PAUL O'DWYER, AS FATHER AND NEXT FRIEND OF THERESA O'DWYER, A MINOR, ET AL., APPELLANTS,
v.
MANCHESTER INSURANCE COMPANY, APPELLEE
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This case involves a dispute over insurance coverage for an injury sustained by a five-year-old trick-or-treater who struck a protruding bolt attached to a van truck parked on residential property. The court held that the injury did not arise out of the "use" of the vehicle within the meaning of the automobile liability insurance policy and therefore affirmed dismissal of the insurance company.
The court held that the insurance policy did not cover the accident because the injury did not arise out of the "use" of the vehicle within the meaning of the policy, and therefore affirmed the dismissal of the insurance company from liability.
[1] An automobile liability policy extending coverage for bodily injuries that "arise out of the use" of a vehicle requires some causal connection between the injury and the…
[2] The phrase "arising out of the use" in an automobile liability policy is given a broader meaning than "caused by" to determine coverage.
Previewing 2 of 5 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“"arising out of" is not synonymous with the words "caused by," but is given a broader meaning in determining whether coverage applies.”
Establishes the standard for interpreting the policy's coverage language and that it is broader than simple causation.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn Halloween night 1972, five-year-old Theresa O'Dwyer was trick-or-treating on property owned by the Sparkmans and leased to John E. Grant. While on …
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HENDRY, Judge.
By this consolidated appeal, appellants seek review of an order of dismissal of the appellee insurance company.
The salient facts of this case reveal that Theresa O’Dwyer, five years old at the time of her accident, entered the premises owned by the Sparkmans and leased to one, John E. Grant, on Halloween night, 1972. The young girl was “trick-or-treating.” While on the premises, Theresa injured her eye when she struck a protruding bolt which was on a bracket attached to a van truck belonging to Grant and parked on the property. The bracket was installed on the truck by Grant to carry a butane tank when the truck was used as a camper. Appellant, Paul O’Dwyer, Theresa’s father, sued the Sparkmans, Grant and his' insurance company, the appellee herein. The Sparkmans cross-claimed for indemnification against Grant and his insurer, alleging that if they were ultimately determined liable, they were only passive tort-feasors while Grant was responsible for active negligence.
Thereafter, the court separately tried the coverage issue, and entered the order now appealed dismissing the appellee from liability.
The focal question in this case is whether or not the appellee’s insurance policy covered the accident involved in this case. We hold that it did not.
The policy before us is an automobile liability policy. It contains standard language extending coverage to the insured for bodily injuries which “arise out of . the use” of a vehicle.
The words just included in quotations are words of art. It is obvious from the differing conclusions which courts in this and other jurisdictions have reached that no clear uniformity exists in resolving the question posed in this case as it arises in varying factual contexts. See, St. Paul Fire & Marine Insurance Co. v. Thomas, Fla.App.1973, 273 So. 2d 117 [and cases cited therein],
We are mindful that “arising out of” is not synonymous with the words “caused by,” but is given a broader meaning in determining whether coverage applies. National Indemnity Co. v. Corbo, Fla.App.1971, 248 So. 2d 238. And, where two interpretations may fairly be given to the language of an insurance policy, the one providing greater indemnity will be given. Daleo v. Bert & Bette Bayfront 66 Marine, Fla.App. 1973, 273 So. 2d 113.
However, it is likewise true that “arising out of” requires some causal connection with the “use” of the automobile, although not proximate causation. National Indemnity Co. v. Corbo, supra. The theory of negligent conduct and the facts’ alleged in the complaint also are relevant to a determination of whether an accident fairly may be construed to be causally connected to the use of the automobile. St. Paul Fire & Marine Insurance Co. v. Thomas, supra.
The theory of the complaint filed by O’Dwyer basically alleges the existence of a dangerous condition upon the prem ises. The fact that the object on the property which caused Theresa’s accident was attached to the rear of a van truck used as a camper is, in our view, a fortuitous circumstance. It cannot be said that “but' for” the use of the vehicle in the cause sub judice, the accident would not have happened.
The injury incurred in this case is one usually covered under a homeowners’ insurance policy, not an automobile liability policy. See, St. Paul Fire & Marine Insurance Co. v. Thomas, supra.
Therefore, for the reasons stated and upon the authorities cited, the order appealed is affirmed.
Affirmed.
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Valdes v. Smalley, 303 So. 2d 342 (Fla. 3d DCA 1974)…HENDRY, Judge. This case presents a question of law similar to that raised in O’Dwyer v. Manchester Insurance Co., Fla.App. 1974, 303 So. 2d 347, filed this date, except the issue is posed in an entirely different factual setting. The appellants have filed this appeal from adverse summary judgments entered in favor of the automobile liability carriers of both the driver and passenger of the…
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Westmoreland v. Lumbermens Mut. Cas. Co., 704 So. 2d 176 (Fla. 4th DCA 1997)…4 (Fla. 2d DCA 1976); Feltner v. Hartford Accident & Indemnity Co., 336 So. 2d 142 (Fla. 2d DCA 1976); Brown v. Dilworth, 331 So. 2d 379 (Fla. 3d DCA 1976); Watson v. Watson, 326 So. 2d 48 (Fla. 2d DCA 1976); O’Dwyer v. Manchester Insurance Company, 303 So. 2d 347 (Fla. 3d DCA 1974); Valdes v. Smalley, 303 So. 2d 342 (Fla. 3d DCA 1974); St. Paul Fire & Marine Ins. Co. v. Thomas, 273 So. 2d 117 (Fla. 4th DCA 1973); National Indemnity Co. v. Corbo, 248 So. 2d 238 (Fla. 3d DCA 1971).” [e.s.] 377 So. 2d at 719.…1 / 2
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Nat'l BEN Franklin Ins. Co. v. Valdes, 341 So. 2d 975 (Fla. 1976)…e car added forty miles per hour to the velocity of the mug, greatly enhancing its lethality. Petitioners argue this holding conflicts with National Indemnity Co. v. Corbo, 248 So. 2d 238 (Fla. 3d DCA 1971); O’Dwyer v. Manchester Insurance Company, 303 So. 2d 347 (Fla. 3d DCA 1974), and St. Paul Fire & Marine Insurance Company v. Thomas, 273 So. 2d 117 (Fla. 4th DCA 1973). We disagree. National Indemnity Co. v. Corbo, supra, decided that an automobile liability insurance carrier was liable under the “arising…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Nat'l Indem. Co. v. Corbo, 248 So. 2d 238 (Fla. 3d DCA 1971)
- ST. Paul Fire & Marine Ins. Co. v. Thomas, 273 So. 2d 117 (Fla. 4th DCA 1973)
- Daleo v. Bert & Bette Bayfront 66 Marine, 273 So. 2d 113 (Fla. 3d DCA 1972)