Tuerk v. Allstate Ins. Co., 84-1112
| Decision Date | 16 April 1985 |
| Docket Number | No. 84-1112,84-1112 |
| Parties | 10 Fla. L. Weekly 984 John E. TUERK, Karen J.B. Tuerk, his wife, and Stuart Spencer Wickens, Appellants, v. ALLSTATE INSURANCE COMPANY and Comstock Insurance Company, Appellees. |
| Court | Florida District Court of Appeals |
Dennis G. King, Miami, for appellants.
Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Joseph H. Lowe, Spencer, Taylor & Homer and W. Thomas Spencer, Miami, for appellees.
Before SCHWARTZ, C.J., and HUBBART and JORGENSON, JJ.
This appeal requires us to confront still another dimension in the ongoing controversy regarding the extent of automobile insurance coverage where the insureds are the victims of criminal assaults by unidentified third parties.
At approximately 9:30 p.m., John E. Tuerk and Stuart Spencer Wickens had just left Tuerk's residence and were traveling in Tuerk's dark colored Chevrolet Blazer when they were shot and wounded. Five days later, in the evening, Efrain Paredes, a subject of numerous narcotics investigations who lived one block away from Tuerk and who also owned a dark colored "Blazer-type" vehicle, was shot and killed while traveling in a leased Ford Thunderbird.
Tuerk's primary insurer was Allstate Insurance Company (Allstate), and he had umbrella coverage with Comstock Insurance Company (Comstock). Wickens was insured by Fortune Insurance Company (Fortune). Tuerk, his wife, and Wickens filed suit against Allstate and Comstock seeking a declaratory decree that they had uninsured motorist coverage (UM) and personal injury protection (PIP) with Allstate and Comstock. 1 After discovery was completed, all parties moved for summary judgment on the issue of coverage.
At the summary judgment hearing, deposition testimony was introduced wherein Detective Fraley opined that Tuerk and Wickens were shot because Tuerk's Blazer vehicle was mistakenly identified as Paredes'. 2 Tuerk and Wickens offered only the sketchiest evidence concerning the details of the shooting.
The trial court entered summary final judgment for defendants Allstate and Comstock, finding that the incident sued upon did not arise out of the ownership, maintenance or use of an uninsured motor vehicle and, thus, the Tuerks and Wickens could not recover UM or PIP benefits. The court dismissed the lawsuit with prejudice.
This court, our sister courts, and the Supreme Court of Florida have all recently considered the issue of insurance coverage where an insured is shot while occupying a motor vehicle. See Government Employees Insurance Co. v. Novak, 453 So.2d 1116 (Fla.1984) (); ...
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