SAFETY NATIONAL CASUALTY CORPORATION v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AND LEE COUNTY SCHOOL BOARD

• Court: District Court of Appeal of Florida
• Decided: May 24, 2019
• Docket: 17-4899
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

LEE COUNTY SCHOOL BOARD, ) ) Appellant, ) ) v. ) Case No. 2D17-4595 ) STATE FARM MUTUAL AUTOMOBILE ) INSURANCE COMPANY, ) ) Appellee. ) ) SAFETY NATIONAL CASUALTY ) CORPORATION, ) ) Appellant, ) ) v. ) ) Case No. 2D17-4899 STATE FARM MUTUAL AUTOMOBILE ) INSURANCE COMPANY, ) ) ) Appellee. ) CONSOLIDATED )

Opinion filed May 24, 2019.

Appeal from the Circuit Court for Lee County; Alane C. Laboda, Judge.

Andrew S. Bolin of Beytin, McLaughlin, McLaughlin, O'Hara, Bocchino & Bolin, Tampa, for Appellant Lee County School Board. Jeremy W. Rogers of Freeman Mathis & Gary, LLP, Tampa, for Appellant Safety National Casualty Corporation.

David B. Kampf and Sarah M. Sorgie of Ramey & Kampf, P.A. Tampa, for Appellee State Farm Mutual Automobile Insurance Company.

SLEET, Judge.

The trial court entered final summary judgment in favor of State Farm Mutual

Automobile Insurance Company in State Farm's action against the Lee County School Board

(the School Board) and Safety National Casualty Corporation. In that action State Farm

sought reimbursement from both the School Board and Safety National for personal injury

protection (PIP) benefits that it had paid to two of its insureds who were injured while

passengers on a school bus owned by the School Board. Both the School Board and Safety

National appeal, with the School Board arguing that State Farm's claims against it are barred

by the doctrine of sovereign immunity and Safety National arguing that it is not an insurer for

purposes of the reimbursement statute, section 627.7405(1), Florida Statutes (2015), and that

its policy exclusions exempt it from the dictates of the statute. We, however, conclude that

State Farm has a right of reimbursement against the School Board which is not barred by

sovereign immunity, that Safety National is the School Board's insurer as contemplated by the

statute, and that Safety National is subject to the statutory provision. Accordingly, we affirm

the trial court's order finding that the School Board and Safety National are jointly and severally

liable for reimbursement of the PIP benefits paid by State Farm.

The facts of this case are undisputed. On August 24, 2014, two insureds of State

Farm were injured as passengers on a school bus owned and operated by the School Board

-2- for public school transportation. As a result of the accident, State Farm paid no-fault benefits

in the amount of $10,000 for each injured party. State Farm demanded reimbursement of the

paid benefits from both the School Board and its insurer, Safety National. Both the School

Board and Safety National rejected State Farm's demand, and State Farm filed the underlying

action for reimbursement.

State Farm moved for summary judgment, arguing that because it was

undisputed that the School Board owned the bus and that Safety National insured the bus, it

was entitled to reimbursement as a matter of law pursuant to section 627.7405(1). The School

Board also moved for summary judgment, arguing that State Farm's claim was barred by

sovereign immunity, which it raised as an affirmative defense, and that the Florida Motor

Vehicle No-Fault Law, see §§ 627.730-.7405, does not contain an express waiver of sovereign

immunity. Safety National filed a memorandum of law in opposition to State Farm's motion for

summary judgment, arguing that it was not an "insurer" under the reimbursement statute and

that its insurance policy with the School Board excludes school bus occupants from coverage.

Following a hearing, the trial court concluded that sovereign immunity was not a bar to State

Farm's entitlement to reimbursement from the School Board and that Safety National was the

School Board's insurer as contemplated by section 627.7405(1). The trial court therefore

entered final summary judgment in favor of State Farm.

I. SOVEREIGN IMMUNITY

On appeal, the School Board argues that the trial court erred in concluding that

State Farm's action is not barred because school boards are government agencies entitled to

the benefit of sovereign immunity and because the Florida Legislature has not enacted a

-3- general law that clearly and unequivocally waives sovereign immunity in this instance. We

disagree.

