Stonewall Ins. Co. v. Wolfe, 77-1589
| Decision Date | 29 June 1979 |
| Docket Number | No. 77-1589,77-1589 |
| Citation | 372 So.2d 1147 |
| Parties | STONEWALL INSURANCE COMPANY, Appellant, v. Todd T. WOLFE, a minor, by and through his natural father, guardian and next friend, Gerald Wolfe, and Gerald Wolfe, Individually, Appellees. |
| Court | Florida District Court of Appeals |
Allan L. Hoffman, West Palm Beach, for appellant.
Larry Klein and Stuart E. Kocha, West Palm Beach, for appellees.
This case involves the application of personal injury protection (PIP) benefits pursuant to an automobile liability insurance policy. The trial court granted summary judgment on the issue of liability for the appellees.
Several boys had been on an overnight camping trip. One of them drove an automobile while the others (one was carrying a gun) rode on the back of the trunk. When the automobile turned a corner the boy carrying the gun fell from the vehicle, rolled in the grass, got up, and then proceeded walking down the roadway toward the vehicle. While so walking he fell to one knee and the gun was accidentally discharged in the direction of the automobile, striking the minor plaintiff in the eye. Claim was made for PIP benefits under the policy covering the minor plaintiff's father's vehicle. The sole question on this appeal is whether the loss sustained arose out of the ownership, maintenance, or use of a motor vehicle. Section 627.736(1), Florida Statutes (1977).
Appellees attempt to sustain the summary judgment on the basis of Section 627.736(4)(d) 1 & 3 which require payment of PIP benefits by the insurer for accidental bodily injury sustained by the owner (or a relative of the owner residing in the same household) While occupying a motor vehicle. Thus, it is appellees' position that mere occupancy of a motor vehicle is all that the statute necessitates in order to activate the insurer's liability for PIP benefits. We reject this reasoning. Subsections (4)(d) 1 & 3 merely provide the circumstances under which an insurer's liability arises and these sections must be read in pari materia with subsection (1) which, in our opinion, is the definition section of the statute and provides us with the intent of the Legislature. There, in requiring and describing personal injury protection benefits, the Legislature makes specific reference to subsection (4)(d) and clearly requires payment "for loss sustained by any such person as a result of bodily injury, sickness, disease, or death Arising out of the ownership, maintenance, or use of a motor vehicle . . ." (Emphasis added).
Under appellees' reasoning the mere occupancy of an automobile would give rise to liability for benefits, whether or not there is a causal connection between the occupancy and the injury. This case is controlled by our opinion in General Acc. Fire and Life, etc. v. Appleton, 355 So.2d 1261 (Fla.4th DCA 1978) wherein this court concluded "that it is not enough that an automobile be the physical situs of an injury or that the injury occur incidentally to the use of...
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