Fowler v. State Farm Mut. Auto. Ins. Co., 88-462

• Decision Date: 08 September 1989
• Docket Number: No. 88-462,88-462
• Parties: 14 Fla. L. Weekly 2108 Virginia Perry FOWLER, as Personal Representative of the Estate of Ferman Ellis Fowler, Deceased, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Appellee.
• Court: Florida District Court of Appeals

Page 830

548 So.2d 830

14 Fla. L. Weekly 2108

Virginia Perry FOWLER, as Personal Representative of the Estate of Ferman Ellis Fowler, Deceased, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Appellee.

No. 88-462.

District Court of Appeal of Florida,

First District.

Sept. 8, 1989.

Joshua A. Whitman, of Lewis, Paul, Isaac & Castillo, Jacksonville, for appellant.

Jack W. Shaw, Jr., and J. Stephen O'Hara, Jr., of Mathews, Osborne, McNatt & Cobb, Jacksonville, for appellee.

ON REHEARING

Upon consideration of appellee's motion for rehearing, and the Florida Supreme Court's decision in Race v. Nationwide Mutual Fire Ins. Co., 542 So.2d 347 (Fla.1989), we grant rehearing, withdraw our prior opinion in this case, and substitute the following opinion.

WENTWORTH, Judge.

Appellant seeks review of a final summary judgment entered in a declaratory judgment action brought to determine whether appellee State Farm Mutual Automobile Insurance Company had a duty to defend its insured, James Wayne Ortagus, against claims made by appellant, and whether appellant, the wife and personal representative of the estate of the deceased victim, was entitled to benefits under the insured's policy. The trial court found as a matter of law that the policy did not provide liability coverage for the insured's fatal shooting of appellant's husband on grounds that the shooting was intentional rather than accidental, and did not arise out of the ownership, maintenance, or use of the insured's vehicle. We agree that, in light of the supreme court's pronouncement in Race v. Nationwide Mutual Fire Ins. Co., 542 So.2d 347 (Fla.1989), there was an insufficient connection between the insured's vehicle and the victim's injuries to effect coverage under the terms of the policy.

A jury convicted James Wayne Ortagus of manslaughter with a firearm in the shooting death of appellant's husband, Ferman Ellis Fowler. The conviction was reversed on appeal. Ortagus v. State, 500 So.2d 1367 (Fla. 1st DCA 1987). A second jury again convicted Ortagus of the same crime. An appeal of that conviction was per curiam affirmed by this court. Ortagus v. State, 528 So.2d 1188 (Fla. 1st DCA 1988). Appellant instituted a wrongful death action against Ortagus, alleging that Ortagus was negligent in the shooting death of her husband. Appellant made claims for the bodily injury liability insurance coverage issued to Ortagus by appellee State Farm. State Farm instituted an action seeking a declaratory decree that its policy did not provide coverage for the wrongful death claim against Ortagus, and that it had no duty to defend Ortagus in that action.

The incident giving rise to the manslaughter conviction and wrongful death claim occurred in the parking lot of a pizzeria. The testimony of appellant, Mrs. Fowler, indicated that as her husband drove his vehicle into the parking lot, she observed Ortagus pulling his pickup truck out of a parking space. Ortagus was looking over his shoulder as he backed out, but apparently did not see or acknowledge the Fowler vehicle. Mrs. Fowler stated that she warned her husband that Ortagus was not watching. Mr. Fowler hesitated, continued moving forward, did not stop and then sounded his horn. Ortagus turned around, saw the Fowlers, smiled at them and motioned them into a parking space in front of the Ortagus' truck. Ortagus' truck was next seen approximately 10 to 12 feet behind the parked Fowler vehicle with the driver's side of the truck facing the back of the Fowler vehicle. Ortagus was then described as sitting in the truck and staring at the occupants of the Fowler vehicle. Mr. Fowler got out of his vehicle and walked up to the truck, asking Ortagus if he had a problem. Ortagus' testimony indicated that he did not intend to shoot Fowler, but responded to Fowler's threats to drag him out of his truck by drawing his gun.

An eyewitness and companion of the Fowlers testified that he saw Ortagus lift a gun up in his hand and state, "Don't make me do this." A single shot went off, and Mrs. Fowler then saw her husband clutching his chest. The eyewitness testified that he watched Ortagus shoot Fowler one time in the chest. Ortagus left the scene in his truck. Both men were alleged to have been drinking that afternoon.

Ortagus testified in the criminal proceedings that a stranger had rushed up to his truck calling out, "Do you have a problem," and had threatened him. Ortagus testified that he was frightened by the stranger, who was extremely large and appeared to be on drugs or drinking. He stated he shot Fowler when Fowler reached inside the truck to grab him. Ortagus testified that he had a confrontation with the Fowler vehicle, which caused him to stop as he was pulling out of his parking space. Although the vehicles never collided, they were said to have come as close as three feet to each other. Ortagus testified that he had no intentions of shooting anyone.

The policy under which Ortagus was insured provided:

We will:

1. Pay damages...