PASTEUR HEALTH PLAN, INC. v. SALAZAR No. 94-738.
658 So.2d 543 (1995)
PASTEUR HEALTH PLAN, INC., a domestic health maintenance organization, Appellant, v. Miriam SALAZAR, Appellee.
District Court of Appeal of Florida, Third District.
Rehearing Denied August 30, 1995.
Stabinski & Funt, Hicks, Anderson & Blum and Bambi G. Blum, Miami, for appellant.
Floyd Pearson Richman Greer Weil Brumbaugh & Russomanno and Robert J. Fiore, Miami, for appellee.
Michael R. Presley, Chartered, Boca Raton, for Variety Children's Hosp., as amicus curiae.
Before HUBBART, JORGENSON, and GERSTEN, JJ.
This is an appeal by the insurer, Pasteur Health Plan, Inc., of a final summary judgment on liability in favor of the insured subscriber, Miriam Salazar. For the following reasons, we affirm.
The non-final order under review rules against Pasteur on all its affirmative defenses. The order renders the insurer liable to the insured under an HMO medical insurance plan to pay for certain hospital and other medical expenses arising from a traffic accident involving Mrs. Salazar's son, who also was covered under the medical plan.
After Mrs. Salazar's son was admitted to Variety Children's Hospital, Pasteur denied coverage based on the above exclusion and later reasserted the denial as an affirmative defense to a crossclaim filed by Mrs. Salazar in an action brought by Variety against both Salazar and Pasteur.
Although Pasteur's policy does not define "motor vehicle," the trial court found that the term did not include the ATC that was involved in this tragic case. The trial court examined the five sections of the Florida Statutes that define "motor vehicle" and determined, when construed in pari materia, that a three-wheeled vehicle that is not licensed, is not designed to run on the roadways of the State and is not required to carry insurance, is not a motor vehicle under the laws of this State.
The appellant, in arguing before this court, employs what can only be described as circular reasoning. Pasteur argues that because an ATC is a motor-driven vehicle, it is in fact an excluded "motor vehicle." Pasteur's argument defies every principle of contract and insurance law. When a contract is silent as to a term, as this contract is, a court should not remedy the deficiency by divining from its crystal ball the drafter's intent. Robbins v. I.R.E. Real Estate Fund, Ltd.,
This contract also bears the hallmark of a contract of adhesion. Pasteur was in a strong bargaining position and Mrs. Salazar was only in a position to "take-it-or-leave-it." Harvard Indus., Inc. v. Aetna Casualty & Sur. Co.,
Florida courts have long held that all ambiguities in insurance contracts, as contracts of adhesion, should be construed in the light most favorable to the insured. Firemans Fund Ins. Co. of San Francisco, Cal. v. Boyd,
Even if the court interprets the exclusion clause in light of the Florida Statutes, as the trial court did, Mrs. Salazar would prevail. The Florida Statutes make it clear that the term "motor vehicle" does not encompass every "motor-driven" vehicle. Even section 316.003(21), Florida Statutes (1993), the traffic statute relied upon by appellant, notes that a moped — a motor-driven vehicle — is not a motor vehicle. More persuasive in interpreting this contract is the definition of a motor vehicle in the statutes dealing with motor vehicle and casualty insurance contracts: "`Motor vehicle' means 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 this state. ..." § 627.731, Fla. Stat. (1993) (emphasis added); see also §§ 324.021, 320.01, Fla. Stat. (1993). A three-wheeled ATC that is not required to be licensed does not qualify as a motor vehicle.
Also assuming, arguendo, that the purpose of the motor vehicle exclusion clause is to limit liability in situations that are covered by motor vehicle insurance, as the appellant suggests, then clearly an ATC does not fall within the exception. Unlike cars, trucks and other motor vehicles, ATCs are not required to be insured. The only statute that deals specifically with all-terrain vehicles merely requires that children under the age of 16 wear a safety helmet and that notice be given of all accidents that result in death or serious injury. § 316.2074, Fla. Stat. (1993). To hold that ATC injuries are excluded under Pasteur's HMO health plan undermines the very rationale the appellant has ascribed to its motor vehicle exclusion clause. It also leaves Mrs. Salazar without the benefit of health coverage she thought she purchased.
Because the contract is ambiguous and to find otherwise would be a grave injustice, the motor vehicle exclusion clause in the Pasteur contract cannot be interpreted to encompass injuries caused as the result of an ATC accident.
The trial court properly rejected Pasteur's remaining affirmative defenses. After the trial court ruled that the motor vehicle exclusion did not apply to the ATC accident, it granted Pasteur leave to amend its answer to plead other coverage defenses. Pasteur waived those defenses by failing to raise them in a timely fashion. See Wegener v. International Bankers Ins. Co.,
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