Willingham v. Travelers Ins. Co., 85-887

• Decision Date: 11 February 1986
• Docket Number: No. 85-887,85-887
• Citation: 483 So.2d 778,11 Fla. L. Weekly 387
• Parties: 11 Fla. L. Weekly 387 Bennie Lee WILLINGHAM, Appellant, v. TRAVELERS INSURANCE COMPANY, a foreign corporation, Appellee.
• Court: Florida District Court of Appeals

Page 778

483 So.2d 778

11 Fla. L. Weekly 387

Bennie Lee WILLINGHAM, Appellant, v. TRAVELERS INSURANCE COMPANY, a foreign corporation, Appellee.

No. 85-887.

District Court of Appeal of Florida Third District.

Feb. 11, 1986.

Rehearing Denied March 19, 1986.

Mark Marks and Gary Marks, North Miami, for appellant.

James O. Nelson and Lorraine S. Solomon, Miami, for appellee.

Before BARKDULL, NESBITT and FERGUSON, JJ.

FERGUSON, Judge.

Plaintiff made a claim for benefits against his employer's policy, issued by Travelers Insurance Company, for injuries sustained while operating the employer's vehicle outside the state of Florida. The policy provides Personal Injury Protection (PIP) for any person occupying the insured motor vehicle while in the state of Florida, but limits coverage to the named insured, Suave Shoe Corporation, or a relative of the named insured, as to claims arising from accidents occurring outside the state. Judgment was entered for defendant/insurer on a finding that plaintiff was not covered for the out-of-state accident.

In this appeal, plaintiff claims that there is an ambiguity in the policy which should be construed in favor of coverage. He contends specifically that it makes no sense to hold that the "corporate" entity is the "named insured" entitled to receive PIP benefits when the corporate vehicle is operated outside the state, reasoning that a corporation cannot be physically injured or incur medical expenses or lost wages. Vehicles are not operated by the corporate entity, argues plaintiff, but by its employees, agents or officers.

In Travelers Insurance Co. v. Bartoszewicz, 404 So.2d 1053, 1055 (Fla.1981), relied upon by defendant, the supreme court construed a similar policy adversely to the employee:

It is not unreasonable that the parties would declare the corporation the named insured without necessarily meaning to include the employees.

But in additional language, which we think critical to a rational conclusion, the court went on to note that anyone who is injured when struck by or while occupying a company car and who is not required to have his own PIP coverage will be insured. If naming the corporation as beneficiary under PIP provisions of the policy does not necessarily mean that the employees are covered, then, in properly interpreting the contract, the court is obligated to consider the entirety of the contract, e.g., whether the employees are required to maintain separate coverage. See Bartoszewicz. Thus, a further inquiry which must be made in this case is whether the plaintiff was required to maintain his own PIP coverage.

Assuming that an employee is not required to maintain separate PIP coverage, and would otherwise be covered, another issue arises which was not present in Bartoszewicz, i.e., whether an insurer who issues PIP coverage along with a comprehensive business owner's policy in accordance with Florida law may limit the PIP coverage to in-state accidents. This is a question which the trial court may be called upon to resolve.

Reversed and remanded for further proceedings.

BARKDULL, J., concurs.

NESBITT, Judge (specially concurring):

I would construe the policy so that the "named insured" (Suave Shoe Corporation) would include, for the limited purpose of determining PIP coverage in an out-of-state accident, an employee operating the corporation's automobile within the course and scope of his employment. ¹

The general rule is that ambiguities or equivocalities in an insurance contract are strictly construed against the insurer and liberally construed in favor of finding coverage for the insured. Travelers Insurance Co. v. Bartoszewicz, 404 So.2d 1053 (Fla.1981); Stuyvesant Insurance Co. v. Butler, 314 So.2d 567 (Fla.1975); 30 Fla.Jur.2d Insurance § 406 (1981). I would find that since the policy in the present case purports to provide PIP coverage for out-of-state accidents only for the corporate entity as the named insured, ² and since a corporate entity is incapable of sustaining personal injury, an ambiguity exists, and naming the corporate entity as the named insured must include, for the limited purpose of determining PIP coverage for out-of-state accidents, employees of the corporation operating the insured automobile within the course and scope of their employment.

I find the supreme court's decision in Bartoszewicz to be distinguishable on this point. In Bartoszewicz, the supreme court held that the PIP policy provisions involved in that case, which named the corporate entity as the named insured, did not include employees of the corporation as named insureds. The court's reasoning for its holding was:

It is not unreasonable that the parties would declare the corporation the named insured without necessarily meaning to include the employees.[ ³ It is obvious that benefits are conferred by naming the corporation alone, because anyone ...