Government Employees Ins. Co. v. Batchelder

• Decision Date: 03 November 1982
• Docket Number: No. AL-446,AL-446
• Citation: 421 So.2d 59
• Parties: GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant, Appellant, v. Gerald F. BATCHELDER and Doris E. Batchelder, Defendants, Appellees.
• Court: Florida District Court of Appeals

Page 59

421 So.2d 59

GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant, Appellant, v. Gerald F. BATCHELDER and Doris E. Batchelder, Defendants, Appellees.

No. AL-446.

District Court of Appeal of Florida First District.

Nov. 3, 1982.

H. Franklin Perritt, Jr. and Gerald W. Weedon, of Marks, Gray, Conroy & Gibbs, Jacksonville, for defendant, appellant.

James T. Terrell, of Brown, Terrell & Hogan, P.A., Jacksonville, for appellees/plaintiffs; Fred M. Abbott, Jacksonville, for defendants, appellees.

WIGGINTON, Judge.

Government Employees Insurance Company (GEICO) appeals from the non-final order of the trial court declaring the Batchelders, defendants in the tort action below, to be covered by a policy of automobile insurance issued them by GEICO, and entitled to be defended by GEICO. We have jurisdiction. Rule 9.130(a)(3)-(C)(iv), Fla.R.App.P. (1982).

The issue raised by GEICO is whether the trial court erred in finding that the injury arose out of the "ownership, maintenance or use of an automobile," thereby bringing it within the policy coverage. We affirm, as the circumstances satisfy the three-prong test set forth in National Merchandise, Inc. v. United Service Automobile Association, 400 So.2d 526 (Fla. 1st DCA 1981).

On October 10, 1980, the plaintiff below suffered a serious eye injury while a passenger in a pickup truck owned by the Batchelders. The injury occurred when a beer bottle exploded, sending fragments of glass throughout the cab of the truck. The driver at the time was the Batchelders' son.

From depositions taken prior to the declaratory judgment, it was revealed that approximately six weeks before the accident, the Batchelders' daughter left two bottles of beer under the seat of the truck. The bottles remained under the seat while the truck was driven on a regular basis to and from work by Mrs. Batchelder. While at work, the truck was parked in an uncovered parking area.

The day before the accident, Mrs. Batchelder drove the truck to work as usual. During the trip, one of the bottles rolled out and hit her on the foot. She put the bottle on the seat where it remained the entire day.

The following day, Mrs. Batchelder again noticed the bottle on the seat, but failed to dispose of it. Instead, she placed it back under the seat, later stating that the bottle was the same one that had been in the truck for the past six weeks.

That night the Batchelders' son and the plaintiff drove the truck to a football game. En route, the plaintiff noticed the bottles rolling out from beneath the seat and was forced to put them back under the seat on at least one occasion. Before arriving at the game, the boys were stopped by a police officer for a traffic violation. As the truck came to a stop, the bottles again rolled out, but when the plaintiff attempted to secure them, one of the bottles exploded, causing the injury to his eye.

Suit was filed against the Batchelders and GEICO. GEICO subsequently denied coverage under the policy and filed a cross claim and declaratory action alleging that there was no coverage and no duty to defend. The trial court found coverage for the accident did exist, plus a concomitant duty to defend. This appeal followed.

GEICO argues that the truck was merely the physical situs of the accident, and the injury therefore did not arise out of the ownership, maintenance or use of the automobile. ¹ GEICO claims the injury clearly did not arise from the "ownership" or the "maintenance" of the vehicle, as those terms have been defined; ² but more specifically, it argues the injury did not arise from the "use" of the vehicle, as "use" is determined under the National Merchandise test.

For an injury to fall within the "use" coverage of a policy, we said in National Merchandise:

"(1) The accident must have arisen out of the inherent nature of the automobile, as such;

"(2) The accident must have arisen within the natural territorial limits of an automobile, and the actual use ... must not have terminated;

"(3) The automobile must not merely contribute to cause the condition which produces the injury, but must itself produce the injury ... (citation omitted)"

400 So.2d at 532. Under the circumstances of the instant case, the first prong has been satisfied. The "inherent use" of a vehicle includes its use to transport or store items, either commercial or personal in nature. ³ Therefore, the trial court did not err in finding that "the transportation of unopened bottles of beer in the Batchelders' vehicle ... was within the scope and inherent nature of the...