Auto-Owners Ins. v. Above All Roofing, LLC

• Decision Date: 13 January 2006
• Docket Number: No. 2D05-236.,2D05-236.
• Citation: 924 So.2d 842
• Parties: AUTO-OWNERS INSURANCE COMPANY, Appellant, v. ABOVE ALL ROOFING, LLC, a Florida Limited Company; Jacek Loskot; and Jolnta Loskot, Appellees.
• Court: Florida District Court of Appeals

Page 842

924 So.2d 842

AUTO-OWNERS INSURANCE COMPANY, Appellant, v. ABOVE ALL ROOFING, LLC, a Florida Limited Company; Jacek Loskot; and Jolnta Loskot, Appellees.

No. 2D05-236.

District Court of Appeal of Florida, Second District.

January 13, 2006.

David A. Finlay of Law Office of Robert A. Dalessio, Tampa, for Appellant.

Michael D. Allweiss, St. Petersburg, for Appellees.

LaROSE, Judge.

Auto-Owners Insurance Company appeals the trial court's entry of a summary declaratory judgment in favor of Above All Roofing, LLC, and Jacek and Jolnta Loskot. The trial court ruled that Jacek Loskot, an Above All Roofing employee, was covered under his employer's uninsured motorist (UM) policy for injuries he suffered in an automobile accident. We reverse.

Mr. Loskot was driving a van owned by Above All Roofing and insured by Auto-Owners. While driving onto the interstate in Pinellas County, Mr. Loskot collided with a car driven by Robin L. Conyers. After impact, Ms. Conyers stopped her car in the right emergency lane. Mr. Loskot pulled over to the left, stopped his van in the median, and exited the van. He crossed the road and stood next to Ms. Conyers' car to render assistance and exchange driver information. While standing next to Ms. Conyers' car, Mr. Loskot was struck by a third vehicle driven by an uninsured motorist.

Auto-Owners denied Mr. Loskot's claim for UM benefits under Above All Roofing's policy. Auto-Owners concluded that Mr. Loskot was a pedestrian when injured and was not occupying or getting into or out of his van. The Loskots and Above All Roofing filed suit seeking a determination that Mr. Loskot was entitled to UM benefits.

In the lawsuit, Mr. Loskot alleged that he was injured while operating his employer's van. The parties stipulated that Mr. Loskot left the van to exchange information with Ms. Conyers, in compliance with sections 316.027 and 316.062, Florida Statutes (2002)¹; Mr. Loskot was struck by the third vehicle while fulfilling those obligations.²

After hearing argument on cross-motions for summary judgment, the trial court ruled that (1) the UM coverage provisions of the Auto-Owners policy were ambiguous, and (2) because Mr. Loskot was performing his statutory duties when injured, he was entitled to UM benefits under the policy.

In reviewing the trial court's ruling on a motion for summary judgment, we apply a de novo standard. See Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001). Similarly, the trial court's interpretation of an insurance policy to determine coverage is a matter of law also subject to our de novo review. Meyer v Hutchinson, 861 So.2d 1185, 1187 (Fla. 5th DCA 2003); Barnier v. Rainey, 890 So.2d 357, 359 (Fla. 1st DCA 2004) (addressing UM policy construction).

Auto-Owners' policy section II, Liability Coverage, addresses liability for bodily injury or property damage arising from Above All Roofing's ownership, maintenance, or use of its insured vehicles:

SECTION II — LIABILITY COVERAGE

1. COVERAGE

a. Liability Coverage — Bodily Injury and Property Damage

We will pay damages for bodily injury and property damage for which you become legally responsible because of or arising out of the ownership, maintenance or use of your automobile (that is not a trailer) as an automobile. We will pay such damages:

(1) on your behalf;

(2) on behalf of any relative using your automobile (that is not a trailer);

(3) on behalf of any person using your automobile (that is not a trailer) with your permission or that of a relative; and

(4) on behalf of any person or organization legally responsible for the use of your automobile (that is not a trailer) when used by you, a relative, or with your permission or that of a relative.

. . . .

2. EXCLUSIONS

Liability Coverage does not apply:

. . . .

j. to any expenses that would be payable under any workers compensation law, unemployment compensation or disability benefits law or under any similar law.

The Loskots and Above All Roofing did not sue for coverage under section II. Rather, they sought benefits under the UM provisions of the policy:

2. COVERAGE

We will pay damages any person is legally entitled to recover from the owner or operator of an uninsured automobile because of bodily injury sustained while occupying or getting into or out of an automobile that is covered by SECTION II — LIABILITY COVERAGE of the policy.

a. If the first named insured in the Declaration is an individual, this coverage is extended as follows:

(1) We will pay damages you are legally entitled to recover from the owner or operator of any uninsured automobile because of bodily injury you sustain:

(a) when you are a pedestrian; or

(b) when occupying an automobile you do not own which is not covered by SECTION II — LIABILITY COVERAGE of the policy.

