Liberty Mut. Ins. Co. v. Weiss, 3D00-420.

• Citation: 790 So.2d 475
• Decision Date: 06 June 2001
• Docket Number: No. 3D00-420.,3D00-420.
• Parties: LIBERTY MUTUAL INSURANCE COMPANY, a foreign corporation, Appellant, v. Caroline WEISS, as Personal Representative of the Estate of Jack J. Weiss, deceased, Appellee.
• Court: Florida District Court of Appeals

790 So.2d 475

LIBERTY MUTUAL INSURANCE COMPANY, a foreign corporation, Appellant, v. Caroline WEISS, as Personal Representative of the Estate of Jack J. Weiss, deceased, Appellee.

No. 3D00-420.

District Court of Appeal of Florida, Third District.

June 6, 2001.

Rehearing and Certification of Conflict Denied August 10, 2001.

O'Connor & Meyers, and David R. Cassetty, for appellant.

Colson Hicks Eidson, and Marc Cooper, Coral Gables; Larson King, for appellee.

Before SCHWARTZ, C.J., and SORONDO, JJ., and NESBITT, Senior Judge.

NESBITT, Senior Judge.

Liberty Mutual Insurance Company (herein, Liberty) appeals a final judgment finding stacked uninsured motorist (herein, UM) insurance coverage in favor of insured, Jack J. Weiss. Caroline Weiss, as Personal Representative of the Estate of Jack J. Weiss, deceased, cross appeals, arguing the trial court's error in certain evidentiary rulings. We reverse the order under review and affirm the cross appeal.

Mr. Weiss was killed when he was struck by an automobile driven by UM William Perez, as Mr. Weiss was walking across S.W. Eighth Street in Miami. Ms. Weiss, as personal representative, submitted a claim for UM benefits to Liberty on a policy issued to: "Intercontinental Properties, Inc., Agent for Royal Trust Tower, Ltd." The claim was denied, and Ms. Weiss brought suit, alleging wrongful death against Perez; and breach of contract, declaratory judgment, and negligent failure to procure insurance against Liberty. Both sides' motions for summary judgment were denied.

The trial court bifurcated the issues of liability and damages. The lower court granted partial summary judgment, finding Perez negligent and reserving the issue of comparative negligence. The parties stipulated that Perez met the statutory definition of a UM. A bench trial was agreed to on the claims for breach of contract and declaratory judgment. The trial court ultimately entered its verdict in the Estate's favor, after determining that decedent was a named insured and that the primary policy stacked UM coverage. We address only that issue we find dispositive, i.e., whether the policy at issue provided coverage for decedent in light of the facts as set out above.

The question whether or not a particular policy covers a certain risk is a question of law. See Central Cold Storage, Inc. v. Lexington Ins. Co., 452 So.2d 1014 (Fla. 3d DCA 1984)

. An unambiguous contract of insurance does not require construction, and must be given effect as written. See Perez v. Michigan Mut. Ins. Co., 723 So.2d 849 (Fla. 3d DCA 1998). The law is well settled that a business auto policy such as the one at issue here does not provide coverage for officers, unless the person is within a covered vehicle. See Travelers Insurance Co. v. Bartoszewicz, 404 So.2d 1053, 1055 (Fla.1981); see also Lampkin v. National Union Fire Ins., Co. of Pittsburgh, 581 So.2d 175 (Fla. 3d DCA 1990)(Automobile salesman who was struck by underinsured vehicle while he was jogging near home was not entitled to underinsured motorist benefits under policy issued to his employer; salesman was not "occupying" the demonstrator vehicle that employer had assigned to him at time of accident); Pearcy v. Travelers Indem. Co., 429 So.2d 1298 (Fla. 3d DCA 1983). In Willingham...