UNITED STATES FIDELITY & GUARANTY COMPANY, APPELLANT,
v.
JOHN H. DALY AND DOUGLAS DALY, APPELLEES

Fla. 4th DCA | 1980-07-02
No. 79-66
LETTS, C. J., and HURLEY, J., concur.
384 So. 2d 1350 Florida District Court of Appeal, Fourth District (1980) Caution
Cited by 14 cases

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Synopsis

United States Fidelity & Guaranty Company appealed a judgment awarding personal injury protection (PIP) benefits to Douglas Daly, who was involuntarily ejected from a pickup truck while acting as a passenger. The court affirmed, holding that Douglas's occupancy of the vehicle extended to injuries incurred from accidental, involuntary ejection under Florida's Automobile Reparations Reform Act.


Holding

The court held that Douglas Daly is entitled to PIP benefits. The injury arose out of the use of the motor vehicle, satisfying Section 627.736(1). Additionally, Douglas was 'occupying' the pickup truck at the moment of accidental, involuntary ejection, and occupancy should extend to injuries incurred by reason of such ejection under Section 627.736(4)(d)(1).


Headnotes

[1] Personal injury protection benefits are available for bodily injury arising out of the ownership, maintenance, or use of a motor vehicle.

[2] An injury is considered to arise out of the use of a motor vehicle when there is a causal connection between the transportation purpose of the vehicle and the injury.

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Key Quotes

“There is no question that the injury arose out of the use of the pickup truck, which was being used for the specific purpose of transporting the mattress and other items.”

Establishes that the injury satisfies the statutory requirement of arising out of the use of a motor vehicle.

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Facts & Procedural History

On September 23, 1977, Douglas Daly, insured as a relative of John H. Daly under a United States Fidelity & Guaranty Company policy, was a passenger i…

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Opinion of the Court
GLICKSTEIN, Judge.

GLICKSTEIN, Judge.

This is a timely appeal from a final judgment awarding personal injury protection benefits under the Florida Automobile Reparations Reform Act, Sections 627.730-627.-741, Florida Statutes (1977). We affirm.

The record discloses that on September 23,1977, John H. Daly was insured by United States Fidelity & Guaranty Company. The insurance policy provided personal injury protection benefits for the named insured’s relatives who resided in the same household, including Mr. Daly’s son, Douglas.

On the date in question Douglas was a passenger in a pickup truck owned by Clement’s Pest Control. The truck was not primarily used in Mr. Daly’s business and at the time of Douglas’ injury, was being used to transport a mattress and other furnishings from one location to another. Douglas was in the back of the truck holding down the mattress. As the truck picked up speed, the wind velocity accelerated and Douglas and the mattress were lifted by the wind out of the truck onto the roadway. Douglas was injured as a result of his body coming into contact with the surface of the roadway.

Sections 627.736(1) and 627.736(4)(d)(l) and (3), Florida Statutes (1977), govern the disposition of this appeal. The former Section provides for the payment of personal injury protection benefits for bodily injury “arising out of the ownership, maintenance or use of a motor vehicle.” The latter provides benefits if one is injured “while occupying a motor vehicle” or “if the injury is caused by physical contact with a motor vehicle.” We have previously held that Sections 627.736(4)(d)(l) and (3) must be read in conjunction with Section 627.736(1). Stonewall Insurance Company v. Wolfe, 372 So. 2d 1147 (Fla. 4th DCA 1979).

There is no question that the injury arose out of the use of the pickup truck, which was being used for the specific purpose of transporting the mattress and other items. The causal connection here was the same as that in National Indemnity Co. v. Corbo, 248 So. 2d 238 (Fla. 3d DCA 1971), where the plaintiff, while a passenger, was bitten by a watchdog being transported from a residence to a place of business.

The next issue to be considered is the applicability of Sections 627.736(4)(d)(l) and (3), Florida Statutes. While there is no evidence that the injury was caused by physical contact with a motor vehicle, we find that Douglas was “occupying” the pickup truck when he was injured. It is our opinion that when one is occupying a vehicle at the moment there is an accidental, involuntary ejection therefrom, the occupancy should be extended to include injuries incurred by reason of the ejection. That is precisely what occurred.

While we are unable to cite any prior decision which is directly in point with our view of “occupying,” there is ample authority for extending occupancy beyond physical presence in the vehicle in voluntary self-removal or alighting cases. Industrial Fire and Casualty Insurance Company v. Collier, 334 So. 2d 148 (Fla. 3d DCA 1976); Nickerson v. Citizens Mutual Insurance Co., 393 Mich. 324, 224 N.W. 2d 896 (1975); Stoddard v. “Aid” Insurance Co. (Mutual), 97 Idaho 508, 547 P. 2d 1113 (1976); Nelson v. Iowa Mutual Insurance Company, 163 Mont. 82, 515 P. 2d 362 (1973); Whitmire v. Nationwide Mutual Insurance Company, 254 S.C. 184, 174 S.E. 2d 391 (1970). See also, Annot, 42 A.L.R.3d 501 (1972); 19 A.L.R.2d 513 (1951).

It seems to be an illogical interpretation of Sections 627.736(4)(d)(l) and (3) to afford the protection of occupancy to one who is alighting but has left the vehicle and to deny it to another whose ejection from the vehicle has been involuntary and accidental.

AFFIRMED.

LETTS, C. J., and HURLEY, J., concur.


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Citator

Cited By

  • Reynolds v. Allstate Ins. Co., 400 So. 2d 496 (Fla. 5th DCA 1981)
    …velocity to an object thrown from it to cause or contribute to injuries, Valdes v. Smalley, 303 So. 2d 342 (Fla.3d DCA 1974), cert. dismissed, 341 So. 2d 975 (Fla.1976), and of causing wind movement to dislodge a passenger, U.S. F.&G. Co. v. Daley, 384 So. 2d 1350 (Fla.4th DCA 1980). In the absence of effects caused by its movement or ability to move, and circumstances arising from the necessity that its use requires normal ingress and egress to and from it, Padron v. Long Island Insurance Company, 356 So. 2d…
  • Progressive Am. Ins. Co. v. Wladimir Tanchuk, 616 So. 2d 489 (Fla. 4th DCA 1993)
    …der the policy purchased by his employers from appellant. We affirm. This court has previously held one to be an occupant when blown out of the back of a truck and injured when falling to the roadway. See United States Fidelity & Guar. Co. v. Daly, 384 So. 2d 1350, 1351 (Fla. 4th DCA 1980). There we held: While we are unable to cite any prior decision which is directly in point with our view of “occupying,” there is ample authority for extending occupancy beyond physical presence in the vehicle in voluntary…
  • Dunlap v. United States Auto. Ass'n, 470 So. 2d 98 (Fla. 1st DCA 1985)
    …Fla. 1st DCA 1981), we are aware of no authority which would require extension of coverage to appellant under the circumstances presented here. On the other hand, following the reasoning of the court in United States Fidelity & Guaranty Co. v. Daly, 384 So. 2d 1350 (Fla. 4th DCA 1980), we are persuaded that the concept of “occupying,” or “occupant,” under the terms of the policy and the statute would extend and apply to one who is injured upon being struck by a motor vehicle immediately following an accidental…

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