12 Fla. L. Weekly Supp. 716a
Insurance — Personal injury protection — Coverage — Foreseeable consequence of operating vehicle — Injuries suffered while fleeing attack in vehicle — Where insured who had been involved earlier in evening in bar fight was later attacked again at friend’s residence and dragged out of allegedly running vehicle while attempting to flee, insured’s injuries arose out of relationship with attackers, not operation of vehicle, and there is no PIP coverage for injuries — Error to enter summary judgment for insured
PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, vs. KRAIG BREAUX, Appellee. Circuit Court, 13th Judicial Circuit (Appellate) for Hillsborough County. Case No. 04-4319. Division X. L.T. Case No. 99-9857-CC. January 10, 2005. Review of a final order of the County Ct., Hillsborough County. Juris: Fla. R. App. P. 9.030(c)(1)(A). Counsel: Valeria Hendricks, Tampa, for Appellant. Donovan A. Roper, Roper & Roper, P.A., Apopka, for Appellee.
(MARVA L. CRENSHAW, J.) Appellant Progressive Express Insurance Company appeals a final summary judgment entered against it in the county court. Appellant’s ground for appeal is that because the insured suffered injuries in an assault that was unrelated or merely incidental to his operation of his vehicle, personal injury protection (PIP) coverage did not exist as a matter of law. We disagree with the conclusion of the county court that there was a connection between the operation of the vehicle and Appellee’s injuries, and we reverse its decision. The facts are as follows.
Appellee (plaintiff below) Kraig Breaux filed a complaint against Appellant Progressive Express Insurance Company (“Progressive”) in June 1999, contending that Progressive failed to pay PIP benefits due him for medical expenses and lost wages he incurred as a result of injuries he suffered in an “altercation” that occurred on May 8, 1999. The undisputed facts were that after helping one Jim Blazer with some yard work, Breaux drove Blazer and Blazer’s roommate Aaron Dulberger to Hooters for beer and wings. While at Hooters, two other men — “Dubby” and Kevin Blankenship — joined them. After finishing a couple pitchers of beer, the men went to a pool hall where they played 11 games of pool.
The following is subject to some dispute. The Plaintiff testified that he felt like Dulberger and Blankenship were “teamed up against” him. Blazer stated that Breaux incited Blankenship in some fashion. Nevertheless, before Breaux left, he bought everyone a drink. The altercation apparently escalated as Breaux asked for his tab. According to Breaux, Blankenship initiated an unprovoked attack when he “coldcocked” Breaux in the pool hall. Breaux was not badly injured, however. Breaux and Blazer left the pool hall and went to Blazer’s house. Apparently, he fell asleep there.
Subsequently, Blankenship and Dulberger stormed through the door, grabbed Breaux and began punching him. That altercation, in which he was “struck repeatedly,” lasted about 15 to 30 seconds, according to Breaux. According to Blazer it was about 10 minutes. Both testified that a number of blows were struck during that time. Breaux managed to break free and ran outside trying to get in his car. According to Breaux, he started his vehicle and was trying to get his window up when the men grabbed him through the window, opened the vehicle door, and pulled him out to the ground, where they kicked and beat him. Blazer initially testified that Breaux was not pulled from his running vehicle or struck again; however, later he admitted that he did not know whether Breaux had been struck again because it was dark outside and the lighting was not good. Both agree that the men then started beating on the hood of Breaux’s vehicle as he retreated in it. Breaux later sought medical attention. There is no doubt that Breaux’s injuries were substantially more severe after the attack at Blazer’s home.
The trial court concluded that Breaux was entitled to PIP benefits because he was operating his vehicle when he was injured. On Motion for Rehearing, which the trial court denied, Progressive argued that the trial court overlooked its argument that the Breaux’s Motion for Summary Judgment did not comply with rule 1.510(c), that there were disputed material facts precluding summary judgment in favor of the plaintiff, and alternatively, that, as a matter of law, the undisputed material facts showed that the altercation did not arise out of the use of the Plaintiff’s vehicle. On April 12, 2004, the trial court entered Final Summary Judgment in favor of the Breaux. Progressive filed a timely notice of appeal on May 5, 2004.
Appellant contends that the trial court erred as a matter of law in denying Progressive’s Motion for Summary Judgment because the undisputed facts of the case, when viewed in a light most favorable to Breaux, reveal that Breaux’s injuries did not arise from the use of a motor vehicle, as required by section 627.736(1), Florida Statutes (1999). Rather, Breaux’s injuries were the result of an attack that began prior to Breaux’s even approaching his vehicle. Breaux’s injuries were not provoked by or causally related to his use of his motor vehicle; instead it was the mere site where some of his injuries occurred.
Conversely, Appellee contends that the trial court was correct as a matter of law in denying Appellant’s Motion for Summary Judgment because the undisputed facts of the case, when viewed in a light most favorable to Breaux demonstrates that his injuries did arise out of the use or operation of the insured vehicle, that it was not the mere situs of injury, and that as the Florida Supreme Court has repeatedly stated, this was a “reasonably foreseeable” intentional criminal act which is compensable under Florida PIP law.
As we noted above, some of the facts are in dispute. However, even taking Breaux’s version of the facts as true, that Appellee was dragged out of his allegedly running automobile while attempting to flee does not change the fact that this fight began much earlier in the evening at a bar, resumed inside Mr. Blazer’s home, and was ended when Breaux left the premises. The question then becomes whether the automobile was such a factor that Appellee could make a claim against his PIP policy, or was it merely incidental to a conflict that began hours before the car got in the middle of it?
