NESSAR CHALSTON BATTLE, APPELLANT,
v.
MICHAEL DOUGLAS COLEMAN AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, A CORPORATION, APPELLEES

Fla. 1st DCA | 1976-08-11
No. AA-143
SMITH, J., and RUDD, JOHN A., Associate Judge, concur.
336 So. 2d 140 Florida District Court of Appeal, First District (1976) Positive Treatment
Cited by 2 cases

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Synopsis

A negligence plaintiff appealed summary judgment in his favor against an insurance company. The court affirmed that State Farm's liability policy covering Coleman's private automobile did not extend to a van owned and operated by Coleman and fellow band members in pursuit of their music business.


Holding

State Farm's liability insurance policy did not extend to cover Coleman while driving the van because the van was used in connection with Coleman's business or occupation as a member of the band, which falls within an exclusionary provision of the policy that excludes automobiles "used in a business or occupation of the insured."


Headnotes

[1] An insurance policy's exclusionary provision for vehicles used in the insured's business or occupation applies when the insured is engaged in that business or occupation…

[2] A vehicle owned and operated by members of a band for band business, including transporting equipment and traveling to engagements, is considered used in the business or…

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Key Quotes

“It would be grossly unreasonable to think that either the insured or the insurer, upon the issuance of the liability insurance policy covering Coleman's private automobile, contemplated that such coverage extended to the vehicle equitably owned and operated by Coleman and his fellow band members in pursuit of their business.”

Establishes the court's rationale that the parties could not reasonably have intended the policy to cover a business vehicle

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Facts & Procedural History

Coleman was a member of the "Generation Gap" band and had played with them for approximately seven years. The band members equally owned a 1964 Ford v…

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Opinion of the Court
RAWLS, Acting Chief Judge.

RAWLS, Acting Chief Judge.

Appellant-plaintiff Battle filed his complaint against appellee Coleman and appel-lee State Farm Mutual Insurance Company alleging that Coleman negligently injured plaintiff and that Coleman was insured by a State Farm liability insurance policy. State Farm sought declaratory relief on the issue of insurance coverage. The trial judge granted State Farm’s motion for summary judgment holding that State Farm was not liable; hence this appeal.

The sole issue is whether State Farm’s liability insurance policy issued to Coleman on a 1965 Chevrolet also insured Coleman while he was driving a 1964 Ford van which was involved in the instant accident.

Although State Farm relies upon two exclusionary provisions of its policy in sustaining the summary judgment in its favor, we hold that determinative of this appeal is the “used in a business or occupation of the insured” exclusionary provision of the policy,1 and thus pretermit any discussion as to the other exclusionary provision.2 The following facts were not contradicted: Coleman was a member of a band known as the “Generation Gap” and had been playing with this band since its organization some seven years ago. The members of the band were equal owners of the van involved in the accident; it having been paid for out of band earnings as was gas and maintenance. Application for title to the van was submitted in the name of a friend of the band leader, because he was twenty-one years old and none of the members were twenty-one years of age when the van was purchased. The van was painted with the band slogan and was used in connection with the band business to carry instruments, sound equipment, and some of the band members to various business engagements. Coleman and other members of the band regularly took turns driving the van. At the time of the accident, the van was occupied by three band members (including Coleman, the alleged driver), their musical instruments and sound equipment, and was being driven to Lake City where the band had an engagement to play that evening. The business or occupation of Coleman was that of playing as a member of the “Generation Gap” band. He was engaged in that business or occupation when the accident occurred. It would be grossly unreasonable to think that either the insured or the insurer, upon the issuance of the liability insurance policy covering Coleman’s private automobile, contemplated that such coverage extended to the vehicle equitably owned and operated by Coleman and his fellow band members in pursuit of their business. Voelker v. Travelers Indemnity Co., 260 F. 2d 275 (7th Cir. 1958); Annot., 85 A.L.R.2d 502 (1962).

AFFIRMED.

SMITH, J., and RUDD, JOHN A., Associate Judge, concur. . Subsection (d)(3) of Section V, Use of Other Automobiles, states:

“(d) This insuring agreement does not apply:
(3) . . . to any automobile while used in a business or occupation of such named insured or spouse except a private passenger automobile operated or occupied by such named insured, spouse, private chauffeur or domestic servant;”

. Subsection (d)(1) of Section V, Use of Other Automobiles, provides:

“(d) This insuring agreement does not apply:
(1) to any automobile owned by or furnished for regular use to either the named insured or a member of the same household other than a private chauffeur or domestic servant of such named insured or spouse;”

State Farm contends that Coleman is an owner in that the van was • purchased with money •earned by the band and was owned equally by the band members, and that the van was regularly available to Coleman to be driven on band jobs.


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Citator

Cited By

  • Volkswagen Ins. Co. v. Dung BA Nguyen, 405 So. 2d 190 (Fla. 3d DCA 1981)
    …t argue that the accident was not “business” related since Ming has successfully filed a workmen’s compensation claim and was paid compensation benefits; he was also being paid by his employer, AHC, to work overtime.6 The case of Battle v. Coleman, 336 So. 2d 140 (Fla.1st DCA 1976) supports VICO’s position relative to the business exclusion. The insured was a member of a band and was driving a van used by the band and which was equally owned by the band members. The van was titled in the name of a friend of…

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