JOHN ASNIP, APPELLANT,
v.
HARTFORD ACCIDENT & INDEMNITY COMPANY, A FOREIGN CORPORATION, APPELLEE
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Asnip was struck by a hit-and-run vehicle while leaning against a non-owned car he was occupying, insured by Hartford. The trial court denied uninsured motorist and personal injury protection coverage on the ground that Asnip was not "occupying" the vehicle, but the appellate court reversed, holding that leaning against and being in physical contact with the vehicle constituted occupancy as a matter of law.
As a matter of law, Asnip was occupying the vehicle when struck. The policy definition of "occupying" includes being "upon" a vehicle, and physical contact with the car while standing against it satisfies this requirement for coverage purposes.
[1] An insured is "occupying" a vehicle for insurance coverage purposes when physically in contact with it, even if outside the vehicle.
[2] The term "occupying" a vehicle in an insurance policy is defined expansively to include being "in, upon, getting in, on, out or off" the vehicle.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The term, "occupying," is, in turn, defined as "in, upon, getting in, on, out or off" a vehicle.”
Establishes the policy language that is central to the court's interpretation of coverage
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Join FLexlaw to unlock all legal intelligenceAsnip was driving a non-owned Ford insured by Hartford and parked behind Johnson's disabled vehicle. While standing outside his car leaning against it…
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SCHWARTZ, Chief Judge.
Asnip was driving a non-owned Ford insured by Hartford, following a vehicle driven by Johnson, when Johnson’s car broke down and he pulled to the side of the road. Asnip parked behind him. Johnson checked under his hood and then walked back to Asnip’s car. Asnip got out of his vehicle and was leaning against it talking to Johnson when he was struck and injured by a hit-and-run motorist. The trial court entered a declaratory judgment that Hartford’s policy did not provide uninsured motorist or personal injury protection coverage on the ground that Asnip was not “occupying” the vehicle when he was struck. We reverse upon the completely opposite conclusion that, as a matter of law, he was.
The policy definition of an “insured” entitled to UM and p.i.p. coverage includes “[ajnyone ... occupying a covered auto.” The term, “occupying,” is, in turn, defined as “in, upon, getting in, on, out or off” a vehicle. Particularly applying, as required, the most expansive definition of the expression reasonably possible to achieve coverage, M.E. Charlesworth, Ltd. v. Perez, 426 So. 2d 1107 (Fla. 3d DCA 1983) — in fact, without the aid of this tool of construction — it seems clear that Asnip was, at the least, “upon” the car and was therefore “occupying” it when the accident occurred. The well-reasoned decision in Nickerson v. Citizens Mutual Ins. Co., 393 Mich. 324, 224 N.W. 2d 896 (1975) so holds on facts which closely resemble but which, if anything, are more attenuated than these because the putative insured, who had exited a stalled vehicle, was, unlike Asnip, not in physical contact with it at the time of the accident. Indeed, when contact exists, the cases invariably hold that that fact is alone sufficient to render the claimant an occupant. Motor Vehicle Accident Indemnification Corp. v. Oppedisano, 41 Misc.2d 1029, 246 N.Y.S.2d 879 (Sup.Ct.1964) (person pushing vehicle off the road held to be an occupant); Lumberman’s Mutual Casualty Co. v. Norris, 15 Ill.App.3d 95, 303 N.E. 2d 505 (1973) (person standing at the side of the car holding onto the side view mirror held to be an occupant); see also Manning v. Summit Home Insurance Co., 128 Ariz. 79, 623 P. 2d 1235, 1238 (1980); Lokos v. New Amsterdam Casualty Co., 197 Misc. 40, 93 N.Y.S.2d 825 (Mun.Ct.1949), aff'd, 197 Misc. 43, 96 N.Y.S.2d 153 (Sup.Ct.1950) (person standing behind vehicle held to be “occupying” it).
