSANE, P.A. 4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAX15-011058-SC (South) P.A., therese@irvinandpetty.com, 111 2nd Avenue Northeast, Suite 630, St Petersburg, FL 33701, (727) 350-7770/(727) 350-7771 (F), Attorney for Plaintiff, Tower Imaging, Inc.. COLE, SCOTT & KISSANE, P.A. Counsel for Defendant AUTO-OWNERS INSURANCE COMPANY 4301 West Boy Scout Boulevard Suite 400 Tampa, Florida 33607 Telephone (813) 864-9335 Facsimile (813) 286-2900 Primary e-mail: edwin.valen@csklegal.com Secondary e-mail: amy.recla@csklegal.com Alternate e-mail: laura.campbell@csklegal.com By: _s/ Amy K. Recla EDWIN V. VALEN Florida Bar No.: 20331 AMY K. RECLA Florida Bar No.: 102811 0487.0712-00/2239264 Page 6 COLE, SCOTT & KISSANE, P.A. 4301 WEST BOY SCOUT BOULEVARD - SUITE 400 - TAMPA, FLORIDA 33607 - (813) 289-9300 - (813) 286-2900 FAX