ALLSTATE INSURANCE COMPANY, A FOREIGN CORPORATION, APPELLANT,
v.
ROBERT GILLESPIE, JOHN J. STEWART, JR., M.D., AND INDEPENDENT FIRE INSURANCE COMPANY, A FOREIGN CORPORATION, APPELLEES; AND ROBERT GILLESPIE, CROSS-APPELLANT, V. JOHN J. STEWART, JR., M.D., CROSS-APPELLEE

Fla. 2d DCA | 1984-09-12
No. 83-1642
DANAHY and CAMPBELL, JJ., concur.
455 So. 2d 617 Florida District Court of Appeal, Second District (1984) Caution
Cited by 27 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The court held that the automobile insurance policy provided coverage and a duty to defend because the incident, where the insured was attacked after a traffic dispute, had a sufficient nexus to the use of the insured vehicle.


Headnotes

[1] An automobile insurance policy covering claims "arising out of the ownership, maintenance, or use of a motor vehicle" requires a nexus between the automobile and the inju…

[2] The phrase "arising out of the use of a motor vehicle" in an insurance policy should be liberally construed to effect broad coverage.

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

Facts & Procedural History

The insured driver was stopped at a red light when another driver approached his car on foot and began assaulting him. During a struggle over a gun th…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
RYDER, Chief Judge.

RYDER, Chief Judge.

In the recent case of Government Employees Insurance Co. v. Novak, 453 So. 2d 1116 (Fla.1984), our supreme court addressed the question of an automobile insurer’s liability for injuries “arising out of the ownership, maintenance, or use of a motor vehicle.” Novak held that when a driver was attacked and shot while sitting in a car by a person to whom she refused entry, she was entitled to personal injury protection benefits under the insurance policy covering the automobile. The court found a sufficient causal connection between the use of the automobile and the driver’s injuries. We are today confronted with yet another factual variation of a claim for injuries allegedly arising from the use of an automobile.

Although the parties disputed what happened, there is substantial evidence in the record to support the trial judge’s findings that the testimony of appellee, John J. Stewart, Jr., and of an uninterested witness, Ronald Collmeyer, was credible and that the testimony of appellee/cross-appel-lant Robert Gillespie, was not credible. Strawgate v. Turner, 339 So. 2d 1112 (Fla.1976). Stewart testified that he was in his automobile stopped at a red traffic light when Gillespie approached him on foot and began assaulting him. Gillespie testified that although Stewart had cut off his vehicle in traffic, when he initially approached Stewart’s vehicle he was merely offering aid to Stewart whom he thought to be a disabled motorist.

However, Mr. Collmeyer testified he observed the acts of the parties and overheard their voices during the Gillespie-Stewart confrontation. Mr. Collmeyer related that Gillespie was shouting at Stewart calling him a “son-of-a-bitch” and other “names.” Gillespie, according to Collmeyer, ordered Stewart to get out of the car and fight like a man. During this time, Gillespie attempted to hit Stewart through an open door window. Collmeyer further testified that Stewart also attempted to drive his car through the traffic light but was blocked by cross traffic. Stewart then moved over in the seat to avoid Gillespie and raised the window. Thereafter, Gillespie further attempted to strike Stewart taking advantage of an open sun roof. Stewart was unsuccessfully attempting to repel the attack when he took a revolver from the car’s glove compartment and, during a struggle over the gun, fired it several times, injuring Gillespie. Stewart testified that he fired the gun to frighten Gillespie rather than harm him.

Gillespie sued Stewart for damages stemming from his injuries. In a separate action, now before this court, Allstate Insurance Company, Stewart’s automobile liability insurer, asked the court to declare whether its policy provided coverage in connection with the incident. The policy covered “claims for accidents arising out of the ownership, maintenance or use, loading or unloading” of the insured automobile. The policy also promised to defend the insured if sued.

After a nonjury trial, the trial judge ruled that the use of Stewart’s automobile was inexorably tied to the incident at issue, that Stewart was covered under Allstate’s policy, and that he was entitled to a defense by Allstate. Allstate appeals from that ruling.

Allstate argues, relying on Florida Farm Bureau Insurance Co. v. Shaffer, 391 So. 2d 216 (Fla. 4th DCA 1980), petition for review denied, 402 So. 2d 613 (Fla.1981), that the incident did not arise out of the use of Stewart’s automobile, therefore, Stewart is not covered under the policy. It is well established that for the insurance coverage to apply it is not necessary that the use of automobile proximately cause the injury but rather that there be a nexus between the automobile and the injury. Novak; Government Employees Insurance Co. v. Batchelder, 421 So. 2d 59 (Fla. 1st DCA 1982); Auto-Owners Insurance Co. v. Pridgen, 339 So. 2d 1164 (Fla. 2d DCA 1976).

