10 Fla. L. Weekly Supp. 914a
Insurance — Personal injury protection — Coverage — Where there is no evidence that gunshot wound inflicted on driver while driving vehicle was inflicted in any other manner than by accident and no suggestion that gunshot was caused by operation or maintenance of vehicle, there is not a sufficient nexus to indicate death was result of ownership, maintenance or use of vehicle — Summary judgment granted in favor of insurer
TED and ANNETTE NIZIOL et al., Plaintiff, vs. PROGRESSIVE INSURANCE COMPANY, Defendant. County Court, 6th Judicial Circuit for Pasco County. Case No. 51-2000-CC-1755-WS. Division O. October 31, 2002. William G. Sestak, Judge. Counsel: Angela Cabassa, Mechanik, Nuccio, Williams, Hearne & Wester, P.A., for Plaintiff. Joseph F. Diaco, Jr., Adams, Blackwell & Diaco, P.A., for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE coming before the Court on the Defendant’s Motion for Summary Judgment; and the Court having reviewed the pleadings including the memorandums filed in support of and in opposition to the Motion; the Court also having reviewed its Order denying Plaintiff’s Motion for Summary Judgment dated May 8, 2002; and the Court having re-read the decision in Blish v. Atlanta Casualty Company, 736 So. 2d 1151 (1999); and the Court finding that:
1. Plaintiff seeks a PIP death benefit from the policy of insurance issued by Defendant regarding the death of TED NIZIOL II, from a gunshot wound while he was operating a motor vehicle insured by Defendant.
2. Pursuant to Amended Complaint, the gunshot wound that caused the death of TED NIZIOL II was accidentally inflicted by a passenger.
3. There is no evidence to suggest that the gunshot wound was inflicted in any other manner than by accident. In other words, there is no evidence to suggest that the gunshot wound was inflicted as a result of a car jacking; drive-by shooting; robbery; or theft of the vehicle.
Further, there is nothing to suggest to this Court that the accidental gunshot was caused by the operation or maintenance of the vehicle, i.e., the gun discharging because of the condition of the roadway; or weather conditions; or that the gun fell and discharged from a compartment in the vehicle.
4. The only ‘nexus’ between the ownership; maintenance; or use of the motor vehicle and the death of TED NIZIOL II, is that the accidental gunshot occurred in a motor vehicle.
5. Based on a thorough reading of the Blish case, and the cases cited therein; there is not a sufficient nexus to indicate to this Court that the death of TED NIZIOL II was as a result of the ownership; maintenance; or use of a motor vehicle.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion for Summary Judgment is GRANTED; and the Plaintiff, TED and ANNETTE NIZIOL, as Personal Representative of the Estate of Ted Anthony Niziol II, shall take nothing by this action, and the Defendant, PROGRESSIVE INSURANCE COMPANY, shall go hence without day; it is further
ORDERED AND ADJUDGED that the Court shall retain jurisdiction to determine the entitlement, if any, to Defendant’s Claim for Attorney’s fees and to determine the amount of court costs to be awarded Defendant as the prevailing party.
* * *
