SANDRA DAVIS, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF NEIL ALLEN DAVIS, DECEASED, APPELLANT,
v.
FIREMAN'S FUND INSURANCE COMPANY, APPELLEE
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A personal representative of a tow truck operator killed by an uninsured motorist while changing a tire on a wrecker sought uninsured motorist benefits. The court affirmed the trial court's declaratory judgment that the deceased was not "occupying" the wrecker at the time of his death, and therefore was not entitled to benefits under the policy's uninsured motorist coverage.
The deceased was not "occupying" the wrecker when he was struck and killed, and therefore was not entitled to uninsured motorist benefits. The policy's definition of "occupying" as "in, upon, getting in, on, out or off" did not extend to a person working outside the vehicle on the ground.
[1] An insurance policy's plain language must be given its ordinary meaning when unambiguous.
[2] The term "occupying" in an insurance policy, defined as "in, upon, getting in, on, out or off," requires a more direct physical relationship with the vehicle than merely…
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Join FLexlaw to unlock all legal intelligence“When the language of an insurance contract is unambiguous, as we believe it is here, the language must be given its plain, ordinary, and popular meaning, the same as any other contract.”
Establishes the interpretive standard for unambiguous insurance policy language
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Join FLexlaw to unlock all legal intelligenceNeil Allen Davis, a tow truck operator for Gillette Auto Center, was struck and killed by an uninsured motorist while changing the rear tire on the pa…
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PER CURIAM.
Davis is the personal representative of the estate of Neil Allen Davis, a tow truck operator who was struck and killed by an uninsured motorist while changing a tire on a disabled vehicle on Interstate 275 in Tampa, Florida. Gillette Auto Center had expressly consented to have the deceased use their wrecker. At the time of the accident, the deceased was outside the wrecker changing the rear tire on the passenger side of the vehicle. On these facts the trial court entered a declaratory judgment in favor of Fireman’s Fund, Gillette’s insurer, finding that the deceased was not entitled to uninsured motorist benefits as he was not “occupying” the wrecker owned by Gillette Auto Center when he was killed. We affirm.
The uninsured motorist section of Gillette’s policy defines an insured as “anyone ... occupying a covered auto.” The term “occupying” is defined as “in, upon, getting in, on, out or off.” When the language of an insurance contract is unambiguous, as we believe it is here, the language must be given its plain, ordinary, and popular meaning, the same as any other contract. Carter v. Peninsular Fire Insurance Co., 411 So. 2d 960 (Fla. 3d DCA 1982). Even applying, as we must, the most liberal interpretation of the language possible to achieve coverage, M.E. Charlesworth, Ltd. v. Perez, 426 So. 2d 1107 (Fla. 3d DCA 1983), we simply cannot say that the deceased was “occupying” the wrecker when he was struck and killed. See Testone v. Allstate Insurance Co., 165 Conn. 126, 328 A. 2d 686 (1973) (wrecker operator, who was injured when a disabled car was struck by an uninsured motorist after wrecker had lifted the car and who, at the time of the accident, was preparing to enter the car, was not “in or upon, or entering into or alighting from” the wrecker and, therefore, not “occupying” the wrecker so as to fall within his employer’s uninsured motorist coverage).
Affirmed.
DANAHY, A.C.J., LEHAN, J., and BOARDMAN, EDWARD F., (Ret.) J., concur.
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Auto-Owners Ins. Co. v. Above ALL Roofing, LLC, 924 So. 2d 842 (Fla. 2d DCA 2006)…death that occur while the insured is occupying the vehicle. Alamo Rent-A-Car v. Hayward, 858 So. 2d 1238, 1241-42 (Fla. 5th DCA 2003). See also Mullis v. State Farm Mut. Auto. Ins. Co., 252 So. 2d 229 (Fla.1971); Davis v. Fireman’s Fund Ins. Co., 463 So. 2d 1191 (Fla. 2d DCA 1985); Fenwick v. Am. States Ins. Co., 520 So. 2d 98-99 (Fla. 4th DCA 1988). Velasquez v. American Manufacturers Mutual Insurance Co., 387 So. 2d 427 (Fla. 3d DCA 1980), is instructive. Mr. Velasquez’ minor son was driving a rental car…1 / 2
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Progressive Am. Ins. Co. v. Wladimir Tanchuk, 616 So. 2d 489 (Fla. 4th DCA 1993)…ANSTEAD, Judge, dissenting. On the narrow issue before us, I cannot agree the injured party in this case was “occupying” the tow truck when he was injured. See Davis v. Fireman’s Fund Ins. Co., 463 So. 2d 1191 (Fla. 2d DCA), rev. denied, 471 So. 2d 43 (Fla.1985); State Farm Mut. Auto. Ins. Co. v. Yanes, 447 So. 2d 945 (Fla. 3d DCA 1984). Davis reached the opposite conclusion from that of the majority here, under virtually identical circumstances. I also n…
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Alamo Rent-A-Car, Inc. v. Hayward, 858 So. 2d 1238 (Fla. 5th DCA 2003)…were proved in the trial court. Id. at 428 (citations omitted). Similar exclusions have been found valid in State Farm Mutual Automobile Insurance Company v. Yanes, 447 So. 2d 945 (Fla. 3d DCA 1984), and Davis v. Fireman’s Fund Insurance Company, 463 So. 2d 1191 (Fla. 2d DCA 1985), review denied, 471 So. 2d 43 (Fla.1985). In Yanes, an employee was the operator of a delivery van owned by his employer and while in the course of his employment parked the vehicle near the company warehouse. After leaving the ve…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Perez v. Maule Indus., 411 So. 2d 960 (Fla. 3d DCA 1982)
- Carmel Carter v. Supplies, Inc., 411 So. 2d 960 (Fla. 3d DCA 1982)
- M.E. Charlesworth v. Perez, 426 So. 2d 1107 (Fla. 3d DCA 1983)