ROBERT TROTT, AND LESLIE A. HURST, AS MOTHER AND NEXT BEST FRIEND OF JONATHAN CALEB FINLAYSON, APPELLANTS,
v.
WILLIAM MORRISON FINLAYSON, III; WILLIAM CARDULLO, ET UX; FORTUNE INSURANCE COMPANY; NATIONWIDE INSURANCE COMPANY; AND ST. PAUL FIRE AND MARINE INSURANCE COMPANY, APPELLEES

Fla. 4th DCA | 1997-04-02
Nos. 96-0442, 96-0838
PARIENTE and GROSS, JJ., concur.
690 So. 2d 718 Florida District Court of Appeal, Fourth District (1997) Positive Treatment
Cited by 4 cases

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Holding

The court held that injuries sustained when a vehicle was shot at, but not used or possessed by the assailant, do not arise out of the ownership, maintenance, or use of a motor vehicle for PIP or UM coverage purposes.


Headnotes

[1] An injury does not arise out of the ownership, maintenance, or use of a motor vehicle when the vehicle is merely the situs of the injury and the assailant does not desire…

[2] For an injury to arise out of the use of a motor vehicle, there must be a sufficient nexus between the automobile and the injury, meaning the assailant desired either pos…

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Facts & Procedural History

Plaintiff Trott was injured by gunfire while entering his friend Hurst's vehicle after an altercation at Hurst's ex-husband's home. Hurst's son, Jonat…

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Opinion of the Court
POLEN, Judge.

POLEN, Judge.

In these consolidated appeals, Robert Trott and Leslie Hurst, the mother of Jonathan Caleb Finlayson, challenge final summary judgments entered in favor of St. Paul Fire and Marine Insurance Company (St. Paul) and Fortune Insurance Company (Fortune). We affirm both judgments.

Trott sought damages in connection with injuries sustained while assisting his friend, Leslie Hurst, retrieve Hurst’s son, Jonathan Caleb Finlayson, from the home of her ex-husband, William Finlayson. When deposed, Trott explained he arrived at Fin-layson’s house with Hurst, and remained in Hurst’s automobile while she entered the house. Trott entered the house when he heard yelling inside, and he began fighting with Finlayson. After a few minutes, Hurst, her son, and Trott fled Finlayson’s house and returned to Hurst’s automobile. While Trott was entering Hurst’s automobile, Finlayson exited his house and began firing a gun. Trott received a gunshot wound in the leg as he entered Hurst’s vehicle. He received additional wounds after entering the vehicle, as Finlayson continued firing. Trott sought damages from St. Paul, his PIP and UM insurer. Jonathan was injured when gun-. shots shattered the windshield of the automobile, and pieces of glass fell into the vehicle. He sought declaratory relief against Fortune, Hurst’s PIP and UM insurer. William Finlayson testified the sole purpose for firing at Trott and the vehicle was to protect his home and family, and to keep Trott from returning. When interviewed by the police, Finlayson stated he was unaware his son was in the vehicle and he had no intention of gaining possession of Hurst’s automobile. Finlayson explained he retrieved his gun from his briefcase while Trott was walking out of his house, and began shooting while Trott was walking past a gate toward Hurst’s vehicle.

In opposing St. Paul’s motion for summary judgment, Trott relied on Hurst’s answers to interrogatories in which she stated she believed her ex-husband began shooting at her automobile because he heard the vehicle start and saw Hurst starting to back out of his driveway. Hurst stated: “I. guess [Fin-layson] was shooting at the car in an attempt to prevent me from taking our son, Caleb, away from the house.” Trott argued Hurst’s admission raised an issue for the jury regarding whether Hurst’s use of the vehicle caused Trott’s injuries.

