DIANE POMERANTZ AND JEFFREY POMERANTZ, APPELLANTS,
v.
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, APPELLEE
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The Pomerantzes appealed a summary judgment denying uninsured motorist coverage after Diane Pomerantz was injured when a tree limb thrown by a lawn worker loading an uninsured truck struck their vehicle. The court reversed, holding that injuries arising from the loading of a truck fall within uninsured motorist coverage because loading is inherent to the customary use of trucks.
The court held that the injuries arose out of the use of the uninsured truck, specifically the loading of that truck, and therefore fell within the uninsured motorist coverage. Because trucks must be loaded and unloaded as part of their customary use, the loading activity constituted use of the motor vehicle sufficient to trigger coverage.
[1] An accident arises out of the ownership, maintenance, or use of an uninsured vehicle when the injuries are caused by the loading or unloading of that vehicle.
[2] The terms "arising out of the ownership, maintenance, or use" of a motor vehicle in an uninsured motorist policy are interpreted the same as they are in automobile liabil…
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Join FLexlaw to unlock all legal intelligence“three rather interesting rules have been set up to determine the insurer's liability: 1. The accident must have arisen out of the inherent nature of the automobile, as such; 2. The accident must have arisen within the territorial limits of an automobile, and the actual use, loading, or unloading must not have terminated; 3. The automobile must not merely contribute to cause the condition which produces the injury, but must, itself, produce the injury.”
The test from Race v. Nationwide for determining whether an accident arises from the ownership, maintenance, or use of a motor vehicle under uninsured motorist coverage
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Join FLexlaw to unlock all legal intelligenceDiane Pomerantz, a passenger in her husband's insured vehicle, was injured when a tree limb thrown by a lawn worker struck the car's windshield. The w…
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JORGENSON, Judge.
Diane and Jeffrey Pomerantz appeal from an order of final summary judgment denying uninsured motorist coverage. For the following reasons, we reverse.
Diane Pomerantz, a passenger in the insured vehicle driven by her husband, was injured when a tree limb thrown by a lawn worker struck the car’s windshield. The worker had been trimming trees and was loading the cut limbs into his uninsured truck when he missed his truck and hit the Pomerantz vehicle.
The Pomerantzes sought benefits under the uninsured motorist provisions of their automobile insurance policy issued by Nationwide. Upon denial of their claim, the Pomerantzes filed an action seeking declaratory relief against Nationwide and requesting arbitration. The parties filed cross-motions for summary judgment; the trial court granted Nationwide’s motion, concluding that the accident did not arise out of the operation, maintenance, or use of an uninsured motor vehicle.
We disagree. The language of the uninsured motorist provision in the Nationwide policy simply provided that “[djamages must result from an accident arising out of the ownership, maintenance, or use of the uninsured vehicle.” The Florida Supreme Court, in interpreting an uninsured motorist policy that contained the terms “arising out of the ownership, maintenance, or use” of a motor vehicle, held that those terms should be given the same interpretation as they are given in automobile liability policies. Race v. Nationwide Mut. Fire Ins. Co., 542 So. 2d 347, 349 (Fla.1989). In Race, the court held that injuries suffered by an insured in a criminal assault following a traffic accident did not arise from the ownership, maintenance, or use of the tortfeasor’s vehicle, and were therefore not covered by the insured’s uninsured motorist policy. In so holding, the court recognized that
... three rather interesting rules have been set up to determine the insurer’s liability: 1. The accident must have arisen out of the inherent nature of the automobile, as such; 2. The accident must have arisen within the territorial limits of an automobile, and the actual use, loading, or unloading must not have terminated; 3. The automobile must not merely contribute to cause the condition which produces the injury, but must, itself, produce the injury. Race, 542 So. 2d at 349, quoting 6B J. Appleman, Insurance Law and Practice, § 4317 (Buckley ed. 1979). See also Connecticut General Life Ins. v. Dyess, 569 So. 2d 1293 (Fla. 5th DCA 1990) (coverage found pursuant to underinsured motorist clause where injuries caused by enraged bulls that had escaped from trailer towed by uninsured vehicle; incident arose from ownership, maintenance, or use of that vehicle).
In this case, the injuries to Diane Pomer-antz were caused by the use of the uninsured truck, in particular, the loading of that truck.1 Trucks, by their inherent nature, are vehicles that must be loaded and unloaded in order to be used in their customary manner. Accordingly, the trial court erred in finding that the Nationwide policy afforded no coverage.
Reversed and remanded for further proceedings.
. Automobile liability uninsured motorist coverage "contemplates injuries which arise out of the ownership, maintenance, or use of the tortfeasor’s motor vehicle.” Race, 542 So. 2d at 351, n. 1.
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Earnest Hagen and Jerry M. Richardson v. AETNA Cas. & Sur. Co., 675 So. 2d 963 (Fla. 5th DCA 1996)…, 453 So. 2d 1116 (Fla. 1984); National Ben Franklin Ins. Co. v. Valdes, 341 So. 2d 975 (Fla. 1976); Taylor v. Phoenix Ins. Co., 622 So. 2d 506 (Fla. 5th DCA 1993), rev. denied, 634 So. 2d 627 (Fla. 1994); Pomerantz v. Nationwide Mut. Fire Ins. Co., 575 So. 2d 1311 (Fla. 3d DCA 1991); Halpin v. Hilderbrand, 493 So. 2d 75 (Fla. 4th DCA 1986), disapproved, Race v. Nationwide Mut. Fire Ins. Co., 542 So. 2d 347 (Fla. 1989). The two cases that remain, Fleming v. Hill, 501 So. 2d 715 (Fla. 5th DCA 1987) and St. Paul…
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Container Corp. OF Am. v. McKENZIE Tank Lines, Inc., 680 So. 2d 509 (Fla. 1st DCA 1996)…t “only a minimal causal connection between the use of the automobile and the injury is required for coverage to apply.” [*512] We moreover agree that “use” of a vehicle includes its loading and unloading. Pomerantz v. Nationwide Mut. Fire Ins. Co., 575 So. 2d 1311 (Fla. Bd DCA 1991). “Trucks, by them inherent nature, are vehicles that must be loaded and unloaded in order to be used in their customary manner.” Id. at 1313. Edwards’ accident thus arose out of the inherent nature of the truck—it had to be loade…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Race v. Nationwide Mut. Fire Ins. Co., 542 So. 2d 347 (Fla. 1989)
- Conn. Gen. Life Ins. v. Dyess, 569 So. 2d 1293 (Fla. 5th DCA 1990)