Fortune Ins. Co. v. Exilus, 91-3318

• Decision Date: 12 November 1992
• Docket Number: No. 91-3318,91-3318
• Citation: 608 So.2d 139
• Parties: 17 Fla. L. Weekly D2530 FORTUNE INSURANCE COMPANY, Appellant, v. Renal EXILUS, Appellee.
• Court: Florida District Court of Appeals

Page 139

608 So.2d 139

17 Fla. L. Weekly D2530

FORTUNE INSURANCE COMPANY, Appellant, v. Renal EXILUS, Appellee.

No. 91-3318.

District Court of Appeal of Florida Fourth District.

Nov. 12, 1992.

Matt Hellman of Matt Hellman, P.A., Plantation and Diane H. Tutt of Diane Tutt, P.A., Fort Lauderdale, Fort Lauderdale, for appellant.

Eric L. Ansel of Ansel & Simon, P.A., and Paul J. Ansel of Law Office of Paul J. Ansel, Hollywood, for appellee.

PER CURIAM.

Fortune Insurance Company ("Fortune") appeals from a final summary judgment finding that appellee, Renal Exilus, was entitled to automobile insurance personal injury protection (PIP) benefits as a result of injuries he sustained in a shooting incident. We reverse.

FACTS

On October 5, 1989 at 11:30 P.M., Exilus was driving a 1985 Mazda automobile owned by Athyl Liveral, a friend. Liveral was a passenger in the vehicle and the two were driving from Exilus' home to Liveral's home in Fort Lauderdale. Liveral had driven his car to Exilus' home, picked him up, and they were on the way back to Liveral's home. Exilus was going to drop Liveral at his home and return home with the car because the next day Exilus was going to take Liveral's car to a body shop for repairs as a favor to Liveral.

Driving the vehicle in a westerly direction, Exilus stopped at a stop sign, looked both ways and did not see any other vehicles coming. As he proceeded slowly into the intersection, another car pulled up along side of his. An individual in the passenger seat of the other car got out of the car and asked Exilus if he knew a Haitian guy named Jean that lived in the area. Exilus stopped the vehicle he was driving and looked at the man, but before Exilus had a chance to say anything, the other man pulled open Exilus' car door. Exilus then drove away. As he was doing so, he heard gunshots. He did not close the door before he drove away, because he was afraid of the man. The front and rear windows of the vehicle Exilus was driving were shattered, and a bullet struck Exilus' left leg. Exilus drove to the hospital, where he was admitted. Exilus did not know whether the police ever found the occupants of the other car.

Thereafter, Exilus sought a declaratory judgment determining that he was entitled to personal injury protection coverage under an automobile insurance policy issued by Fortune. Fortune's answer admitted the existence of an insurance policy but asserted that the shooting in which Exilus was injured did not "arise out of the ownership, maintenance or use of a motor vehicle," as required by the policy.

Both Fortune and Exilus moved for summary judgment, and at the hearing, counsel for both sides agreed that there were no material facts in dispute and that the issue presented was one of law. The trial court granted Exilus' motion for summary judgment and held that there was PIP coverage.

LAW

The parties agree that the controlling statute is section 627.736(1), which requires that automobile insurance policies, such as the one involved herein, provide PIP benefits for any "loss sustained ... as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle." Numerous cases have construed the meaning of "arising out of the ownership, maintenance, or use of a motor vehicle" in factual situations involving criminal attacks on individuals in, on, or near an insured vehicle. The cases make it clear that some connection or nexus between the injury and the use of the vehicle is required.

In Government Employees Insurance Co. v. Novak, 453 So.2d 1116 (Fla.1984), the Florida Supreme Court stated that the term "arising out of the use of a motor vehicle," as used in section 627.736(1) should be construed liberally because its function is to extend coverage broadly. Id. at 1119. In Novak, the supreme court, agreeing with our decision in Novak v. Government Employees Insurance Co., 424 So.2d 178 (Fla. 4th DCA 1983), held that a sufficient nexus between the vehicle and the injury existed in that case because the assailant sought the use of the vehicle in question. The court stated:

