25 Fla. L. Weekly Supp. 980a
Online Reference: FLWSUPP 2511TURKInsurance — Personal injury protection — Coverage — Lost wages — Bodily injury “arising out of” ownership, maintenance or use of vehicle — Plaintiff who was shot by police while he was occupying and using his car, which was parked in his driveway with the motor running, sustained bodily injury arising out of ownership, maintenance or use of vehicle is entitled to lost wage benefits
JASON TURK, Plaintiff, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 15-CC-31107, Division L. January 29, 2018. Michael S. Williams, Judge. Counsel: Christopher P. Calkin and Mike N. Koulianos, The Law Offices of Christopher P. Calkin, Tampa, and David M. Caldevilla, de la Parte & Gilbert, P.A., Tampa, for Plaintiff. Randall A. Wainoris, Dutton Law Group, P.A., Tampa, for Defendant.
ORDER ON COMPETING MOTIONSFOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on December 11, 2017, concerning “Defendant’s Motion for Final Summary Judgment” dated July 14, 2017 and “Plaintiff’s Amended Motion for Partial Summary Judgment” dated November 16, 2017. The Court, having considered the motions, the arguments of counsel, the admissible evidence, and the record, and being otherwise advised in the premises,
ORDERED AND ADJUDGED as follows:
1. This lawsuit involves both Plaintiff’s claim for personal injury protection (“PIP”) insurance benefits in the form of lost wages, as well as a claim for declaratory relief concerning the alleged failure and refusal of Defendant United Services Automobile Association (“USAA”) to reimburse PIP benefits for the Plaintiff’s lost wages.
2. Under the Florida Motor Vehicle No-Fault Law, automobile operators are required to secure PIP insurance that provides “personal injury protection to the named insured, . . . to a limit of $10,000 in medical and disability benefits . . . resulting from bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle …..” §627.736(1), Fla. Stat. (emph. added).
3. As explained in greater detail below, the undisputed material facts demonstrate that on January 9, 2014, the Plaintiff was shot and injured while using his motor vehicle, and that the bodily injuries he sustained arose out of his use of the motor vehicle. See Deposition of Plaintiff, Jason Turk (March 20, 2017). Therefore, the Plaintiff is entitled to PIP lost wages benefits. See, Blish v. Atlanta Casualty Company, 736 So.2d 1151 (Fla. 1999) [24 Fla. L. Weekly S204a]; Government Employees Ins. Co. v. Novak, 453 So.2d 1116 (Fla. 1984); Hernandez v. Protective Casualty Ins. Co., 473 So.2d 1241 (Fla. 1985).
4. As previously noted, Section 627.736(1), in pertinent part, states that a PIP insurer must provide PIP benefits for “bodily injury … arising out of the ownership, maintenance, or use of a motor vehicle ….” (Emph. added).
5. In Blish, the Florida Supreme Court provided guidance for evaluating whether an injury “arises out of the ownership, maintenance, or use of a motor vehicle.” Id., 736 So.2d at 1155. First, the courts must “liberally” construe the PIP statute “to effect the legislative purpose of providing broad PIP coverage for Florida motorists.” Id. (citing to Novak, 453 So.2d at 1119). “Second, a key issue in deciding coverage is whether the type of injury sustained by the insured was reasonably in the minds of the contracting parties. Accordingly, when construing the phrase ‘arising out of’ noted above, courts should ask: Is the injury a reasonably foreseeable consequence of the use (or the ownership, or the maintenance) of the vehicle?” Blish, 736 So.2d at 1155.
6. In Blish, a tire blowout forced the insured to the side of the road to change his tire. While changing the tire, the insured was attacked from behind by several assailants. The insured filed a claim for benefits under the PIP portion of his auto insurance policy. Applying the above-stated standard, the Court in Blish determined that the insured’s injuries were a reasonably foreseeable consequence of his use and maintenance of his vehicle, and that the insured’s “injuries thus ‘arise out of the ownership, maintenance, or use of a motor vehicle’ and are covered under the PIP portion of [the insured’s] auto insurance policy.” Id., 736 So.2d at 1155.