The present conclusion is mandated also by Industrial Fire & Casualty Co. v. Collier, 334 So. 2d 148 (Fla. 3d DCA 1976), cert. denied, 341 So. 2d 1080 (Fla.1976) in which this court held that an individual changing a tire on a vehicle was “occupying” it even under a policy exclusion which, in contrast to coverage, must be narrowly construed. On the other hand, Fidelity & Casualty Co. of New York v. Garcia, 368 So. 2d 1313 (Fla. 3d DCA 1979), cert. denied, 378 So. 2d 344 (Fla.1979) upon which the trial court and Hartford have heavily relied, is not on point. Garcia held only that a passenger who had gotten out of a truck and walked to and across its front Jn the direction of her home was no longer “alighting from” it for coverage purposes. The line of cases which is also cited by the appellee and which is exemplified by Reynolds v. Allstate Ins. Co., 400 So. 2d 496 (Fla. 5th DCA 1981), Novak v. Government Employees Ins. Co., 424 So. 2d 178 (Fla. 4th DCA 1983); and Stonewall Ins. Co. v. Wolfe, 372 So. 2d 1147 (Fla. 4th DCA 1979), cert. denied, 385 So. 2d 762 (Fla.1980), is even more inapposite. These decisions do not concern the present issue of the insured status of a given claimant, but rather the totally distinct one of whether a particular accident arises from the “ownership, maintenance, or use” of a liability-insured vehicle, or its functional equivalent, the one driven by an uninsured motorist. See Brown v. Progressive Mutual Ins. Co., 249 So. 2d 429 (Fla.1971). Here, there is no doubt that Asnip was hurt by the “use” of the phantom, hit-and-run car. For these reasons, the judgment below is reversed for further proceedings consistent herewith, including consideration of Hartford’s remaining policy defense.
Reversed.
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Auto-Owners Ins. Co. v. Above ALL Roofing, LLC, 924 So. 2d 842 (Fla. 2d DCA 2006)…tend beyond the plain language of the Auto-Owners policy. UM coverage has been extended to Class II claimants who were injured while touching or standing in close proximity to the insured vehicle. See, e.g., Asnip v. Hartford Accident & Indem. Co., 446 So. 2d 1121 (Fla. 3d DCA 1984) (holding driver leaning against vehicle when struck by hit-and-run car was at least “upon” the vehicle and thus “occupying” it, where policy defined “occupying” as “in, upon, getting in, on, out or off’ a vehicle); Progressive Am.…
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Dunlap v. United States Auto. Ass'n, 470 So. 2d 98 (Fla. 1st DCA 1985)…may be said to be encompassed within that term is the time and place at which the insured shows “an intention, evidence by an overt act based on that intention, to undertake a new direction or activity”); Asnip v. Hartford Accident & Indemnity Co., 446 So. 2d 1121 (Fla. 3rd DCA 1984) (driver who alighted from non-owned vehicle and was leaning against it while talking to another person when the driver was struck by a car was “upon” the non-owned car from which he had alighted and was therefore “occupying” it w…
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Protective Cas. Ins. Co. v. Hernandez, 450 So. 2d 864 (Fla. 3d DCA 1984)…of a motor vehicle and that there is no requirement that an automobile be the instrumentality of the injury, relying on Novak v. Government Employees Insurance Co., 424 So. 2d 178 (Fla. 4th DCA 1983), and Asnip v. Hartford Accident & Indemnity Co., 446 So. 2d 1121 (Fla. 3d DCA 1984). In Novak the court held that there was coverage where an automobile operator was shot by a stranger after the operator refused to give the stranger a ride. Novak is probably indistinguishable but we choose not to follow it becaus…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Raiford Brown v. Progressive Mut. Ins. Co., 249 So. 2d 429 (Fla. 1971)
- Reynolds v. Allstate Ins. Co., 400 So. 2d 496 (Fla. 5th DCA 1981)
- Stonewall Ins. Co. v. Wolfe, 372 So. 2d 1147 (Fla. 4th DCA 1979)
- Daniel M. Novak for Beverly Ann Novak v. Gov't Emps. Ins. Co., 424 So. 2d 178 (Fla. 4th DCA 1983)
- Fid. & Cas. Co. OF NEW York v. Garcia, 368 So. 2d 1313 (Fla. 3d DCA 1979)
- Indus. Fire & Cas. Ins. Co. v. Collier, 334 So. 2d 148 (Fla. 3d DCA 1976)
- M.E. Charlesworth v. Perez, 426 So. 2d 1107 (Fla. 3d DCA 1983)