(Emphasis added.)

Because Mr. Loskot was not a first named insured, he was not entitled to UM benefits as a pedestrian under section 2(a)(1)(a). See Travelers Ins. Co. v. Bartoszewicz, 404 So.2d 1053, 1054-55 (Fla. 1981) (stating that declaration of corporation as named insured does not render employees named insureds). Instead, he seeks UM benefits as a class II insured who suffered injuries while occupying or getting into or out of Above All Roofing's insured van.³ The Auto-Owners policy defines "occupying" as "in or upon, entering into or alighting from."

UM coverage exclusions for claimants who were not physically occupying the insured vehicle when injured are enforceable and do not violate public policy.

It is apparent that the public policy of this state is to require that named and other Class I insureds who own the vehicle or actually purchased the policy have the benefit of full and unrestricted uninsured motorist coverage.... On the other hand, the public policy of this state has not been offended by a more limited coverage in situations involving Class II or additional insureds. The cases interpreting those situations have all permitted the issuance of policies that restrict the coverage to injuries or death that occur while the insured is occupying the vehicle.

Alamo Rent-A-Car v. Hayward, 858 So.2d 1238, 1241-42 (Fla. 5th DCA 2003). See also Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229 (Fla.1971); Davis v. Fireman's Fund Ins. Co., 463 So.2d 1191 (Fla. 2d DCA 1985); Fenwick v. Am. States Ins. Co., 520 So.2d 98-99 (Fla. 4th DCA 1988).

Velasquez v. American Manufacturers Mutual Insurance Co., 387 So.2d 427 (Fla. 3d DCA 1980), is instructive. Mr. Velasquez' minor son was driving a rental car when it broke down. The son was struck and injured while walking to a service station. He sought benefits from the rental company's UM carrier. The son was not entitled to UM benefits because he was a Class II insured and was not occupying the car when he was injured.

By special provision of the policy, uninsured motorist protection was extended to any person while occupying the insured automobile. This provision did not limit the statutorily required coverage to owners but was in addition thereto. Neither this court nor the trial court is authorized to extend coverage beyond the plain language of the policy in the absence of ambiguity, waiver, estoppel, or contradiction of public policy.... None of these exceptions were proved in the trial court.

Id. at 428 (construing Mullis, 252 So.2d 229).

Here, Auto-Owners issued its policy to Above All Roofing, not to Mr. Loskot. The policy extended UM coverage to any person while occupying or getting into or out of the insured van. This provision added to, rather than limited, the statutorily required owner's coverage. See § 627.727(1), Fla. Stat. (2002); Velasquez, 387 So.2d at 428. Mr. Loskot was not physically occupying or getting into or out of the vehicle when he was struck by the uninsured motorist. As in Velasquez, coverage cannot extend beyond the plain language of the Auto-Owners policy.

UM coverage has been extended to Class II claimalts who were injured while touching or standing in close proximity to the insured vehicle. See, e.g., Asnip v. Hartford Accident & Indem. Co., 446 So.2d 1121 (Fla. 3d DCA 1984) (holding driver leaning against vehicle when struck by hit-ald-rul car was at least "upon" the vehicle and thus "occupying" it, where policy defined "occupying" as "in, upon, getting in, on, out or off" a vehicle); Progressive Am. Ins. Co. v. Tanchuk, 616 So.2d 489 (Fla. 4th DCA 1993) (holding tow truck driver was "occupying" insured tow truck when uninsured vehicle struck driver while hooking disabled vehicle to tow truck); Indus. Fire & Cas. Ins. Co. v. Collier, 334 So.2d 148, 149-50 (Fla. 3d DCA 1976) (holding person changing tire on vehicle was "occupying" it where policy defined "occupying" as "in or upon, or entering into, or alighting from a motor vehicle").

The facts of this case do not present a "close proximity" situation as in Tanchuk. Mr. Loskot left the insured van and was standing on the other side of the road when struck. In Allstate Insurance Co. v. Thomas, 668 So.2d 1038 (Fla. 4th DCA 1996), the Fourth District reversed a finding of UM coverage where the "decedent had already completed alighting from the insured vehicle, had walked to the rear of the disabled vehicle which was parked behind it, and was waiting to unload [it]" when he was struck and killed. Id. at 1039. Relying on Tanchuk, the Fourth District concluded that the employee "had simply gone too far from the insured vehicle in this case to be an occupant of it." Id.

Other Florida cases have declined to extend UM protection to Class II claimants who were not at least touching or in close proximity to the insured vehicle at the time of injury.⁴ In Fidelity & Casualty Co. of New York v. Garcia, 368 So.2d 1313 (Fla. 3d DCA 1979), the court construed the term "occupying," which included the term "alighting from," as limited to "the time and place at which the insured shows an intention, evidenced by an overt act based on that intention,...