Both parties cite Blish v. Atlanta Casualty Co., 736 So.2d 1151 (Fla. 1999) in support of their arguments. In Blish, the supreme court held that injuries suffered when a motorist stopped to fix a flat tire and was attacked by unknown assailants were covered by the motorist’s PIP policy. The court’s rationale was that the PIP statute §627.736 is to be construed liberally in favor of coverage, and that the assault was a foreseeable consequence of operating an automobile. In Blish, the injuries occurred because the insured had been stranded by his automobile and was effecting repairs to the vehicle when he was attacked. The Court opined:
Is the injury a reasonably foreseeable consequence of the use (or the ownership, or the maintenance) of the vehicle?
In the present case, Blish’s injuries were an unfortunate but eminently foreseeable consequence of the use and maintenance of the pickup truck: Blish was using the truck for routine transportation purposes after dark when the truck sustained a mechanical failure, i.e., a blowout; he responded in a normal and foreseeable fashion, i.e., he attempted to change the tire on site with the tools and spare tire he carried in the vehicle for that purpose; he was in the acts of repairing the vehicle, i.e., he was turning the lug nuts on the faulty tire, [when he was assaulted and] when he was injured.
Under these circumstances, the actual source of the injury-causing blow is not dispositive — whether it came from a negligent driver from a passing vehicle or a violent group of passing thugs is not decisive. It was the use and maintenance of the truck the left Blish stranded and exposed to random acts of negligence and violence, and he was in the very act of performing emergency maintenance on the vehicle when he was injured.
Acts of violence are an ageless and foreseeable hazard associated with the use of a vehicle — for once a person sets out in a vehicle, he or she is vulnerable. The highwaymen and desperados of bygone times preyed on the wayfarer, and these villains are with us still. Each Floridian today, when he or she gets behind the wheel, faces a variety of dangers: a car-jacking at a stop light, or a strong-arm robbery at a deliberately staged rear-end collision, or a road rage assault in rush hour traffic, or even a random shooting by an anonymous sniper from an overpass. The danger is particularly acute when the motorist is stranded as the result of a disabled vehicle.
The scenario . . .is every motorist’s nightmare.
Appellee contends that Blish supports coverage in this case. Appellant distinguishes Blish from the instant case because the circumstances in which Breaux’s injuries occurred are not a foreseeable consequence of operating an automobile. Indeed, Justice Shaw’s opinion in Blish stressed the foreseeability of someone’s being robbed on the side of the road while stranded by vehicular failure. Here, the fact that the fight which led to the injuries started elsewhere and only ended at the car, despite the fact that it was “in use” at some point, makes this situation distinguishable from Blish. It is not enough that the injury occur incidentally to the use of an automobile or for the automobile to be the situs where the injury occurred . . . there must be a causal connection or relation between the two for liability to exist. See Hernandez v. Protective Casualty Insurance Co., 473 So. 2d 1241 (Fla. 1985).
Interestingly, the facts in Hernandez, 473 So. 2d 1241 (Fla. 1985), are similar to those of the instant case. Therein, the plaintiff suffered injuries when he was forcefully pulled from his automobile by police during a traffic stop. The supreme court concluded that coverage existed because the plaintiff was “using the vehicle for the purpose of transportation, which use was interrupted by his apprehension by police officers. It was the manner of [the insured’s] use of his vehicle which prompted the actions causing his injury.” Id. While the facts are similar in the instant case, the surrounding circumstances differ in that Hernandez involved a traffic stop, and the interaction began in or at the car as a result of the operation of the car, as opposed to the instant situation, where the altercation ended at the car, notwithstanding Breaux’s attempt to retreat in it.
Compare Government Employees Ins. Co. v. Novak, 453 So.2d 1116 (Fla. 1984), in which the supreme court determined there was coverage for a motorist, who, after refusing to give a ride to a pedestrian was shot in the face by the rejected pedestrian. Although in Novak the supreme court called the incident an “unexpected” accident, the conclusion that the incident arose out of the use of the automobile is nonetheless consistent with Blish and Hernandez.
The facts of the instant case are more consistent with those in Feltner v. Hartford Accident & Indemnity Co., 336 So. 2d 142 (Fla. 2d DCA 1976). In Feltner, the injured insured had been the victim of an attack by his passenger’s father while they were in the car. The Second District held that there was an insufficient connection between the insured’s use of his vehicle and his injuries resulting from the attack. Id. Indeed, the supreme court in Hernandez distinguished its facts from those in Feltner noting that the use of the vehicle in Feltner “was only incidental to the assault and the driver’s resultant injury. The provocation for the assault was the relationship between the driver and the [passenger] and was not in any way connected with the use of the vehicle.” 473 So. 2d at 1243. Thus, in Hernandez the injuries arose out of the use of the automobile (injuries inflicted by police during a traffic stop), while in Feltner the injuries arose out of the relationship between the parties and only happened to occur in the car. Taking all the above cited cases together, we conclude that in the instant case, Breaux’s injuries arose out of the relationship with his attackers and not the operation of his vehicle.
Because we reverse the decision of the trial court on substantive grounds, we decline to consider the procedural issues before us.
It is therefore ORDERED that the decision of the trial court is REVERSED and the cause REMANDED for proceedings consistent with this opinion. It is further ORDERED that Appellee’s motion for attorney’s fees is DENIED. (Battles and Holder, JJ., concur.)
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