Florida Farm Bureau Ins. Co. v. Shaffer, 79-2586

• Decision Date: 08 October 1980
• Docket Number: No. 79-2586,79-2586
• Citation: 391 So.2d 216
• Parties: FLORIDA FARM BUREAU INSURANCE COMPANY, Appellant, v. Kenneth SHAFFER, a minor, by and through his mother and next friend, CarolNewton and Carol Newton, individually, Appellees.
• Court: Florida District Court of Appeals

Page 216

391 So.2d 216

FLORIDA FARM BUREAU INSURANCE COMPANY, Appellant, v. Kenneth SHAFFER, a minor, by and through his mother and next friend, CarolNewton and Carol Newton, individually, Appellees.

No. 79-2586.

District Court of Appeal of Florida, Fourth District.

Oct. 8, 1980.

Rehearing Denied Jan. 8, 1981.

Bernard F. Grall, Jr. of Grall & Herzog, P. A., Vero Beach, for appellant.

Montgomery, Lytal, Reiter, Denney & Searcy, P. A., and Edna L. Caruso, West Palm Beach, for appellees.

ANSTEAD, Judge.

This is an appeal by Florida Farm Bureau Insurance Company from a final summary judgment finding that its automobile liability insurance policy afforded coverage to its insured, Paul Long, who is alleged to have shot and injured the appellee, Kenneth Shaffer. We have jurisdiction. See State Farm Mutual Automobile Insurance Company v. American Hardware Mutual Insurance Company, 345 So.2d 726 (Fla.1977).

The facts are not in dispute. On or about November 21, 1977, the plaintiff, Kenneth Shaffer, was picked up at his home by an employee of the Fort Pierce News Tribune. Together with some other young boys, Shaffer was to be driven to a location where the boys would solicit newspaper subscriptions. While en route, the boys began throwing tangerines out of the car window at signs along the roadway. When one of the tangerines, thrown by the plaintiff Shaffer, was tossed in the general direction of an approaching vehicle driven by Richard English, the English car turned around and began chasing the Shaffer car. The defendant Paul Long, a passenger in the English car, pulled out a gun and fired a shot. In an attempt to get away, the driver of the Shaffer vehicle turned into a street and tried to turn around. In so doing he drove the car off the roadway and became stuck. At this point the defendant Long fired three shots out of the window of the English car, the third one striking and injuring the plaintiff Shaffer. Shaffer sued Long and Farm Bureau.

Long owned an automobile insured by a policy with Farm Bureau which afforded liability coverage to Long for bodily injury sustained as a result of the "use of any auto." Farm Bureau contends that the injury sustained by Shaffer did not result from the use of the automobile in which Long was a passenger.

The mere fact that a vehicle is the site of an injury or incident is insufficient to create a causal connection between the use of the vehicle and the injury so as to bring the injury within the policy coverage. Stonewall Insurance Company v. Wolfe, 372 So.2d 1147 (Fla. 4th DCA 1979); Hutchins v. Mills, 363 So.2d 818 (Fla. 1st DCA 1978); Feltner v. Hartford Accident and Indemnity Company, 336 So.2d 142 (Fla. 2d DCA 1976); Watson v. Watson, 326 So.2d 48 (Fla. 2d DCA 1976).

In General Accident Fire and Life Assurance Corporation, Ltd. v. Appleton, 355 So.2d 1261 (Fla. 4th DCA 1978), the insured, a female hitchhiker, was attacked and robbed by three men while she was riding in the automobile which picked her up. This court held that there was an insufficient causal connection between the use of the vehicle and the bodily injury sustained by the insured to allow recovery under her uninsured motorist policy. We held that the use of the automobile was simply incidental to the resulting injury and that the automobile served as no more than the physical situs of the attack. In so holding an attempt was made to define the type of causal relationship required in order to sustain coverage:

We recognize that bodily injury resulting from a criminal assault, under the terms of an uninsured motorist policy, may be caused by accident and arise "out of the ownership, maintenance or use of an uninsured automobile," as was the case in Leatherby. However, the risks of bodily injury from a criminal assault are not normally contemplated by the parties to an automobile liability insurance policy. For there to be coverage there must be a causal connection between the use of the automobile and the bodily injury resulting from the criminal assault. This may be established by showing that the automobile itself was used to inflict the bodily injury, as in Leatherby, or that the automobile was used in some manner that contributed or added to the bodily injury, as in Valdes. Considering the facts in this case, we conclude that Appleton failed to show a sufficient causal connection between the uninsured automobile which was the situs of the criminal assault and the bodily injury that he suffered as a result of the assault. ¹

A case on virtually all fours is Nationwide Mutual Insurance Company v. Knight, 34 N.C.App. 96, 237 S.E.2d 341 (1977). Based upon a similar shooting incident, the North Carolina court concluded that an injury caused by gunshots fired from the insured's moving vehcile did not constitute an accident arising out of the ownership, maintenance, or...