2 Fla. L. Weekly Supp. 578c
Insurance — Automobile — Exclusions — Business use — Accident which occurred while insured was commuting to work not within scope of business use exclusion — Application — Misrepresentations — Insurer not responsible for reimbursing insured for loss where insured misrepresented on policy application that vehicle was to be used only for pleasure but indicated on accident claim form that she used vehicle for work all day
ESPERANZA CABALLERO, Petitioner, v. OAK CASUALTY INSURANCE COMPANY, Respondent. 11th Judicial Circuit in and for Dade County, Appellate Division. Case No. 93-224AP. Opinion filed December 2, 1994. An Appeal from County Court for Dade County, William J. Piquette, Judge. Counsel: Leo Bueno and Carlos Lidsky for petitioner. Marcia E. Levine for respondent.
(Before MARGARITA ESQUIROZ, CELESTE H. MUIR, and JUDITH L. KREEGER, JJ.)
(CELESTE H. MUIR, J.) This is an appeal from a trial court’s final judgment for the defendant-respondent, OAK CASUALTY INSURANCE COMPANY (OAK). The insured brought a breach of contract suit after her automobile insurance company denied coverage for property loss which resulted from an automobile collision. The issue is whether the trial court correctly found that the automobile accident was not covered by the policy when the plaintiff insured the vehicle only for pleasure usage and the accident occurred on an indirect route to work on the insured’s way to a patient’s house to carry out duties of the insured’s occupation.
We hold that the trial court erred in finding that the coverage was unavailable since commuting to and from work is personal use. Nevertheless, the trial court correctly denied coverage as coverage is unavailable under the policy when the insured misrepresents the extent of business use in applying for insurance coverage and the trial court characterized the plaintiff’s testimony on the subject as having been “watered down by a couple of little suggestions otherwise.” (T.70)
The plaintiff was employed as a phlebotomist at the time she purchased the insurance policy on her car. Under the application for the insurance coverage the plaintiff was asked to describe the intended use of the insured vehicle. Three categories were listed: to and from work, business, and pleasure. (R.24) The plaintiff indicated only that the vehicle would be used for pleasure. The insurance policy was issued for this purpose and the corresponding premium was paid.
As a phlebotomist, the plaintiff was employed to draw blood from patients. At the time of the accident, she was en route from her home to a patient’s home. Under subsequent claim forms, the plaintiff listed the nature of her vehicle’s usage as “for work” and indicated that she used her car “all day long” in her employment. Accordingly, OAK refused to cover the damage under an exclusion provision, which stated that
We will not pay for:
15. Loss to your covered auto while it is being used for or in the course of your employment or occupation, unless you have told us the car is for business use and you have paid the premium for business use. (R.31b)
The exclusionary clause for business use does not apply in this case because the accident occurred when the plaintiff was not driving for work, but to work. The State of Florida has applied the rule in worker compensation benefits cases that the coming and going from the place of work does not arise out of and in the course of the employment. Allen v. Estate of Carman, 281 So.2d 317, 323 (Fla. 1973); see also Martinez v. A&D Electrical Contractors, 510 So.2d 1043 (Fla. 1st DCA 1987), rev. den. 519 So.2d 987 (Fla. 1987) (rule applies even when first place of work is not regular place of work).
Other states have applied this rule to insurance coverage cases. See Taylor v. State Farm, 171 So.2d 816, 819 (La. 3rd C.C.A. 1965); Sargent v. Allstate, 303 S.E.2d 43, 45 (Ga. App. 1983); Empire Fire and Marine Insurance Company v. Midwestern Indemnity Company, 402 N.E.2d 998, 1000 (Ind. 1st DCA 1980). But see North American Training Academy v. Grooms, 476 So.2d 753 (Fla. 1st DCA 1985), rev. den. 486 So.2d 597 (Fla. 1986) (employee is considered to be working, for workers compensation purposes, from time she leaves home until time she returns when employment involves traveling throughout the day and the expense of such travel is, or will be, compensated by the employer); Eady v. Medical Personnel Pool, 377 So.2d 693 (Fla. 1979) (exception from coming and going rule when employee traveling on a special errand for the employer).
The plaintiff was on her way to a patient’s home where she would perform her first job duty of the day, drawing blood from the patient. Her drive was not a business endeavor but a personal use of her vehicle to get to her place of work. The property damage to plaintiff’s car which resulted from the accident was, therefore, covered by her insurance policy because it occurred during the personal use of her vehicle.
However, the defendant, OAK, is not responsible for reimbursing the plaintiff for her losses because she misrepresented the use of her vehicle in her application for insurance. The plaintiff indicated that the insured vehicle would only be used for pleasure, not business or commuting.
The trial court, as fact finder, determines the credibility of witnesses and weighs the testimony. Morrone v. Miami National Bank, 507 So.2d 652 (Fla. 3d DCA 1987); Marsh v. Marsh, 419 So.2d 629 (Fla. 1982). In the present case, the trial judge noted that the evidence suggested that it was not an unusual situation for the plaintiff to drive to a patient’s home. At the time the plaintiff purchased the insurance policy, she had been employed as a phlebotomist in the same company for approximately nine months. However, on the insurance application, the plaintiff, when asked to mark all categories which applied in reference to the use of the insured vehicle, marked only pleasure, not commuting to work or business use.
Subsequent to the accident, the plaintiff filled out an insurance claim form regarding additional information about the vehicle’s usage. The plaintiff indicated that her vehicle is used for work, all day long, to go to patients’ homes. The discrepancy between the usage of plaintiff’s automobile in her policy application and the accident claim form is a material misrepresentation of the vehicle’s usage and allows the insurance company to deny coverage under the terms of the contract. Therefore, the defendant insurance company is not liable for coverage of the plaintiff’s property loss.
We hold that because the plaintiff was on her way to work, the use of her vehicle was personal and, therefore, covered under the insurance policy; however, because she misrepresented the use of her automobile to the insurer in her application as her use of the vehicle “all day long” for employment was daily, necessary, and not incidental, the trial court correctly denied coverage to the plaintiff.
We affirm the judgment below for the reasons stated. (JUDITH L. KREEGER, J. concurs.)
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(MARGARITA ESQUIROZ, J. concurs specially.) I concur with the result reached by the majority because it is my view that the insurance policy exclusion for use “in the course of employment” precludes coverage herein and the trial judge so correctly ruled. I disagree that the “coming and going” rule applies to the contractual dispute at issue, which is governed strictly by principles of contract law.
For the reason stated herein, I would therefore affirm the lower court’s judgment in favor of appellee.
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