Auto-Owners Ins. Co. v. Young, No. 1D07-3787.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: Lewis
• Citation: 978 So.2d 850
• Decision Date: 07 April 2008
• Docket Number: No. 1D07-3787.
• Parties: AUTO-OWNERS INSURANCE COMPANY, Appellant, v. Nancy YOUNG, As Personal Representative of the Estate of Wayne Alan Young, Sr., Deceased, Appellee.

978 So.2d 850 AUTO-OWNERS INSURANCE COMPANY, Appellant,
v.
Nancy YOUNG, As Personal Representative of the Estate of Wayne Alan Young, Sr., Deceased, Appellee. No. 1D07-3787. District Court of Appeal of Florida, First District. April 7, 2008.

[978 So.2d 851]

Carl D. Dawson of Dawson, Galant & Sulik, P.A., Jacksonville, for Appellant.

John Marc Tamayo of Valenti Campbell Trohn Tamayo & Aranda, Lakeland, and Gary L. Printy Jr., Bartow, for Appellee.

LEWIS, J.

Appellant, Auto-Owners Insurance Company, seeks review of the trial court's final judgment in favor of Appellee, Nancy Young, as personal representative of the estate of Wayne Alan Young, Sr., deceased. Appellant argues the trial court erred in granting Appellee's motion for summary judgment on her claim of entitlement to uninsured motorist benefits. Appellant also argues the trial court erred in denying its motion for summary judgment on the issue of non-liability. We agree with both contentions, and accordingly, we reverse.

On January 18, 2004, Wayne Alan Young, Sr., the decedent, and Donald Ross, whom the decedent was training, both employees of Mike's Auto Repair, responded to a call to tow a disabled tractor-trailer from the median of I-10. The decedent parked the tow truck on the shoulder of the median. The decedent and Ross then walked over to the disabled truck's driver, who had gotten out of his vehicle and was walking toward them. The driver informed them that he did not have funds for the tow but that he would try to get a "com check." The decedent and Ross then walked back to the tow truck, and, under the decedent's direction, Ross took the towing cable off the tow truck. The decedent helped Ross pull the cable from the tow truck but let go of it about halfway to the disabled vehicle. Ross pulled the cable the rest of the way to the front of the disabled truck and set it on the ground without hooking it to the truck. Ross and the decedent then walked down into the median and waited to see whether the driver of the disabled vehicle could secure funds for the tow. While standing in the median, approximately twenty to twenty-five feet from the cable, and approximately twenty to twenty-five feet from the tow truck, the decedent was struck and killed by a tractor-trailer that swerved off the road to avoid a car that was braking in front of it. The tractor-trailer also struck Ross in a glancing blow to his legs, but he survived. Approximately five minutes passed from the time Ross dropped the cable in front of the disabled truck to the time when the accident occurred.

Appellee filed an action against Appellant, the insurer of the tow truck, arguing entitlement to uninsured motorist benefits. Appellant's policy provides, in pertinent part, as follows: "We will pay damages you are legally entitled to from the owner or operator of any uninsured automobile because of bodily injury sustained while occupying or getting into or out of an automobile." Appellant denied coverage and moved for summary judgment, arguing that the decedent was not "occupying" the insured vehicle at the time of the accident. The trial court denied Appellant's motion. Appellee then filed a motion for summary judgment. The trial court granted Appellee's motion, and, relying on Progressive American Insurance Co. v. Tanchuk, 616 So.2d 489 (Fla. 4th DCA 1993), held that the decedent was "occupying" the insured tow truck at the time of the accident. Subsequently, the

978 So.2d 852

trial court entered a final judgment awarding Appellee $100,000.00 in uninsured motorist benefits. This timely appeal follows.

We review a trial court's grant of summary judgment de novo. Key v. Trattmann, 959 So.2d 339, 341 (Fla. 1st DCA 2007). When reviewing a trial court's summary judgment ruling, an appellate court must draw all reasonable inferences in favor of the party opposing summary judgment. U.S. Lodging of Jacksonville, Ltd. v. H.B. Daniel...