AUTO-OWNERS INS. v. Above All Roofing, LLC

924 So. 2d 842, 2006 WL 66708
CourtDistrict Court of Appeal of Florida
DecidedJanuary 13, 2006
Docket2D05-236
StatusPublished
Cited by10 cases

This text of 924 So. 2d 842 (AUTO-OWNERS INS. v. Above All Roofing, LLC) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
AUTO-OWNERS INS. v. Above All Roofing, LLC, 924 So. 2d 842, 2006 WL 66708 (Fla. Ct. App. 2006).

Opinion

924 So.2d 842 (2006)

AUTO-OWNERS INSURANCE COMPANY, Appellant,
v.
ABOVE ALL ROOFING, LLC, a Florida Limited Company; Jacek Loskot; and Jolnta Loskot, Appellees.

No. 2D05-236.

District Court of Appeal of Florida, Second District.

January 13, 2006.

David A. Finlay of Law Office of Robert A. Dalessio, Tampa, for Appellant.

*843 Michael D. Allweiss, St. Petersburg, for Appellees.

LaROSE, Judge.

Auto-Owners Insurance Company appeals the trial court's entry of a summary declaratory judgment in favor of Above All Roofing, LLC, and Jacek and Jolnta Loskot. The trial court ruled that Jacek Loskot, an Above All Roofing employee, was covered under his employer's uninsured motorist (UM) policy for injuries he suffered in an automobile accident. We reverse.

Mr. Loskot was driving a van owned by Above All Roofing and insured by Auto-Owners. While driving onto the interstate in Pinellas County, Mr. Loskot collided with a car driven by Robin L. Conyers. After impact, Ms. Conyers stopped her car in the right emergency lane. Mr. Loskot pulled over to the left, stopped his van in the median, and exited the van. He crossed the road and stood next to Ms. Conyers' car to render assistance and exchange driver information. While standing next to Ms. Conyers' car, Mr. Loskot was struck by a third vehicle driven by an uninsured motorist.

Auto-Owners denied Mr. Loskot's claim for UM benefits under Above All Roofing's policy. Auto-Owners concluded that Mr. Loskot was a pedestrian when injured and was not occupying or getting into or out of his van. The Loskots and Above All Roofing filed suit seeking a determination that Mr. Loskot was entitled to UM benefits.

In the lawsuit, Mr. Loskot alleged that he was injured while operating his employer's van. The parties stipulated that Mr. Loskot left the van to exchange information with Ms. Conyers, in compliance with sections 316.027 and 316.062, Florida Statutes (2002)[1]; Mr. Loskot was struck by the third vehicle while fulfilling those obligations.[2]

After hearing argument on cross-motions for summary judgment, the trial court ruled that (1) the UM coverage provisions of the Auto-Owners policy were ambiguous, and (2) because Mr. Loskot was performing his statutory duties when injured, he was entitled to UM benefits under the policy.

In reviewing the trial court's ruling on a motion for summary judgment, we apply a de novo standard. See Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001). Similarly, the trial court's interpretation of an insurance policy to determine coverage is a matter of law also subject to our de novo review. Meyer v. *844 Hutchinson, 861 So.2d 1185, 1187 (Fla. 5th DCA 2003); Barnier v. Rainey, 890 So.2d 357, 359 (Fla. 1st DCA 2004) (addressing UM policy construction).

Auto-Owners' policy section II, Liability Coverage, addresses liability for bodily injury or property damage arising from Above All Roofing's ownership, maintenance, or use of its insured vehicles:

SECTION II—LIABILITY COVERAGE

1. COVERAGE
a. Liability Coverage—Bodily Injury and Property Damage
We will pay damages for bodily injury and property damage for which you become legally responsible because of or arising out of the ownership, maintenance or use of your automobile (that is not a trailer) as an automobile. We will pay such damages:
(1) on your behalf;
(2) on behalf of any relative using your automobile (that is not a trailer);
(3) on behalf of any person using your automobile (that is not a trailer) with your permission or that of a relative; and
(4) on behalf of any person or organization legally responsible for the use of your automobile (that is not a trailer) when used by you, a relative, or with your permission or that of a relative.
. . . .
2. EXCLUSIONS
Liability Coverage does not apply:
. . . .
j. to any expenses that would be payable under any workers compensation law, unemployment compensation or disability benefits law or under any similar law.

The Loskots and Above All Roofing did not sue for coverage under section II. Rather, they sought benefits under the UM provisions of the policy:

2. COVERAGE

We will pay damages any person is legally entitled to recover from the owner or operator of an uninsured automobile because of bodily injury sustained while occupying or getting into or out of an automobile that is covered by SECTION II—LIABILITY COVERAGE of the policy.
a. If the first named insured in the Declaration is an individual, this coverage is extended as follows:
(1) We will pay damages you are legally entitled to recover from the owner or operator of any uninsured automobile because of bodily injury you sustain:
(a) when you are a pedestrian; or
(b) when occupying an automobile you do not own which is not covered by SECTION II—LIABILITY COVERAGE of the policy.

(Emphasis added.)

Because Mr. Loskot was not a first named insured, he was not entitled to UM benefits as a pedestrian under section 2(a)(1)(a). See Travelers Ins. Co. v. Bartoszewicz, 404 So.2d 1053, 1054-55 (Fla. 1981) (stating that declaration of corporation as named insured does not render employees named insureds). Instead, he seeks UM benefits as a class II insured who suffered injuries while occupying or getting into or out of Above All Roofing's insured van.[3] The Auto-Owners policy defines *845 "occupying" as "in or upon, entering into or alighting from."

UM coverage exclusions for claimants who were not physically occupying the insured vehicle when injured are enforceable and do not violate public policy.

It is apparent that the public policy of this state is to require that named and other Class I insureds who own the vehicle or actually purchased the policy have the benefit of full and unrestricted uninsured motorist coverage .... On the other hand, the public policy of this state has not been offended by a more limited coverage in situations involving Class II or additional insureds. The cases interpreting those situations have all permitted the issuance of policies that restrict the coverage to injuries or death that occur while the insured is occupying the vehicle.

Alamo Rent-A-Car v. Hayward, 858 So.2d 1238, 1241-42 (Fla. 5th DCA 2003). See also Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229 (Fla.1971); Davis v. Fireman's Fund Ins. Co., 463 So.2d 1191 (Fla. 2d DCA 1985); Fenwick v. Am. States Ins. Co., 520 So.2d 98-99 (Fla. 4th DCA 1988).

Velasquez v. American Manufacturers Mutual Insurance Co., 387 So.2d 427 (Fla. 3d DCA 1980), is instructive. Mr. Velasquez' minor son was driving a rental car when it broke down. The son was struck and injured while walking to a service station. He sought benefits from the rental company's UM carrier. The son was not entitled to UM benefits because he was a Class II insured and was not occupying the car when he was injured.

By special provision of the policy, uninsured motorist protection was extended to any person while occupying the insured automobile.

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Bluebook (online)
924 So. 2d 842, 2006 WL 66708, Counsel Stack Legal Research, https://law.counselstack.com/opinion/auto-owners-ins-v-above-all-roofing-llc-fladistctapp-2006.