Section 627.7405(1) provides as follows:

Notwithstanding ss. 627.730-627.7405, an insurer providing personal injury protection benefits on a private passenger motor vehicle shall have, to the extent of any personal injury protection benefits paid to any person as a benefit arising out of such private passenger motor vehicle insurance, a right of reimbursement against the owner or the insurer of the owner of a commercial motor vehicle, if the benefits paid result from such person having been an occupant of the commercial motor vehicle or having been struck by the commercial motor vehicle while not an occupant of any self-propelled vehicle.

Section 627.732(3)(b) defines "commercial motor vehicle" as "any motor vehicle which is not a

private passenger motor vehicle" and further states that the term "does not include a mobile

home or any motor vehicle which is used in mass transit, other than public school

transportation, . . . and which is owned by a municipality, a transit authority, or a political

subdivision of the state." As such, the Florida Motor Vehicle No-Fault Law specifically includes

public school buses in the definition of "commercial motor vehicle" and thereby subjects

owners of public school buses to the reimbursement provision of section 627.7405(1).

The School Board is correct that "[t]he doctrine of sovereign immunity . . .

provides that a sovereign cannot be sued without its own permission." Am. Home Assurance

Co. v. Nat'l R.R. Passenger Corp., 908 So. 2d 459, 471 (Fla. 2005). "However, the Florida

Constitution provides that the [l]egislature can abrogate the state's sovereign immunity." Id.;

see also art. X, § 13, Fla. Const. ("Provision may be made by general law for bringing suit

against the state as to all liabilities now existing or hereafter originating."). "Only the

[l]egislature has authority to enact a general law that waives the state's sovereign immunity.

Further, any waiver of sovereign immunity must be clear and unequivocal." Am. Home

-4- Assurance, 908 So. 2d 471-72 (citation omitted). And legislative waivers of sovereign

immunity must be strictly construed. Id. at 472 ("[W]aiver will not be found as a product of

inference or implication.").

Here, the School Board maintains that there is no clear and unequivocal waiver

of sovereign immunity in section 627.7405(1) or any of the related no-fault provisions of

chapter 627, and it points to section 768.28, Florida Statutes (2015), as an example of such a

waiver. That section provides that "the state, for itself and for its agencies or subdivisions,

hereby waives sovereign immunity for liability for torts, but only to the extent specified in this

act." § 768.28(1). The School Board argues that this language in section 768.28(1) indicates

that the legislature knows how to clearly and unequivocally waive sovereign immunity when it

intends to do so and that because it did not use the specific language "the state . . . waives

sovereign immunity" in chapter 627, the legislature did not intend to waive sovereign immunity

with regard to the state's liability for reimbursement of PIP payments pursuant to section

627.7405(1).

But although chapter 627 does not include the phrase "the state . . . waives

sovereign immunity," we cannot ignore the fact that the legislature specifically excluded motor

vehicles used for public school transportation from its definition of what is not a commercial

motor vehicle. See United Auto Ins. Co. v. Rodriguez, 808 So. 2d 82, 85 (Fla. 2001) ("Where

the wording of [a statute] is clear and amenable to a logical and reasonable interpretation, a

court is without power to diverge from the intent of the [l]egislature as expressed in the plain

language of the [statute]."). Prior to 1997, the definition of "commercial motor vehicle" included

in section 627.732 was "any motor vehicle which is not a private passenger motor vehicle," but

the statute included the caveat that "[t]he term 'motor vehicle' does not include . . . any motor

-5- vehicle which is used in mass transit or public school transportation." § 627.732(1)(b), Fla.

Stat. (1995). Thus, under that earlier version of the statute, owners of public school buses

would not have been subject to the reimbursement provision of section 627.7405(1).

