Davis v. Fireman's Fund Ins. Co., 83-2520
| Decision Date | 18 January 1985 |
| Docket Number | No. 83-2520,83-2520 |
| Citation | 10 Fla. L. Weekly 212,463 So.2d 1191 |
| Parties | 10 Fla. L. Weekly 212 Sandra DAVIS, as personal representative of the Estate of Neil Allen Davis, deceased, Appellant, v. FIREMAN'S FUND INSURANCE COMPANY, Appellee. |
| Court | Florida District Court of Appeals |
Edward C. Rood, Jr. of Rood & Webster, and Mary Ann Stiles of Stiles & Allen, Tampa, for appellant.
Bruce A. Walkley of Walkley, Stuart & Macy, Tampa, for appellee.
Davis is the personal representative of the estate of Neil Allen Davis, a tow truck operator who was struck and killed by an uninsured motorist while changing a tire on a disabled vehicle on Interstate 275 in Tampa, Florida. Gillette Auto Center had expressly consented to have the deceased use their wrecker. At the time of the accident, the deceased was outside the wrecker changing the rear tire on the passenger side of the vehicle. On these facts the trial court entered a declaratory judgment in favor of Fireman's Fund, Gillette's insurer, finding that the deceased was not entitled to uninsured motorist benefits as he was not "occupying" the wrecker owned by Gillette Auto Center when he was killed. We affirm.
The uninsured motorist section of Gillette's policy defines an insured as "anyone ... occupying a covered auto." The term "occupying" is defined as "in, upon, getting in, on, out or off." When the language of an insurance contract is unambiguous, as we believe it is here, the language must be given its plain, ordinary, and popular meaning, the same as any other contract. Carter v. Peninsular Fire Insurance Co., 411 So.2d 960 (Fla. 3d DCA 1982). Even applying, as we must, the most liberal interpretation of the language possible to achieve coverage, M.E. Charlesworth, Ltd. v. Perez, 426 So.2d 1107 (Fla. 3d DCA 1983), we simply cannot say that the deceased was "occupying" the wrecker when he was struck and killed. See Testone v. Allstate Insurance Co., 165 Conn. 126, 328 A.2d 686 (1973) ().
Affirmed.
To continue reading
Request your trial
-
Auto-Owners Ins. v. Above All Roofing, LLC
...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 Velasquez v. American Manufacturers Mutual Insurance C......
-
Progressive American Ins. Co. v. Tanchuk
...before us, I cannot agree the injured party in this case was "occupying" the tow truck when he was injured. See Davis v. Fireman's Fund Ins. Co., 463 So.2d 1191 (Fla. 2d DCA), rev. denied, 471 So.2d 43 (Fla.1985); State Farm Mut. Auto. Ins. Co. v. Yanes, 447 So.2d 945 (Fla. 3d DCA 1984). Da......
-
State Farm Mut. Auto. Ins. Co. v. Bailey
...at least touching or in close proximity to the insured vehicle at the time of injury." Id. at 846 ; see, e.g., Davis v. Fireman's Fund Ins. Co., 463 So.2d 1191 (Fla. 2d DCA 1985) ; Allstate Ins. Co. v. Thomas, 668 So.2d 1038 (Fla. 4th DCA 1996) ; State Farm Mut. Auto. Ins. Co. v. Yanes, 447......
-
West American Ins. Co. v. Lovett
...not occupying the pickup truck at the time of the accident causing his bodily injuries and death. See, e.g., Davis v. Fireman's Fund Insurance Co., 463 So.2d 1191 (Fla. 2d DCA), rev. denied, 471 So.2d 43 (Fla.1985); State Farm Mutual Automobile Insurance Co. v. Yanes, 447 So.2d 945 (Fla. 3d......