Fleming v. Hill

• Decision Date: 29 January 1987
• Docket Number: Nos. 86-237,86-263,s. 86-237
• Citation: 501 So.2d 715,12 Fla. L. Weekly 407
• Parties: 12 Fla. L. Weekly 407 Daniel Alphonse FLEMING and Allstate Insurance Company, Appellants, v. Catherine A. HILL, Personal Representative of the Estate of Thomas James Dunn, Jr.; American States Insurance Company; and Government Employees Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 715

501 So.2d 715

12 Fla. L. Weekly 407

Daniel Alphonse FLEMING and Allstate Insurance Company, Appellants, v. Catherine A. HILL, Personal Representative of the Estate of Thomas James Dunn, Jr.; American States Insurance Company; and Government Employees Insurance Company, Appellees.

Nos. 86-237, 86-263.

District Court of Appeal of Florida Fifth District.

Jan. 29, 1987.

Marybeth McDonald of Cooper, Rissman & Weisberg, P.A., Orlando, for appellant Daniel Alphonse Fleming.

Francis J. Carroll, Jr., of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Daytona Beach, for appellant Allstate Ins. Co.

Clifford D. Edelston of Gurney & Handley, P.A., Orlando, for appellee Government Employees Ins. Co.

F. Scott Pendley of Dean, Ringers, Morgan & Lawton, P.A. Orlando, for appellee American States Ins. Co.

No appearance for appellee Catherine A. Hill.

COBB, Judge.

This appeal arises out of a petition for declaratory relief filed by appellee, American States Insurance Company (American States), a cross-claim/counterclaim for declaratory relief filed by Government Employees Insurance Company (GEICO), and a wrongful death action against Daniel Fleming filed by appellee Catherine A. Hill, as personal representative of the Estate of Thomas Dunn. The material facts surrounding the incident and the actions below are not in dispute.

Fleming parked his van at a recreation park in Deltona to watch a baseball game. Dunn, together with three passengers, pulled up in a car behind Fleming's van, obstructing his exit. Fleming approached the other vehicle and requested Dunn to move. Fleming got back into his van and waited. After a short period, Fleming again asked Dunn to move. Dunn moved enough to allow Fleming to back out and pull parallel to Dunn's car. Fleming then took a pistol from his attache case in the van and once more approached Dunn on foot, purportedly to scare him and teach him a lesson. At that point he either accidentally or intentionally discharged the gun, killing Dunn while the latter sat in his own car behind the steering wheel.

A wrongful death action was instituted by Dunn's personal representative against Fleming. This action was subsequently consolidated with the declaratory relief actions filed by American States and GEICO. American States's third amended petition for declaratory relief named Fleming, Hill, GEICO and Allstate. American States issued a manufacturers and contractors insurance policy to Fleming covering his business pursuits as sole proprietor of Highland Sprinklers. GEICO had issued a homeowners policy to Fleming, and Allstate had issued a policy of automobile liability insurance covering the van.

Both GEICO and American States moved for summary judgment based upon their contentions that no coverage was afforded under their respective policies. At the hearing for summary judgment, Allstate, with the consent of the parties, made an ore tenus cross-motion for summary judgment, which it later filed with the court. The trial court granted GEICO's and American States's motions and denied Allstate's motion.

The final judgment entered by the trial court on January 13, 1986, found that the manufacturers and contractors liability policy issued by American States to Fleming did not provide coverage for two reasons: (1) an exclusion therein relating to bodily injury arising out of the operation or use of any automobile by the insured, and (2) Fleming's failure to comply with notice provisions in the policy. The trial court previously had declined to enter summary judgment for American States on the proffered ground that, under the undisputed facts, there was no coverage because Dunn's death did not result from the conduct of Fleming's sprinkler business.

The judgment also exonerated GEICO from coverage under its homeowners policy on several bases: (1) that its homeowners policy excluded coverage for bodily injury arising out of business pursuits of the insured; (2) that it also had an automobile exclusion similar to that of American States; and (3) that Fleming had violated the notice provisions of the policy.