The inquiry should be whether the attack arose out of, or flowed from, the use of the vehicle. Novak (quoting Novak v. Government Employees Insurance Co., 424 So. 2d 178, 180 (Fla. 4th DCA 1983)). Being mindful of the rule that the phrase “arising out of the use of a motor vehicle” should be liberally construed to effect broad coverage, Novak; Valdes v. Smalley, 303 So. 2d 342 (Fla. 3d DCA 1974), cert. dismissed, 341 So. 2d 975 (Pla.1976), we agree with the trial judge that the incident was, indeed, inexorably tied to Stewart’s use of his automobile. Gillespie became enraged because of the manner in which Stewart drove his car, which precipitated and led to Gillespie’s attack on Stewart. Surely, this is certainly sufficient nexus between the car and the injury.

Although the Fourth District’s decision in Shaffer gives us pause, Shaffer relied on foreign law, Nationwide Mutual Insurance Co. v. Knight, 34 N.C. App. 96, 237 S.E. 2d 341 (1977), while we are guided by our supreme court’s teachings in Novak. We also note that the Shaffer court denied coverage when the insured was the aggressor. In the ease sub judice, however, as in Novak, the insured was the non-aggressor and victim of an attack.

As to Allstate’s second point on appeal, we find substantial evidence in the record to support the trial court’s ruling. As to Allstate’s third point on appeal, the issue of whether Allstate is liable for any punitive damages which may be awarded to Gillespie is not properly before this court at this time. There has been no final resolution of Gillespie’s action against Stewart and no award of any damages.

Gillespie cross-appeals, claiming that the trial court’s judgment is void as to him because the cause was not at issue under Florida Rule of Civil Procedure 1.440(a) at the time of trial.

We find no merit in this point. Although Gillespie’s motion to dismiss Allstate’s complaint was unresolved at the time of trial, Gillespie was served with two motions to set the case for trial and two orders setting the trial dates. Gillespie never objected to the motions nor sought relief from the orders. Gillespie also failed to appear either in person or through counsel at trial. In addition, he never sought a hearing on his motion to dismiss. A litigant may not sit on his hands, fail to voice his objections, and then claim prejudice when a final judgment is entered which may adversely affect him.

Furthermore, he may not raise his objections for the first time on appeal. Procedural irregularities to which no objection is made are waived. Liberty Mutual Insurance Co. v. Dilenge, 312 So. 2d 251 (Fla. 3d DCA 1975); Marsh v. Sarasota County, 97 So. 2d 312 (Fla. 2d DCA 1957), cert. denied, 101 So. 2d 816 (Fla.1958).

In summary, we affirm in all respects the lower court’s judgment, holding that there is competent, substantial evidence in the record and law to support it. We hold that, under these facts, Allstate’s policy provides coverage to Stewart and Allstate has the duty to defend Stewart in the action brought by Gillespie and any other actions stemming from the incident in question. We also hold that Gillespie’s cross-appeal is without merit.

AFFIRMED.

DANAHY and CAMPBELL, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (14 total)

  • Rodger H. Bennett v. Cont'l Chems., Inc., 492 So. 2d 724 (Fla. 1st DCA 1986)
    …ity to file a motion before the notice. Primarily, appellee notes that appellant did not object when the hearing date was cleared with his office or move to strike the notice from the court’s calendar, citing Allstate Insurance Company v. Gillespie, 455 So. 2d 617 (Fla. 2d DCA 1984), and Davis v. Hagin, 330 So. 2d 42 (Fla. 1st DCA 1976). Appellee maintains that appellant had ample notice of the hearing, and adds the injunction issue was ripe, with none of the pending motions being directed to the complaint.…
  • Race v. Nationwide Mut. Fire Ins. Co., 542 So. 2d 347 (Fla. 1989)
    …16 (Fla.1984), and Hernandez v. Protective Casualty Insurance Co., 473 So. 2d 1241 (Fla.1985), and the decisions of the Second and Fourth Districts in Halpin v. Hilderbrand, 493 So. 2d 75 (Fla. 4th DCA 1986), and Allstate Insurance Co. v. Gillespie, 455 So. 2d 617 (Fla. 2d DCA 1984). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The question presented is whether petitioners (“Race”) may recover under the uninsured motorist (“UM”) provision of their automobile insurance policy for injuries received fro…
  • Pena v. Allstate Ins. Co., 463 So. 2d 1256 (Fla. 3d DCA 1985)
    …y so, discernible relationship to the use of the car has indeed existed. See Fortune Ins. Co. v. Ferreiro, 458 So. 2d 834 (Fla. 3d DCA 1984) (claimant shot by driver of vehicle attempting to force his truck off road); Allstate Ins. Co. v. Gillespie, 455 So. 2d 617 (Fla. 2d DCA 1984) (claimant injured in assault arising from argument over insured’s driving). But, in my view, there is no nexus whatever present in this case. I am singularly unimpressed with the majority's attempt to create one out of the whole…

Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited (12 total)

View all 12 cited authorities →

Full citator, related cases, and AI research tools

Open in FLexlaw