However, in 1997, the legislature amended the definition of "commercial motor

vehicle" in section 627.732 to its current definition, which specifically includes motor vehicles

used for public school transportation. See ch. 97-84, § 1, Laws of Fla. We cannot disregard

this change in the statute. See Bailey v. St. Louis, 196 So. 3d 375, 383 (Fla. 2d DCA 2016)

("When the [l]egislature makes a substantial and material change in the language of a statute,

it is presumed to have intended some specific objective or alteration of law, unless a contrary

indication is clear." (quoting Mangold v. Rainforest Golf Sports Ctr., 675 So. 2d 639, 642 (Fla.

1st DCA 1996))).

By expressly including vehicles used for public school transportation in the

definition of "commercial motor vehicle," while expressly excluding other vehicles "used in

mass transit" and "owned by a municipality, a transit authority, or a political subdivision of the

state," see § 627.732(3)(b), Fla. Stat. (2015), the legislature has clearly and unequivocally

waived sovereign immunity for actions brought under section 627.7405(1) for reimbursement

of PIP benefits paid to individuals injured on vehicles used for public school transportation,

which necessarily include public school buses. By expressly including vehicles owned by an

entity that ordinarily enjoys the protection of sovereign immunity—specifically, a school

board—in the definition of vehicles subject to a statutory cause of action for reimbursement,

the legislature has clearly and unequivocally waived sovereign immunity as to that cause of

action. Furthermore, if it was not the intent of the legislature to waive the School Board's

sovereign immunity as to section 627.7405(1), the expressed exclusion of other government-

-6- owned vehicles from the definition of "commercial motor vehicle" would be unnecessary. See

Gordon v. Fishman, 253 So. 3d 1218, 1220 (Fla. 2d DCA 2018) ("The cardinal rule of statutory

construction is that a statute should be construed so as to ascertain and give effect to the

intention of the [l]egislature as expressed in the statute." (quoting Gaulden v. State, 195 So. 3d

1123, 1125 (Fla. 2016))). Accordingly, we conclude that the legislature expressly waived

sovereign immunity for owners of vehicles used for public school transportation in actions

brought pursuant to section 627.7405(1). To conclude otherwise would require this court to

impermissibly rewrite the statute to create an exclusion for school boards that does not exist.

See Paylan v. Dep't of Health, 226 So. 3d 296, 300 (Fla. 2017) ("We are not at liberty to add

words to statutes that were not placed there by the [l]egislature." (alteration in original) (quoting

Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999))).

II. NO-FAULT INSURANCE EXEMPTION

The School Board also argues on appeal that it should be exempt from

reimbursement under section 627.7405(1) because the legislature expressly exempted motor

vehicles used as school buses from the statutory requirement to maintain no-fault insurance

coverage. See § 627.733(1)(a) (requiring "[e]very owner or registrant of a motor vehicle, other

than a motor vehicle used as a school bus . . . or limousine" to maintain insurance that

provides the benefits and exemptions of the Florida Motor Vehicle No-Fault Law). We

disagree. The express exemption of school buses from the requirement to maintain no-fault

insurance does not conflict with the express inclusion of school buses in the definition of a

"commercial motor vehicle," the owner of which is subject to the reimbursement provision of

section 627.7405(1). The plain language of section 627.7405(1) expressly provides that the

right of reimbursement against the owner of a commercial motor vehicle exists

-7- "[n]otwithstanding ss. 627.730-627.7405," and we need look no further than the plain language

of the statute. See Patrick v. Hess, 212 So. 3d 1039, 1041 (Fla. 2017) (" 'When the statute is

clear and unambiguous,' we look no further than the statute's plain language to determine the

[l]egislature's intent and . . . avoid rules of statutory construction." (quoting Daniels v. Fla. Dep't

of Health, 898 So. 2d 61, 64 (Fla. 2005))). As such, section 627.733(1)(a) cannot act as a

limitation on section 627.7405(1).

III. POLICY EXCLUSIONS

Safety National also relies on the fact that the School Board is not required to

maintain no-fault insurance on its school buses to argue that it cannot be deemed an "insurer"

under section 627.7405(1). Safety National points out that by the terms of its policy with the

School Board, it only provides coverage for vehicles owned by the School Board which are

required to carry no-fault insurance. It argues that because school buses are exempt from the

requirements of section 627.733(1)(a), under the exclusions of its policy, it does not provide

no-fault PIP insurance for the School Board's school buses and therefore cannot be

considered to be "the insurer of the owner of a commercial motor vehicle" referenced in

section 627.7405(1). Safety National maintains that the term as used in the statute can only

mean an insurer that provides no-fault PIP benefits for the commercial motor vehicle involved

in the accident. We reject this argument.

