ALLSTATE INSURANCE COMPANY, APPELLANT,
v.
VERA MAE THOMAS, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF BENNY CHARLES THOMAS, JR., DECEASED, APPELLEE

Fla. 4th DCA | 1996-02-14
No. 94-3372
GLICKSTEIN and PARIENTE, JJ„ concur.
668 So. 2d 1038 Florida District Court of Appeal, Fourth District (1996) Caution
Cited by 6 cases

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Synopsis

Allstate Insurance appeals a judgment denying coverage for an employee killed by an uninsured motorist while unloading furniture from a disabled vehicle. The court holds that the decedent was not "occupying" the insured company truck where he had been a passenger, as he had walked away from the truck to the rear of another vehicle at the time of his death.


Holding

The decedent was not occupying the insured truck because he had completed alighting from it, walked away to the rear of the disabled vehicle, and was no longer in the process of getting in or out of the insured vehicle. The relevant test focuses on the relationship between the person and the vehicle, including time and distance with regard to the risk of alighting, not merely physical contact.


Headnotes

[1] An insurance policy's definition of "occupying" is not ambiguous if it clearly delineates the scope of coverage.

[2] A person is not "occupying" an insured vehicle for purposes of uninsured motorist coverage when they have completed alighting from the vehicle and are a significant dista…

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Key Quotes

“[I]t is not physical contact with the vehicle that serves as a basis to determine whether a person is injured while alighting from a vehicle but it is the relationship between the person and the vehicle, obviously of time and in distance with regard to the risk of alighting, that determines this specific coverage.”

Establishes the controlling legal standard for determining "occupancy" under the policy, focusing on relationship rather than physical contact.

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Facts & Procedural History

House of Credit sent two employees in an Allstate-insured company truck to retrieve furniture from a disabled vehicle on I-95. The insured truck was p…

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Opinion of the Court
KLEIN, Judge.

KLEIN, Judge.

Allstate appeals a judgment declaring that the decedent had uninsured motorist coverage under a policy insuring a truck in which he had been a passenger shortly before he was struck and killed by another motorist. We conclude that the decedent, who was unloading a nearby vehicle at the time of the accident, was not “occupying” the insured truck, and was therefore not covered by the policy.

After being informed that an independent trucker’s vehicle had become disabled on I-95, House of Credit, a furniture company, sent two of its employees in a company truck insured by Allstate to the scene to transfer the furniture from the disabled vehicle to the company truck. The insured truck was parked in front of the disabled vehicle, and one of the employees, Benny Charles Thomas, got out and walked to the rear* of the disabled vehicle, where he was struck and killed by an uninsured motorist as he stood waiting to unload furniture. Decedent’s estate sued Allstate, and both sides moved for summary judgment, stipulating to the above facts and agreeing that coverage turned on whether decedent was “occupying” the insured vehicle. The Allstate policy defined “occupying” as “in, upon, getting in, on, out or off.”

The trial court concluded that decedent was occupying the insured truck, relying on Progressive American Insurance Co. v. Tanchuk, 616 So. 2d 489 (Fla. 4th DCA), rev. denied, 624 So. 2d 267 (Fla.1993), in which we found coverage under the same definition of “occupying.” In that case the claimant had hooked up a disabled vehicle to the insured tow truck, and was using the radio in the truck when he heard a scream from the occupant of the disabled vehicle. He ran back and was injured when another vehicle struck the disabled vehicle, causing the tow truck cable, which claimant said he may have been touching, to injure claimant. We adopted a test annunciated in Day v. Coca-Cola Bottling Co., 420 So. 2d 618 (La.App.1982):

[I]t is not physical contact with the vehicle that serves as a basis to determine whether a person is injured while alighting from a vehicle but it is the relationship between the person and the vehicle, obviously of time and in distance with regard to the risk of alighting, that determines this specific coverage.

Tanchuk, 616 So. 2d at 490.

In the present case decedent had already completed alighting from the insured vehicle, had walked to the rear of the disabled vehicle which was parked behind it, and was waiting to unload the disabled vehicle. Neither the facts in Tanchuk, nor the test we adopted, suggest coverage here. The definition of “occupying” is not ambiguous, and decedent had simply gone too far from the insured vehicle in this case to be an occupant of it.

The facts in the present case are more like the facts involved in Fidelity & Casualty Co. of New York v. Garcia, 868 So. 2d 1313 (Fla. 3d DCA), cert. denied, 378 So. 2d 344 (Fla.1979), in which the third district concluded that a passenger who had gotten out of the insured vehicle and was a few feet away from it when he was struck by another motorist, was not occupying the insured vehicle. See also, Davis v. Fireman’s Fund Ins. Co., 463 So. 2d 1191 (Fla. 2d DCA), rev. denied, 471 So. 2d 43 (Fla.1985), in which it was held that a tow truck operator was not occupying the tow truck while he was changing a tire on a disabled vehicle.

We conclude that the decedent was not occupying the insured truck and reverse and remand for entry of a judgment in favor of Allstate.

GLICKSTEIN and PARIENTE, JJ„ concur.


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Citator

Cited By

  • Auto-Owners Ins. Co. v. Above ALL Roofing, LLC, 924 So. 2d 842 (Fla. 2d DCA 2006)
    …or alighting from a motor vehicle”). The facts of this case do not present a “close proximity” situation as in Tanchuk. Mr. Loskot left the insured van and was standing on the other side of the road when struck. In Allstate Insurance Co. v. Thomas, 668 So. 2d 1038 (Fla. 4th DCA 1996), the Fourth District reversed a finding of UM coverage where the “decedent had already completed alighting from the insured vehicle, had walked to the rear of the disabled vehicle which was parked behind it, and was waiting to un…
  • Auto-Owners Ins. Co. v. Young, 978 So. 2d 850 (Fla. 1st DCA 2008)
    …nt and the tow truck in Tanchuk. Therefore, Tanchuk does not support the trial court’s holding that the decedent was occupying the tow truck at the time of the accident. The Fourth District’s subsequent decision in Allstate Insurance Co. v. Thomas, 668 So. 2d 1038 (Fla. 4th DCA 1996), is more on point with the instant case. In Thomas, the decedent’s employer sent him and a coworker to the aid of a disabled truck. Id. at 1039. After his coworker parked the insured truck in front of the disabled truck, the dece…
  • State Farm Mut. Auto. Ins. Co. v. Bailey, 203 So. 3d 995 (Fla. 2d DCA 2016)
    …fs were not covered where they “were not at least touching or in close proximity to the insured vehicle at the time of injury.” Id. at 846; see, e.g., Davis v. Fireman’s Fund Ins. Co., 463 So. 2d 1191 (Fla. 2d DCA 1985); Allstate Ins. Co. v. Thomas, 668 So. 2d 1038 (Fla. 4th DCA 1996); State Farm Mut. Auto. Ins. Co. v. Yanes, 447 So. 2d 945 (Fla. 3d DCA 1984); Fid. & Cas. Co. of N.Y. v. Garcia, 368 So. 2d 1313 (Fla. 3d DCA 1979); cf. Progressive Am. Ins. Co. v. Tanchuk, 616 So. 2d 489 (Fla. 4th DCA 1993); Asni…

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