West American Ins. Co. v. Lovett
| Decision Date | 24 December 1987 |
| Docket Number | No. 87-755,87-755 |
| Citation | 13 Fla. L. Weekly 2,519 So.2d 39 |
| Parties | 13 Fla. L. Weekly 2 WEST AMERICAN INSURANCE COMPANY, Appellant, v. Joy M. LOVETT, etc., Appellee. |
| Court | Florida District Court of Appeals |
J. David Walsh of Cameron, Marriott, Walsh & Hodges, P.A., Daytona Beach, for appellant.
Anthony I. Provitola, P.A., Deland, for appellee.
James Aaron Lovett, Jr., was operating, with permission of the owner, a pickup truck with uninsured motorist (UM) coverage on a highway when he came upon and passed the scene of a hit-and-run accident involving a wrecked bicycle and a fatally injured bicyclist. The pickup truck ran over bicycle debris, some of which became imbedded in the pickup truck tires. Mr. Lovett stopped the pickup truck off the highway about two hundred feet past the hit-and-run accident scene, got out of the pickup truck, and had walked about one hundred feet on the grass alongside the highway back toward the injured bicyclist when Mr. Lovett was himself struck and fatally injured by an uninsured motor vehicle which had swerved off the road to avoid the bicycle wreckage.
Appellee, Mr. Lovett's personal representative, brought a law action against appellant insurer claiming Mr. Lovett's estate and dependents were entitled to UM coverage benefits under the owner's insurance policy on the pickup truck. On the stipulated facts, the trial court found for the personal representative and against the insurer, which insurer appeals. We reverse.
Because Mr. Lovett was not a family member residing with the owner of the pickup truck, 1 the UM policy provided Mr. Lovett coverage only if he were a person "occupying" the covered vehicle. On the stipulated facts, as a matter of law, Lovett was not occupying the pickup truck at the time of the accident causing his bodily injuries and death. See, e.g., Davis v. Fireman's Fund Insurance Co., 463 So.2d 1191 (Fla. 2d DCA), rev. denied, 471 So.2d 43 (Fla.1985); State Farm Mutual Automobile Insurance Co. v. Yanes, 447 So.2d 945 (Fla. 3d DCA 1984); Velasquez v. American Manufacturers Mutual Insurance Co., 387 So.2d 427 (Fla. 3d DCA 1980); Fischer v. Aetna Insurance Co., 65 Misc.2d 191, 317 N.Y.S.2d 669, affirmed, 37 A.D.2d 917, 325 N.Y.S.2d 1012 (1971).
The personal representative urges that Mr. Lovett was obligated by statute to stop and render aid to the injured bicyclist, and that this court therefore should find Lovett to have been occupying the pickup truck while he walked back towards the bicyclist in discharge of his duty. See §§ 316.027 and 316.062(1), Fla.Stat. We reject this argument. The fact some of the...
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