7. The Court in Blish went on to clarify that “the actual source of the injury-causing blow is not dispositive . . . [and] the motivation of the assailant — whether it be to ‘possess or use’ the vehicle, or steal the victim’s wallet or purse, or simply to harm the victim — is a nonissue to the consumer.” Id., 736 So.2d at 1155 (emph. added). “Losses resulting from a violent encounterwith this ageless road hazard — i.e., the highwayman or opportunistic thug — might reasonably be said to be very much in the contemplation of Florida consumers when they are contracting to purchase auto insurance.” Id., 736 So.2d at 1155 (emph. added). Finally, the Court in Blish indicated that, for questions regarding coverage in similar scenarios, its prior decisions in Novak and Hernandez, placed insurance companies on notice that the Florida PIP statute contemplates broad coverage. Blish, 736 So.2d at 1155. In Novak, PIP coverage was extended to an insured who was “in her car and about to drive away from her residence when she was approached by [her assailant], a stranger to her,” and shot in the face. Id., 453 So.2d at 1117. In Hernandez, PIP coverage was extended to an insured who suffered injuries as a result of police violence as he was extracted from his vehicle by police officers. Id., 473 So.2d at 1243.
8. In this case, it is undisputed that the Plaintiff was shot by police, while he was occupying and using his car, which was parked in his driveway with the motor running. As made clear by Blish and Hernandez, it is immaterial that the Plaintiff’s injuries were inflicted by the police. Also irrelevant are the motivations of the police officer who shot the Plaintiff. This Court’s inquiry must focus solely on the parameters set forth in Blish. Applying those standards, the undisputed material facts confirm that the Plaintiff’s injuries are the type covered by PIP insurance. Plaintiff was occupying and using his car at the time the police approached (i.e. he was seated in vehicle, the engine was running, and the headlights, heat, and interior lights were on). Then, while the Plaintiff was using his car (as he rolled down his electric window so that he could see the police officer and hear his commands), the police officer shot the Plaintiff twice in the face causing injury to the Plaintiff. As explained in Blish:
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 stoplight, 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.
Id., 736 So.2d at 1155 (emph. added).
9. Surely, if the Florida Supreme Court recognized that being shot by anonymous sniper is a reasonably foreseeable consequence of using a vehicle, and that the source of the injury-causing blow or motivation of the assailant is immaterial, then it must also be true that gun-fire or any other type of police violence, whether lawful or unlawful, is also a reasonably foreseeable consequence of using a vehicle. Indeed, in Blish, the Court made it clear that police violence was an equally foreseeable consequence of the use of a vehicle, by citation to its predecessor opinion, Hernandez, which involved a PIP insured who was injured by police violence. Thus, the Plaintiff’s injuries, suffered as a result of a “violent encounter,” are “very much in the contemplation” of the contracting parties in this case, and PIP benefits must be afforded.
10. Importantly, the Florida Supreme Court in Blish broadened the standard used to determine coverage in these cases from its previous holdings that required the more stringent standard of “some nexus” or a “causal connection” between the injury and use of the motor vehicle, or where the motor vehicle was the “mere situs” of an unrelated injury-causing event. Instead, as stated in Blish, “[t]he results under [some nexus, causal connection or situs] standards, however, have not been consistent. In an effort to resolve these inconsistencies, we now set forth the following guidelines.” (emph. added). (Those guidelines are specifically referenced above). This is important because Hernandez had previously required (and found) “some nexus” between the injury and use of the motor vehicle, even though the “some nexus” standard creates a more restrictive rule than the Blish “reasonably foreseeable” rule. So, while the Court in Hernandez provided coverage to the insured under a more restrictive standard, Blish replaced that restrictive standard with the broader, “reasonably foreseeable” standard.
