Container Corp. of America v. McKenzie Tank Lines, Inc.

• Decision Date: 23 April 1996
• Docket Number: No. 95-594,95-594
• Citation: 680 So.2d 509
• Parties: 21 Fla. L. Weekly D1030 CONTAINER CORPORATION OF AMERICA, Appellant/Cross-Appellee, v. McKENZIE TANK LINES, INC., Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 509

680 So.2d 509

21 Fla. L. Weekly D1030

CONTAINER CORPORATION OF AMERICA, Appellant/Cross-Appellee, v. McKENZIE TANK LINES, INC., Appellee/Cross-Appellant.

No. 95-594.

District Court of Appeal of Florida First District.

April 23, 1996.

Steven A. Werber and Tracy S. Carlin of Foley & Lardner, Jacksonville, for Appellant/Cross-Appellee.

John S. Miller, Tallahassee, for Appellee/Cross-Appellant.

ON MOTION FOR REHEARING

LAWRENCE, Judge.

We withdraw our January 16, 1996 opinion and substitute the following opinion. The parties' motions for clarification and rehearing in all other respects are denied.

We have for review the trial court's order disposing of the parties' motions for summary judgment. We reverse in part and affirm in part.

Willie Edwards (Edwards), an employee of McKenzie Tank Lines, Incorporated (McKenzie), burned himself on the Fernandina Beach premises of Container Corporation (Container), on March 7, 1992. Edwards was delivering caustic materials ¹ pursuant to a McKenzie-Container agreement (agreement) of January 10, 1991. The agreement contained a provision requiring McKenzie to secure $1,000,000 of vehicle and liability insurance, with Container as an added insured. Edwards sued Container, alleging negligence and strict liability for an abnormally dangerous business.

Container, when it learned that the insurance secured pursuant to the agreement contained a $250,000 deductible, sued McKenzie for breach of contract and negligent misrepresentation. Both Container and McKenzie moved for summary judgment. The trial judge granted McKenzie's motion for summary judgment and denied Container's motion. The judge also determined that workers' compensation immunity does not bar Container's suit against McKenzie. Container appeals; McKenzie cross-appeals, raising the immunity issue. We reverse on the appeal, and affirm on the cross-appeal.

This court, in reviewing a summary final judgment, must determine whether there is any genuine issue of material fact, and whether the law is correctly applied to the facts. Hancock v. Department of Corrections, 585 So.2d 1068 (Fla. 1st DCA 1991), review denied, 598 So.2d 75 (Fla.1992). The parties stipulated to the facts in the instant case. The essential question for review thus is whether the trial judge properly applied the law to the facts when he determined that Edwards' accident did not arise out of the "use" of the vehicle insured by Continental. The judge reasoned that if Edwards was not injured during use, then whether or not McKenzie negligently misrepresented the Continental policy coverage to Container, or breached its contract with Container by failing to secure required insurance, is moot.

ISSUES ON APPEAL

Use

The Florida Supreme Court tells us about "use":

In analyzing liability coverage for an act arising out of the ownership, maintenance, and use of a motor vehicle, 6B J. Appleman, Insurance Law and Practice, section 4317 (Buckley ed. 1979), states:

It has been stated that the liability of an insurer under the "ownership, maintenance, or use" provision should be measured in accord with the terms of a policy as understood by a person of reasonable intelligence. The word "coverage" as used in automobile liability policy means the sum of risks which the policy covers. Ownership, maintenance, or use of the automobile need not be the direct and efficient cause of the injury sustained.

Rather, the courts have only required that some form of causal relationship exist between the insured vehicle and the accident. However, liability does not extend to results distinctly remote, though within the line of causation.

....

Accordingly, three rather interesting rules have been set up to determine the insurer's liability: 1. The accident must have arisen out of the inherent nature of the automobile, as such; 2. The accident must have arisen within the natural territorial limits of an automobile, and the actual use, loading, or unloading must not have terminated; 3. The automobile must not merely contribute to cause the condition which produces the injury, but must, itself, produce the injury.

Race v. Nationwide Mut. Fire Ins. Co., 542 So.2d 347, 349 (Fla.1989) (emphasis added). This court also tells us about "use":

In analyzing whether or not the facts of this case fall within the "use" coverage of the policy, a three-pronged test has been suggested:

1. The accident must have arisen out of the inherent nature of the automobile, as such;

2. The accident must have arisen within the natural territorial limits of an automobile, and the actual use, ... must not have terminated;

3. The automobile must not merely contribute to cause the condition which produces the injury, but must, itself, produce the injury.

The first prong requires that the "use" arise out of the "inherent nature" of the car. That an automobile is used to transport and even store items, either personal or commercial in nature, seems to us inherent....

The second prong of the test requires that the accident occur within the territory of the auto and that the "use" not have terminated....

The third prong presents a more difficult problem. In [the second district], Judge Grimes noted that this prong defines "arising out of [the use]" to mean "originating from," "growing out of," or "flowing from." A showing of proximate cause between the use of the car and the auto accident is not required. What is required is that a "causal connection or relation" between the two is shown....

Since we are here concerned with a provision of the policy relating to coverage, rather than exclusions from coverage, the terms used must be liberally construed in favor of the injured party. In view of the broad and comprehensive sense in which the term "auto accident" may be construed, we consider that only a minimal causal connection between the use of the automobile and the injury is required for coverage to apply.

National Merchandise Co. v. United Serv. Auto. Ass'n, 400 So.2d 526, 532 (Fla. 1st DCA 1981) (citations and footnotes omitted) (emphasis added).

The trial court determined that no causal connection exists between Edwards' accident and the use of McKenzie's vehicle. This conclusion is sustainable as a matter of law only if one ignores the language informing us that "only a minimal causal connection between the use of the automobile and the injury is required for coverage to apply." We moreover agree that "use" of a vehicle includes its loading and unloading. Pomerantz v. Nationwide Mut. Fire Ins. Co., 575 So.2d 1311 (Fla. 3d DCA 1991). "Trucks, by their inherent nature, are vehicles that must be loaded and unloaded in order to be used in their customary manner." Id. at 1313.

Edwards' accident thus arose out of the inherent nature of the truck--it had to be loaded and unloaded. The accident arose within the natural territorial limits of the truck, and the truck's actual use was not terminated--Edwards was removing equipment from the back of the truck when he was injured; Edwards reentered the truck and drove off, unaware of his injury. And a minimal causal connection exists between the use of the truck and Edwards' injury--the unloading process set in motion a chain of events ending in injury. See also Heritage Mut. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 657 So.2d 925, 927 (Fla. 1st DCA 1995) (holding that injuries received by a child during "horseplay" while a passenger in a van resulted from an accident arising out of the "ownership, maintenance or use of" the van; "the question is one of foreseeability"--"we think it quite foreseeable that the use of the van for such a purpose would set in motion a chain of events ending in an incident such as that which caused [the child's] injuries").

We furthermore have noted that "only where reasonable persons could not differ on the issue of foreseeability may the court decide as a matter of law that a certain act or conduct constitutes an independent, efficient intervening cause." Pamperin v. Interlake Cos., 634 So.2d 1137,...