Rupert v. State Auto Property & Casualty Insurance Co.

596 So. 2d 1215, 1992 Fla. App. LEXIS 4110, 1992 WL 72013

• Court: District Court of Appeal of Florida
• Decided: April 8, 1992
• Docket: No. 91-02302
• Status: Published

Opinion

HALL, Acting Chief Judge.

The Ruperts appeal the final summary judgment entered in favor of State Auto Property and Casualty Insurance Company in their action for uninsured motorist benefits under their automobile insurance policy with State Auto. We reverse.

Joyce Rupert fell and broke her wrist in a shopping center parking lot trying to avoid being hit by what she alleged was a negligently driven automobile. Joyce testified at her deposition that she heard the rev of a car engine and believed the car was about to come up on the concrete median on which she was standing and hit her. She testified she could feel the wind created by the car, which she said she could have easily reached out and touched as it passed by her in the wrong lane of traffic.

In granting State Auto’s motion for summary judgment the trial court entered an order finding there was no evidence of negligence on the part of the phantom vehicle. We disagree. In view of Joyce Rupert’s testimony, State Auto has failed to show unequivocally that the phantom vehicle was not driven negligently or that Joyce’s own negligence was the sole proximate cause of her injuries. Hynds v. Thomas, 543 So.2d 464 (Fla. 2d DCA 1989).

Accordingly, we reverse the final summary judgment and remand for proceedings consistent with this opinion.

PATTERSON and ALTENBERND, JJ., concur.