Reynolds v. Allstate Ins. Co., 80-271
| Decision Date | 27 May 1981 |
| Docket Number | No. 80-271,80-271 |
| Citation | 400 So.2d 496 |
| Parties | Robert REYNOLDS, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee. |
| Court | Florida District Court of Appeals |
Maher, Overchuck & Langa, Orlando, and Larry Klein, West Palm Beach, for appellant.
Janet R. DeLaura of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Rockledge, for appellee.
This case involves the sufficiency of allegations in a complaint to allege that certain injuries of appellant arose out of the use of his automobile.
Appellant, as insured, sued his insurance company, the appellee, alleging that when he got into his insured automobile an unidentified assailant, lurking in the back seat, struck and injured appellant rendering him unconscious. The complaint further alleges that appellant and his automobile were driven several miles from the place of the assault where appellant was thrown or otherwise ejected from his vehicle causing him further injury. The trial court ruled these allegations were insufficient to allege that appellant suffered bodily injuries arising out of the ownership, maintenance or use of his motor vehicle within the meaning of section 627.736(1), Florida Statutes (1979), relating to the personal injury protection benefits and of section 627.727(1), Florida Statute (1979), relating to uninsured motorist provisions of his automobile insurance policy and dismissed the complaint.
On appeal appellant first contended his vehicle was moving when he was thrown or ejected from it. When appellee pointed out that the complaint does not allege that the vehicle was moving, appellant replied (a) that fact is a proper inference to be drawn (b) that it made no difference, and (c) that the complaint should not be dismissed with prejudice merely because it left out one word. We cannot agree with appellant. The facts alleged are insufficient without that one word and essential allegations must be alleged not inferred. It is the self-powered and mobile nature of a vehicle that makes it a dangerous instrumentality and is largely the basis for the distinctive law relating to it. The movement of a vehicle makes it capable of being used to inflict injury, Leatherby Insurance Company v. Willoughby, 315 So.2d 553 (Fla.2d DCA 1975), and of adding its velocity to an object thrown from it to cause or contribute to injuries, Valdes v. Smalley, 303 So.2d 342 (Fla.3d DCA 1974), cert. dismissed, 341 So.2d 975 (Fla.1976), and of causing wind movement to dislodge a passenger, U.S.F.&G. Co. v. Daley, 384 So.2d 1350 (Fla.4th DCA 1980). In the absence of effects caused by its movement or ability to move, and circumstances arising from the necessity that its use requires normal ingress and egress to and from it, Padron v. Long Island Insurance Company, 356 So.2d 1337 (Fla.3d DCA 1978), a vehicle is inherently no different from any other place or object and its existence or use becomes no more than the situs of injuries caused by accidents or intentional acts bearing no causal relationship to its nature as a vehicle, as in Stonewall Insurance Company v. Wolfe, 372 So.2d 1147 (Fla.4th...
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