Carpenter v. Sapp
| Decision Date | 05 October 1990 |
| Docket Number | No. 89-03465,89-03465 |
| Citation | 569 So.2d 1291 |
| Parties | 15 Fla. L. Weekly D2488 Margaret CARPENTER and Charles Carpenter, Appellants, v. Collen J. SAPP and Allstate Insurance Company, Appellees. |
| Court | Florida District Court of Appeals |
Keith J. Lambdin of D. Russell Stahl, P.A., Tampa, for appellants.
George A. Vaka of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellee Allstate Ins. Co.
In this unusual case, Collen Sapp was towing a trailer of cattle with his motor vehicle. He lost control of the vehicle, the trailer overturned, and the cattle spilled onto the side of the road. The cattle, two bulls to be exact, became enraged, crashed through a fence, and commenced wreaking havoc to personal property in Charles and Margaret Carpenter's back yard. Mrs. Carpenter had the misfortune to exit the rear door of her house, and, confronted by the bulls, she turned and fled, falling and injuring herself.
Sapp was insured by Auto Owners Insurance Company with liability limits of $15,000. The Carpenters are insured by Allstate Insurance Company with uninsured motorist coverage in the amount of $200,000. Auto Owners offered $12,500 in settlement to the Carpenters. The Carpenters asked permission of Allstate to accept the offer in contemplation of pursuing an underinsured claim against Allstate. Allstate refused.
Thereafter the Carpenters, in a three-count amended complaint, brought an action against Sapp and Allstate. Count I seeks damages from Sapp for motor vehicle negligence. Count II is an underinsured motorist claim against Allstate. Count III is a first-party bad faith claim against Allstate for refusing to permit the Carpenters to accept the Auto Owners offer.
Allstate responded to the amended complaint, which named it as a party, with a motion to dismiss. It claimed in principal part that the complaint failed to establish that the Carpenters' damages, if any, resulted from the ownership, maintenance, or use of an underinsured motor vehicle. The lower court, relying on Race v. Nationwide Mutual Fire Ins. Co., 542 So.2d 347 (Fla.1989), dismissed the complaint as to Allstate with prejudice. For the reasons stated below we hold that Race does not support dismissing the amended complaint with prejudice, and we reverse.
In Race two motorists were involved in a minor collision. Race exited his vehicle and approached Thompson, the other driver, who remained in his vehicle. When Race reached into a small bag to remove his insurance papers and identification, Thompson believed he was reaching for a weapon and assaulted him, inflicting serious injuries. Thompson was uninsured and Race brought suit under his uninsured motorist coverage.
The trial court granted partial summary judgment in Race's favor, finding that the incident arose from the "ownership, maintenance, or use of a motor vehicle." The Third District Court of Appeal reversed, determining that "the threshold test for automobile liability coverage is whether there is some nexus between the motor vehicle and the injury." See Nationwide Mutual Fire Ins. Co. v. Race, 508 So.2d 1276 (Fla. 3d DCA 1987). In so doing, it relied on Government Employees Ins. Co. v. Novak, 453 So.2d 1116 (Fla.1984), which states:
It is well settled that "arising out of" does not mean "proximately caused by," but has a much broader meaning. All that is required is some nexus between the motor vehicle and the injury.
453 So.2d at 1119. The district court went on to hold that such a "nexus" did not exist in Race's situation, because Thompson's attack was an intervening criminal act not related to the use of Thompson's vehicle.
The Florida Supreme Court reviewed and approved the Third District's determination that Race's injuries were not covered by his uninsured motorist policy. However, it disapproved that court's application of the Novak "nexus" test to uninsured motorist questions. Distinguishing the Novak test for personal injury coverage from the uninsured motorist coverage in Race, the supreme court said:
However, we are unwilling to apply the liberal PIP interpretation of nexus to claims for UM benefits.... [W]e believe that the term "arising out of the ownership, maintenance, or use" of a motor vehicle as contained in a UM policy should be given the same interpretation as that language is construed in automobile liability policies.
542 So.2d at 349. The court then went on to quote 6B J. Appleman, Insurance Law and Practice, section 4317 (Buckley ed. 1979).
This treatise contains a three-part coverage test, which if taken literally, could support the trial judge's determination in this case. It states:
1. The accident must have arisen out of the inherent nature of the automobile, as such; 2. The...
To continue reading
Request your trial
-
Allstate Ins. Co. v. Safer
...v. State Farm Mut. Auto. Ins. Co., 657 So.2d 925, 927 (Fla. 1st DCA 1995), rev. denied, 665 So.2d 220 (Fla.1995); Carpenter v. Sapp, 569 So.2d 1291, 1293 (Fla. 2d DCA 1990), rev. denied, Allstate Ins. Co. v. Carpenter, 581 So.2d 163 (Fla.1991); St. Paul Fire & Marine Ins. Co. v. Thomas, 273......
-
Heritage Mut. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 94-3539
..."flow from," "originate from" or "grow out of" "ownership, maintenance or use of" the insured vehicle. See, e.g., Carpenter v. Sapp, 569 So.2d 1291 (Fla. 2d DCA 1990), review denied, 581 So.2d 163 (Fla.1991); National Merchandise Co. v. United Serv. Auto. Ass'n, 400 So.2d 526 (Fla. 1st DCA ......
- Cimino v. U.S. Sec. Ins. Co.
-
PROGRESSIVE EXP. INS. CO. v. Russell, 4D99-3530.
...used to chase him down and transported the perpetrator who assaulted him. He urges that his position is supported by Carpenter v. Sapp, 569 So.2d 1291 (Fla. 2d DCA 1990) and Pomerantz v. Nationwide Mutual Fire Insurance Co., 575 So.2d 1311 (Fla. 3d DCA 1991). In Carpenter, an uninsured moto......