Viewing the facts in the light most favorable to Trott, Finlayson arguably fired at Hurst’s vehicle to stop the vehicle and retrieve his son. Even under this most favorable scenario, no PIP coverage exists because Trott’s injuries did not “[arise] out of the ownership, maintenance, or use of a motor vehicle.” § 627.736(1), Fla.Stat. (1991). Finlayson’s alleged desire to stop Hurst’s automobile and retrieve his son does not equate with a desire to gain possession or use of the vehicle itself. Rather, Hurst’s automobile was merely the situs of Trott’s injury. See Allstate Ins. Co. v. Famigletti, 459 So. 2d 1149 (Fla. 4th DCA 1984) (reversing judgment in favor of plaintiffs where injuries arose out of defendant’s attack, and automobile was merely situs of attack); General Accident Fire & Life Assurance, Ltd. v. Appleton, 355 So. 2d 1261 (Fla. 4th DCA 1978) (reversing judgment in favor of plaintiff where injuries were caused by fists of criminals who assaulted plaintiff, and automobile was only physical situs, not instrumentality, of assault); Allstate Ins. Co. v. Furo, 588 So. 2d 61 (Fla. 5th DCA 1991) (noting a sufficient nexus between the automobile and injury exists only when it is shown the assailant desired either possession or use of the victim’s automobile). Trott’s mere presence in Hurst’s vehicle at the time of the shooting does not satisfy the nexus test. Fortune Ins. Co. v. Exilus, 608 So. 2d 139 (Fla. 4th DCA 1992).

Further, no UM coverage exists because Finlayson’s gun, and not Hurst’s automobile, produced Trott’s injuries. Niglio v. Omaha Property and Casualty Ins. Co., 679 So. 2d 323 (Fla. 4th DCA 1996). No person could reasonably conclude Trott’s injuries were covered under his automobile liability policy. Race v. Nationwide Mut. Fire Ins. Co., 542 So. 2d 347 (Fla.1989) (holding phrase “arising out of the ownership, maintenance, or use” of a motor vehicle as contained in UM policy should be given same interpretation as in automobile liability policies). Final summary judgment in favor of St. Paul is affirmed.

The same analysis applies to Jonathan Finlayson’s claim for declaratory relief against Fortune, although the facts of his injury present a somewhat closer question. Nevertheless, while Jonathan was allegedly injured by glass from the automobile’s windshield, neither PIP nor UM coverage is available to him. William Finlayson’s gun, and not Hurst’s automobile, produced Jonathan’s injuries. Niglio. Therefore we affirm the final summary judgment as to Fortune.

AFFIRMED.

PARIENTE and GROSS, JJ., concur.


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Citator

Cited By

  • Lancer Ins. Co. v. Gomez, 799 So. 2d 334 (Fla. 3d DCA 2001)
    …object by a criminal assailant who left his vehicle to assault the plaintiff was not entitled to UM benefits because the plaintiffs injuries did not arise out of the ownership, maintenance, or use of an uninsured motor vehicle); Trott v. Finlayson, 690 So. 2d 718, 719 (Fla. 4th DCA 1997)(UM coverage did not exist where gun, and not automobile, produced injuries); State Farm Fire and Cas. Co. v. Gonzalez, 623 So. 2d 616, 617 (Fla. 3d DCA 1993)(UM policy did not cover injury to insured’s eye when another drive…
  • Blish v. Atlanta Cas. Co., 736 So. 2d 1151 (Fla. 1999)
    …... .See, e.g., Allstate Ins. Co. v. Jun, 712 So. 2d 415 (Fla. 5th DCA 1998) (ruling in favor of insurer where insured was driving home from work at night when assailants blocked her car at intersection, shot at and robbed her); Trott v. Finlayson, 690 So. 2d 718 (Fla. 4th DCA 1997) (denying PIP coverage where insureds fled domestic disturbance and were shot by pursuer as they drove away in car); Underwriters Guarantee Ins. Co. v. Therrien, 640 So. 2d 234 (Fla. 4th DCA 1994) (denying PIP coverage where victi…

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