Almayor v. State Farm Fire & Cas. Co.

• Decision Date: 26 January 1993
• Docket Number: No. 91-2208,91-2208
• Citation: 613 So.2d 526
• Parties: 18 Fla. L. Weekly D371, 18 Fla. L. Weekly D443 Emilio ALMAYOR and Telvia Almayor, Appellants, v. STATE FARM FIRE & CASUALTY COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 526

613 So.2d 526

18 Fla. L. Weekly D371, 18 Fla. L. Weekly D443

Emilio ALMAYOR and Telvia Almayor, Appellants, v. STATE FARM FIRE & CASUALTY COMPANY, Appellee.

No. 91-2208.

District Court of Appeal of Florida Third District.

Jan. 26, 1993.

Rehearing Denied March 9, 1993.

Jugo & Murphy and Kathleen T. Murphy, Miami, for appellants.

Walton, Lantaff, Schroeder & Carson and Geoffrey B. Marks, Miami, for appellee.

Before SCHWARTZ, C.J., and FERGUSON and GERSTEN, JJ.

SCHWARTZ, Chief Judge.

At the owner's request, Almayor came to her home to "check out" and perhaps repair her car. In the course of working on the vehicle, which was parked in the driveway, Almayor siphoned gasoline from the tank and poured it into a bucket which was placed next to the steps of the house. At that point, one of the residents, Ramirez, who was insured by a State Farm homeowner's policy, came out of the house with a freshly-lit cigarette in his hand. The cigarette ignited the gasoline fumes and caused a fire and explosion which severely burned Almayor. He and his wife now appeal from a summary declaratory judgment granted State Farm that its policy did not cover Ramirez's potential liability because of the familiar "automobile exclusion." ¹

We reverse on the ground that the accident "arose out of" Ramirez's allegedly negligent use of flammable material, not the ownership, maintenance or use of the motor vehicle under repair. Indeed, the car had little, if anything, to do with the fire at all. It was merely the coincidental and legally remote source of a component, the gasoline, which was itself harmless until acted upon by the insured's negligence. See Aetna Casualty & Sur. Co. v. Goldman, 374 So.2d 539 (Fla. 3d DCA1979), cert. denied, 385 So.2d 757 (Fla.1980). Homeowner's insurance is expressly designed to protect against just this kind of individual liability. Conversely, automobile insurance and the automobile exclusion do not apply. Steir v. London Guarantee & Accident Co., 227 A.D. 37, 237 N.Y.S. 40 (1929), aff'd, 254 N.Y. 576, 173 N.E. 873 (1930); Nationwide Mutual Fire Ins. Co. v. Allen, 68 N.C.App. 184, 314 S.E.2d 552 (1984), review denied, 311 N.C. 761, 321 S.E.2d 142 (1984); see Roche v. United States Fidelity & Guar. Co., 247 A.D. 335, 287 N.Y.S. 38 (1936), aff'd, 273 N.Y. 473, 6 N.E.2d 410 (1936). See generally Hernandez v. Protective Casualty Ins. Co., 473 So.2d 1241 (Fla.1985); Fortune Ins. Co. v. Exilus, 608 So.2d 139 (Fla. 4th DCA1992); Hanson v. General Accident Fire & Life Ins. Corp., 450 So.2d 1260 (Fla. 4th DCA1984); O'Dwyer v. Manchester Ins. Co., 303 So.2d 347 (Fla. 3d DCA1974); St. Paul Fire & Marine Ins. Co. v. Thomas, 273 So.2d 117 (Fla. 4th DCA1973), cert. denied, 282 So.2d 638 (Fla.1973). Compare Volkswagen Ins. Co. v. Nguyen, 405 So.2d 190 (Fla. 3d DCA1981), review denied, 418 So.2d 1280 (Fla.1982) (automobile exclusion applicable when spark from automobile ignited gasoline being poured by insured into carburetor)....