Progressive American Ins. Co. v. Tanchuk

• Decision Date: 10 March 1993
• Docket Number: No. 92-3253,92-3253
• Citation: 616 So.2d 489
• Parties: 18 Fla. L. Weekly D664 PROGRESSIVE AMERICAN INSURANCE COMPANY, Appellant, v. Wladimir TANCHUK a/k/a Walter Tanchuk, and Patricia Tanchuk, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 489

616 So.2d 489

18 Fla. L. Weekly D664

PROGRESSIVE AMERICAN INSURANCE COMPANY, Appellant, v. Wladimir TANCHUK a/k/a Walter Tanchuk, and Patricia Tanchuk,

his wife, Appellees.

No. 92-3253.

District Court of Appeal of Florida,

Fourth District.

March 10, 1993.

Rehearing En Banc or Certification Denied April 30, 1993.

Jeffrey A. Blaker of Berger & Shapiro, P.A., Fort Lauderdale, for appellant.

Brian J. Glick of Brian J. Glick, P.A., Boca Raton, for appellees.

GLICKSTEIN, Chief Judge.

This is an appeal by an uninsured motorist insurer from a summary final judgment entered in favor of appellee, a tow truck driver, employed by Rangeline Auto Service and George M. Bobko to drive their tow truck. On the night of July 14, 1988, appellee was called to assist Indrawan Sutantri, whose Toyota was said to have a flat tire. When he got to the scene on Palmetto Park Road appellee found that the vehicle was in a ditch in three feet of water, placed the tow truck in the far right lane, hooked the motorist's Toyota automobile to the tow truck and lifted the Toyota out of the ditch and onto the right lane of the road by means of a remote controlled winch. Appellee then noticed that the Toyota had two flat tires and therefore could not be towed, but would have to be carried by flat bed. He went to the cab of the tow truck, opened the door half way, and with a hand on the door reached for the microphone of the radio to call his employer. As he did this he heard screams from the Toyota, which was occupied by Mr. Sutantri. He dropped the microphone and ran back to see what was going on and saw the lights of another car. A Pontiac was heading straight for the Toyota. When the Pontiac struck the Toyota, the Toyota was pushed toward where appellee was standing, between the rear of the tow truck and the rear of the Toyota. The Pontiac clipped appellee and threw him forty feet into the air. He landed in the ditch. The cable of the tow truck hit appellee in the left arm. Appellee thought he was touching the cable when the Pontiac hit. The Toyota was pushed past the tow truck by the impact and was back in the ditch. After hitting the Toyota and clipping appellee the Pontiac hit the back of the tow truck. All of this happened in a matter of seconds. Appellee remained conscious at all times pertinent.

Learning that the Pontiac was uninsured, appellee filed a declaratory action against appellant, the insurer of the tow truck for uninsured motorist benefit, which filed a summary judgment motion, based on the contention that as a Class II insured appellee had to be occupying the tow truck at the time of the accident to be eligible for uninsured motorist benefits, and that appellee was not occupying the tow truck at the time.

Appellee filed a cross motion for summary judgment, maintaining he was at times pertinent occupying the tow truck. Liberty Mutual, appellee's own auto insurer, joined the declaratory judgment suit, and made much the same assertions as appellee. The trial court granted appellee's cross motion, holding that he was entitled to uninsured motorist benefits under the policy purchased by his employers from appellant. We affirm.

This court has previously held one to be an occupant when blown out of the back of a truck and injured when falling to the roadway. See United States Fidelity & Guar. Co. v. Daly, 384 So.2d 1350, 1351 (Fla. 4th DCA 1980). There we held:

While we are unable to cite any prior decision which is directly in point with our view of "occupying," there is ample authority for extending occupancy beyond physical presence in the vehicle in voluntary self-removal or alighting cases. Industrial Fire and Casualty Insurance Company v. Collier, 334 So.2d 148 (Fla. 3d DCA 1976); Nickerson v. Citizens Mutual Insurance Co., 393 Mich. 324, 224 N.W.2d 896 (1975); Stoddard v. "Aid" Insurance Co. (Mutual), 97 Idaho 508, 547 P.2d 1113 (1976); Nelson v. Iowa Mutual Insurance Company, 163 Mont. 82, 515 P.2d 362 (1973); Whitmire v. Nationwide Mutual Insurance Company, 254 S.C. 184, 174 S.E.2d 391 (1970). See also, Annot., 42 A.L.R.3d 501 (1972); 19 A.L.R.2d 513 (1951). [Emphasis supplied.]

Our companion court's decision in Industrial Fire and Casualty Insurance Co. v. Collier, 334 So.2d 148 (Fla. 3d DCA 1976), involved an insured who was injured when he suffered a flat tire, stopped and was injured while preparing to change the flat tire when his vehicle was struck by another vehicle just when he was removing the spare from his jacked-up vehicle. The third district held that the insured was "occupying" his vehicle and its opinion, as ours, contained a string cite of additional cases.

The decisions of other states for the proposition of "occupying" a vehicle are annotated in Annotation, Automobile Insurance: When is a Person "Occupying" an Automobile Within Meaning of Medical Payments Provision, 42 A.L.R.3d 501 (1972), as our earlier decision cited. This is a case of "occupying" because the policy definition of "occupying" is "in, on, getting into, off or out of."

"Enteri...