The foregoing judgment has been appealed by Fleming and Allstate. Fleming, however, challenges only the judgment for American States, his business liability carrier. Fleming and Allstate both contend that the trial court erred in entering summary judgment for American States on the basis that Dunn's death arose out of the use of Fleming's motor vehicle. Both the GEICO homeowners policy and the American States business policy exclude coverage for bodily injury arising out of the ownership, maintenance, operation, use, loading or unloading of motor vehicles owned or operated by an insured.

Section 627.737(2), Florida Statutes (1985), provides:

... A plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness, or disease arising out of the ownership, maintenance, operation, or use of such motor vehicle....

GEICO and American States contend the shooting incident herein arose out of the use, etc., of Fleming's van, since the shooting occurred due to Dunn's refusal to move his car so that Fleming could exit the parking lot. As expressed by GEICO in its brief:

In the instant case, the altercation between Fleming and the decedent clearly arose out of the use of each driver's vehicle. One can scarcely imagine that Fleming would have become enraged at decedent if Fleming had been seated in a lawn chair on the park grounds as opposed to operating his vehicle. Clearly, the incident, Dunn's death, and the underlying wrongful death suit would not have arisen but for both Fleming's and Dunn's ownership and use of their respective vehicles at that particular time and place.

The Florida Supreme Court has addressed the meaning of "arising out of" in two recent cases. In Government Employees Ins. Co. v. Novak, 453 So.2d 1116 (Fla.1984), the insured was in her car when she was approached by a stranger who asked her for a ride. She refused, so the man shot her, pulled her from the car, got in and drove away. The personal representative of the insured's estate sought benefits from her personal injury protection (PIP) carrier, which denied coverage. The trial court granted summary judgment for the insurer on the ground that the injuries to the decedent did not arise from the use of the insured vehicle. The Fourth District reversed, finding a sufficient connection and the supreme court affirmed. The supreme court noted that while the phrase "arising out of" should be read to effect broad coverage, a nexus between the motor vehicle and the injury is required. Since the obtaining of a ride or the possession of the insured motor vehicle was what motivated the attack in Novak, the court found the nexus test was satisfied.

In Hernandez v. Protective Casualty Ins. Co., 473 So.2d 1241 (Fla.1985), the court once again addressed the issue of "arising out of." In that case, the insurer denied PIP coverage for injuries suffered by the insured at the hands of the police in the course of his arrest for a traffic violation. The supreme court agreed with this court's proposition in Reynolds v. Allstate Ins. Co., 400 So.2d 496 (Fla. 5th DCA 1981), that "it is not enough that an automobile be the physical situs of an injury or that the injury occur incidentally to the use of an automobile, but that there must be a causal connection or relation between the two for liability to exist." 400 So.2d at 497. The court found such a connection in Hernandez, finding that the car was more than the physical situs of the injury, since it was the insured's use of the vehicle which prompted the action causing his injuries.

This and other courts have followed Reynolds and have held that the mere fact the insured vehicle is the situs of the injury is an insufficient nexus to allow for coverage. See American States Ins. Co. v. Allstate Ins. Co., 484 So.2d 1363 (Fla. 5th DCA 1986) ("arising out of" test not met where passenger exiting from truck in which he was riding bitten by dog in back of truck); Doyle v. State Farm Mutual Automobile Ins. Co., 464 So.2d 1277 (Fla. 3d DCA 1985) (injuries suffered from attack by robber who shot the insured as he exited his vehicle held not to have arisen out of the ownership or use of the automobile); Allstate Ins. Co. v. Famigletti, 459 So.2d 1149 (Fla. 4th DCA 1984) (insureds, who were shot by a neighbor when they passed by in their automobile, did not suffer injuries arising out of the ownership of that automobile); Hutchins v. Mills, 363 So.2d 818 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1368 (Fla.1979) (accidental shooting of decedent by insured while using the flatbed of his truck as a deer stand held not to arise out of the use of the vehicle); Watson v. Watson, 326 So.2d 48 (Fla. 2d DCA 1976) (death of insured's son who was killed when pistol discharged as he was removing it from the insured's car at the scene of an accident prior to the car's being taken to a garage for repairs held not to have arisen out of the ownership, etc., of a car). But see, Western World Ins. Co. v. Gleaves, 481 So.2d 557 (Fla. 5th DCA 1986) (injury to ambulance attendant arising out of struggle within vehicle for control of key to vehicle seen as arising out of the...