Section 627.7405(1) clearly and unambiguously provides a right of

reimbursement against "the insurer of the owner of a commercial vehicle," without any

qualification of that term. If the legislature intended for such an exception to the right of

reimbursement to apply when an insurer does not provide no-fault PIP benefits, it could have

provided for such in the statutory language, but we cannot read one into the statute where one

-8- does not exist. See Paylan, 226 So. 3d at 300. Although the statute does not define the term

"insurer," "[w]here . . . the legislature has not defined the words used in a [statute], the

language should be given its plain and ordinary meaning." Sch. Bd. of Palm Beach Cty. v

Survivors Charter Sch., Inc., 3 So. 3d 1220, 1233 (Fla. 2009) (second alteration in original)

(quoting Fla. Birth-Related Neurological Injury Comp. Ass'n v. Fla. Div. of Admin. Hearings,

686 So. 2d 1349, 1354 (Fla. 1997)). It is " 'appropriate to refer to dictionary definitions when

construing statutes' in order to ascertain the plain and ordinary meaning of words used there."

Id. (quoting Barco v. Sch. Bd. of Pinellas Cty., 975 So. 2d 1116, 1122 (Fla. 2008)). To that

end, Black's Law Dictionary defines "insurer" as "[s]omeone who agrees, by contract, to

assume the risk of another's loss and to compensate for that loss." Insurer, Black's Law

Dictionary (10th ed. 2014). Safety National meets that definition.

By its own admission, Safety National provides insurance coverage for the

school bus at issue. In response to the allegation in State Farm's complaint that "the vehicle at

issue . . . was covered under a policy of insurance with Safety National Casualty Corporation,"

Safety National admitted in its answer that "the school bus at issue was insured under a policy

of insurance to the School District of Lee County" at the time of the instant accident. That

policy provides that Safety National "will pay all sums an 'insured' legally must pay as damages

because of 'bodily injury' or 'property damage' to which this insurance applies, caused by an

'accident' and resulting from the ownership, maintenance or use of a covered 'auto.' " The

"schedule of coverages" and "covered autos" sections of the policy provide that liability

coverage applies to "any auto," which includes school buses. Accordingly, the School Board's

policy with Safety National provides coverage to the School Board for bodily injury damages

-9- incurred as the result of an accident involving a covered vehicle. That makes Safety National

the School Board's insurer and subject to the reimbursement provision of section 627.7405(1).

Safety National also attempts to avoid reimbursement liability by pointing out that

the injured parties are not "insureds" under Safety National's policy with the School Board and

that in fact they are specifically excluded under the terms of that policy. While that may be

true, it is of no consequence. Safety National is not liable to reimburse State Farm pursuant to

the specific terms of its policy with the School Board. Rather, it is liable for reimbursement

pursuant to the plain language of section 627.7405(1), and nothing in its policy with the School

Board trumps the statutory requirement.

IV. CONCLUSION

We affirm the trial court's order granting final summary judgment in favor of State

Farm. State Farm paid PIP benefits to two of its own insureds who were injured while

passengers on a school bus owned by the School Board, and pursuant to section 627.7405(1),

it has a statutory right to reimbursement from the School Board as the owner of that

commercial motor vehicle and from Safety National as the School Board's insurer.1

Affirmed.

CASANUEVA and SILBERMAN, JJ., Concur.

1We note that our holding here is in line with the public policy behind the right of reimbursement statute, which is to "reallocate[] some of the risk from the insurers of private vehicles to the [owners and] insurers of commercial vehicles" and to reduce or maintain current insurance premium rates for the owners of private vehicles. See Amerisure Ins. Co. v. State Farm Mut. Auto. Ins. Co., 897 So. 2d 1287, 1289 (Fla. 2005).

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