11. In this case, the Plaintiff’s injuries were caused solely by two gunshots fired by a police officer, both striking Plaintiff in the face, while the Plaintiff was sitting in and otherwise using his car. Similar to the insured in Hernandez, the Plaintiff in the case at bar was surrounded by police while he was occupying and using his vehicle (i.e., he was seated in the vehicle, the engine was running, and the headlights, heat, and interior lights were on). Controlling Florida Supreme Court precedent dictates the identity or motive of the assailant is immaterial. See, Blish, Hernandez, Novak. Encountering police violence and suffering resulting injury is a reasonably foreseeable consequence of using a motor vehicle in this manner. See, Blish; Hernandez; Novak.
12. USAA misplaces its reliance on Progressive Express Ins. Co. v. Breaux, 2005 WL 1091427 (Fla. 13th Jud. Cir., App. Div. 2005) [12 Fla. L. Weekly Supp. 716a]. In Breaux, the court distinguished Blish, because the altercation which led to the insured’s injuries originated elsewhere and only ended at the vehicle. Breaux, at 2. More specifically, in Breaux, the insured was involved in a bar fight, left the bar, and went to a friend’s residence. Id., at 1. Sometime thereafter, the assailants showed up to the residence and began beating the insured inside of the house. Id. The insured broke free, fled, and got into his vehicle where the assailants pulled the insured back out of his vehicle and allegedly struck him again. The court in Breaux found no PIP coverage to exist, as the fight “only ended at the car.” Id., at 1-2 (emph. added).
13. Clearly, the facts in this case are in stark contrast to those in Breaux, and are most similar to the Florida Supreme Court cases mentioned herein. The Breaux opinion offers no support to USAA’s position whatsoever. Moreover, to the extent that Breaux is contrary to the Florida Supreme Court’s decisions in Blish, Hernandez, and Novak, the Florida Supreme Court’s decisions control.
14. USAA also misplaces its reliance on Feltner v. Hartford Accident and Indem. Co., 336 So.2d 142 (Fla. 2d DCA 1976), and Watson v. Watson, 326 So.2d 48 (Fla. 2d DCA 1976). First, the Feltner case does not involve a gun at all. Second, both opinions were issued in 1976, some 23 years prior to the Florida Supreme Court’s controlling decision in Blish. Thus, any contrary holdings in Feltner and Watson are superseded by Blish. The court in Feltner, much like the court in Breaux, discussed in great detail, and thereafter relied upon, the apparent relationship of the parties that existed, transpired, and developed outside of the vehicle. The court denied PIP coverage, based on its conclusion that there was an “insufficient causal connection between the use of the automobile and the attack on [the insured].” Feltner, 336 So.2d at 143 (emph. added). Similarly, in Watson, the court held there was “no causal connection” between the incident and the use of the automobile. Id., 326 So.2d at 50. That “causal connection” standard is superseded by the broader and controlling test announced by the Florida Supreme Court in Blish.
15. In summary, the type of violence encountered by Plaintiff in this case is a reasonably foreseeable consequence arising out of his use of his vehicle. Consequently, his lost wages are covered losses under Section 627.736(1)(b), Florida Statutes, and the insurance policy. Accordingly, USAA’s Motion for Final Summary Judgment is DENIED, and Plaintiff’s Amended Motion for Partial Summary Judgment is GRANTED.
16. With respect to the Plaintiff’s claim for declaratory relief, this Court hereby declares that the Plaintiff incurred bodily injuries “arising out of the ownership, maintenance, or use of a motor vehicle” as contemplated by Section 627.736(1), Florida Statutes, and he is, therefore, entitled to recover up to $10,000 in disability/lost wage benefits pursuant to Section 627.736(1)(b).
17. This is a non-final order, and the Court reserves jurisdiction to determine claims for supplemental relief, damages, and reasonable attorneys’ fees and costs.
