General Acc. Fire & Life Assur. Corp., Ltd. v. Appleton
| Decision Date | 14 March 1978 |
| Docket Number | No. 77-468,77-468 |
| Citation | 355 So.2d 1261 |
| Parties | GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION, LTD., Appellant, v. John APPLETON, Appellee. |
| Court | Florida District Court of Appeals |
Wallace W. Tudhope of Smalbein, Eubank, Johnson, Rosier & Bussey, Orlando, for appellant.
Michael Maher, of Maher & Overchuck, P. A., Orlando, for appellee.
General Accident Fire and Life Assurance Corporation, the defendant in the trial court, seeks review of a partial summary judgment in favor of its insured, John Appleton. Appleton claims damages under the uninsured motorist provision of his automobile liability insurance policy. General Accident admits that it extended uninsured motorist coverage to Appleton but denies liability, contending that it agreed only "to pay all sums which the insured . . . shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury . . . sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile . . . ." As will be explained, we conclude that Appleton is not entitled to recovery from his insurance company under the uninsured motorist coverage of his policy.
The facts are not in dispute. At 2:00 a. m. on the night in question, after spending some time in a bar, Appleton started to drive himself home in his automobile. Almost immediately one of his tires blew out, but he was able to drive to a nearby service station. There he discovered that all of his tires had been slashed and he was told by the service station attendant that he could not get replacement tires that night. About that time three men drove into the station. The driver offered to give him a ride home. At first Appleton said no, that he would take a cab, but after further conversation he changed his mind and left the service station in the automobile with the three men. As the automobile was being driven on the highway, the two men who were passengers in the car attacked and robbed him. He passed out and remembers nothing further until some time later when he woke up in a ditch by the side of the road. The three men in the car were subsequently arrested and prosecuted. The driver was an uninsured motorist.
In support of his contention that the bodily injury suffered by him resulted from an accident arising out of the ownership, maintenance or use of an uninsured automobile, Appleton relies upon Leatherby Insurance Co. v. Willoughby, 315 So.2d 553 (Fla.2d DCA 1975). In Leatherby the question was whether an insured under an uninsured motorist clause may recover from his own carrier because of injuries resulting from an intentional wrong by an uninsured motorist. In that case an uninsured motorist intentionally drove his truck into the plaintiff. The court acknowledged the holdings of earlier cases involving ordinary liability coverage, that public policy mandates that an intentional tort is not an accident because one ought not be permitted to indemnify himself against his intentional wrongs, but the court noted that under uninsured motorist coverage the innocent injured party, and not the intentional tort-feasor, is the insured. In that light, the court held the injury to be an accident. We do not quarrel with the holding in Leatherby. From the insured's viewpoint, he was the victim of an accident, regardless of whether the truck was intentionally or negligently driven into him, and unquestionably his injury arose out of the use of an uninsured motor vehicle.
A different situation is presented in Appleton's case. His injury was caused not by an automobile but by the fists of the criminals who assaulted him. True, the assault took place inside an uninsured automobile, but the automobile was only the physical situs of the attack, not the instrumentality of the assault as in Leatherby.
In addition to Leatherby, we have considered two other decisions by...
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Wausau Underwriters Ins. Co. v. Howser
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