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PASTEUR HEALTH PLAN, INC. v. SALAZAR
658 So.2d 543 (1995)
PASTEUR HEALTH PLAN, INC., a domestic health maintenance organization, Appellant,
v.
Miriam SALAZAR, Appellee.
No. 94-738.
District Court of Appeal of Florida, Third District.
May 3, 1995.
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.
JORGENSON, Judge. 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.
Mrs. Salazar's son was riding as a passenger on a three-wheel, Honda ATC (All Terrain Cycle) driven by another party on a two-lane public street in Miami, Florida. The front tire blew out, and the driver lost control of the ATC. It left the roadway and smashed into a tree. Mrs. Salazar's son was critically injured in the accident and later died from those injuries. Mrs. Salazar was a subscriber of Pasteur's HMO health plan that contained the following exclusion: "Care for injuries or conditions that result from motor vehicle accidents, regardless of whether the member is the driver, passenger, or a pedestrian and regardless of whether the member has paid a fare, and boating accidents."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.1 We affirm the trial court's order, and hold that Pasteur cannot abandon its duty to its subscribers simply by relying on its own unspoken and unwritten interpretation of an ambiguous provision in a contract of adhesion that Pasteur itself drafted. 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.,608 So.2d 844, 846 (Fla. 3d DCA 1992) ("Where a contract is silent as to a particular subject, a court should not, under the guise of construction, impose on parties contractual duties which they themselves omitted when entering into the contract."), rev. denied, 620 So.2d 761 (Fla. 1993). There is nothing within the four corners of the contract to support the proposition that Pasteur "meant" to limit its liability for injuries associated with accidents involving ATCs.
1. Variety, as assignee of Mrs. Salazar, or alternatively as third party beneficiary, filed the main action against Pasteur. In that same action, Variety also sued Salazar for payment of her son's medical expenses. Salazar crossclaimed against Pasteur for breach of contract and declaratory relief. This appeal from the summary judgment on liability arose in the context of Salazar's crossclaim against Pasteur. 2. Pasteur often seems more interested in its own bottom line than in the welfare of its subscribers. Pasteur filed a counterclaim against Mrs. Salazar and attempted to effectuate service of process while she was keeping vigil by the hospital bed of her dying son. Further, Pasteur has previously taken inconsistent positions in litigation before this court, those positions calculated to benefit the company at the expense of its subscribers. Puig v. Pasteur Health Plan,640 So.2d 101 (Fla. 3d DCA 1994).
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