Construction of the clause "arising out of the use of a motor vehicle" is an easier matter. It is well settled that "arising out of" does not mean "proximately caused by," but has a much broader meaning. All that is required is some nexus between the motor vehicle and the injury. E.g., Government Employees Insurance Co. v. Batchelder, 421 So.2d 59 (Fla. 1st DCA 1982); Indiana Insurance Co. v. Winston, 377 So.2d 718 (Fla. 4th DCA 1979), cert. denied, 388 So.2d 1120 (Fla.1980); Auto-Owners Insurance Co. v. Pridgen, 339 So.2d 1164 (Fla. 2d DCA 1976); National Indemnity Co. v. Corbo, 248 So.2d 238 (Fla. 3d DCA 1971). It is clear that in the present case, as the district court correctly concluded, there was a highly substantial connection between Ms. Novak's use of the motor vehicle and the event causing her fatal injury. Obtaining a ride in or possession of the motor vehicle was what motivated the deranged Endicott to approach and attack the deceased.

Id. at 1119 (emphasis added).

Subsequently, in Hernandez v. Protective Casualty Insurance Co., 473 So.2d 1241 (Fla.1985), the supreme court held that coverage would apply to a motorist stopped for a traffic violation and injured by the police in removing him from his vehicle. The supreme court reiterated that some connection between the use of the vehicle and the injury was required:

We do agree with the proposition reiterated 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." Id. at 497 (citation omitted). The automobile here was, however, more than just the physical situs of petitioner's injury. Petitioner was using the vehicle for the purpose of transportation, which use was interrupted by his apprehension by police officers. It was the manner of petitioner's use of his vehicle which prompted the actions causing his injury. While the force exercised by the police may have been the direct cause of injury, under the circumstances of this case it was not such an intervening event so as to break the link between petitioner's use of the vehicle and his resultant injury. We find these facts sufficient to support the requisite nexus between petitioner's use of his automobile and his injury, thereby allowing him to recover P.I.P. benefits.

Id. at 1243 (emphasis added). The court also noted that ingress and egress from a vehicle were actions connected to its use. Id. ¹

In Reynolds v. Allstate Insurance Co., 400 So.2d 496 (Fla. 5th DCA 1981), a case discussed in Novak and Hernandez, an assailant hiding in the back seat of the insured's vehicle struck and injured the insured, rendering him unconscious. The assailant then drove the vehicle for several miles, and the insured was thrown from the vehicle, causing him further injury. Noting that insurance does not cover every incident or accident that happens in a car, the Fifth District affirmed a judgment for the insurance company. The court stated:

In the absence of effects caused by its movement or ability to move, and circumstances arising from the necessity that its use requires normal ingress and egress to and from it, Padron v. Long Island Insurance Company, 356 So.2d 1337 (Fla. 3d DCA 1978), a vehicle is inherently no different from any other place or object and its existence or use becomes no more than the situs of injuries caused by accidents or intentional acts bearing no causal relationship to its nature as a vehicle....

Id. at 497. In Novak, the supreme court did not disapprove, but rather distinguished Reynolds on the basis that Reynolds did not involve a sufficient nexus between the use of the automobile and the injury:

We do not believe that our holding necessarily implies disapproval of Reynolds v. Allstate Insurance Co., the case cited by the petitioner as being in conflict. We believe the facts of that case make it distinguishable from this one. The decision there turned on the plaintiff's failure to allege facts sufficient to show the nexus between the use of the car and the injuries.

Novak, 453 So.2d at 1119. The Hernandez opinion also distinguished Reynolds, but did not disapprove of its holding.

A review of other cases reflects the manner in which courts have determined whether a sufficient "nexus" exists to provide various forms of automobile insurance coverage. In General Accident Fire & Life Assurance Corp., Ltd. v. Appleton, 355 So.2d 1261 (Fla. 4th DCA), cert. denied, 361 So.2d 830 (Fla.1978), the insured had car trouble and accepted a ride from the driver of another vehicle wherein he was attacked and robbed by two passengers in the vehicle. He sought uninsured motorist coverage because the driver of the vehicle in which he was riding when attacked, was uninsured. We held that there was no uninsured motorist insurance coverage on those facts because Appleton's injuries did not arise out of the ownership, maintenance or use of an uninsured automobile. We recognized that "arising out of" does not require a showing of proximate cause between the injury and the use of the automobile, but that there must be a connection or relation between the two for liability to exist:

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,".... 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...