Fenwick v. American States Ins. Co., 87-1057

• Decision Date: 17 February 1988
• Docket Number: No. 87-1057,87-1057
• Citation: 13 Fla. L. Weekly 472,520 So.2d 98
• Parties: 13 Fla. L. Weekly 472 Robert W. FENWICK and Mary Fenwick, husband and wife, Appellants, v. AMERICAN STATES INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 98

520 So.2d 98

13 Fla. L. Weekly 472

Robert W. FENWICK and Mary Fenwick, husband and wife, Appellants, v. AMERICAN STATES INSURANCE COMPANY, Appellee.

No. 87-1057.

District Court of Appeal of Florida,

Fourth District.

Feb. 17, 1988.

J. Reeve Bright of Merkel, Bright & Sullivan, P.A., Delray Beach, for appellants.

Melanie G. May of Bunnell, Denman & Woulfe, P.A., Fort Lauderdale, for appellee.

PER CURIAM.

We affirm the trial court's holding that the appellant, Robert Fenwick, is not entitled to uninsured motorist benefits under his employer's policy of insurance with the appellee insurance company. Appellant was injured when an uninsured vehicle struck the phone booth he was occupying. The trial court held that the policy only covered employees of the company while they were occupying a company car and that this coverage scheme did not violate the mandatory uninsured motorist insurance provisions in the Florida statutes. Cf. Pearcy v. Travelers Indemnity Co., 429 So.2d 1298 (Fla. 3d DCA), rev. denied, 438 So.2d 833 (Fla.1983). We agree with and adopt the reasoning of the trial court set out in its final order:

This matter has been considered upon the defendant's motion for summary judgment. For the sake of the motion, the court assumes that the facts as alleged in the complaint and in the plaintiff's affidavit filed February 23, 1987 are true. The important facts are that plaintiff, an employee of B.C. Coffee & Supplies, Inc. was in charge of the B.C.'s automobile on the day in question. However, at the time of the accident, he had left the automobile and had stepped into a phone booth to make a call when he was struck by another motorist who was uninsured. The court is of the view that Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 [ (Fla.1971) ] controls the matter. The following language from Mullis is instructive:

"When uninsured motorist coverage was obtained by Shelby Mullis pursuant to Section 627.0851 for himself as the named insured, for his spouse and for his or his spouse's relatives who are residents of his household, they were given the same protection in case of bodily injury as if the uninsured motorist had purchased automobile liability insurance in compliance with the Financial Responsibility Law. This, of course, would not be the case as to other persons potentially covered who are not in the class of the named insured and relatives resident in the Mullis household. These latter are protected only if they receive bodily injury due to the negligence of an uninsured motorist while they occupy the insured...