3 Fla. L. Weekly Supp. 493a
Insurance — Personal injury protection — Insured murdered after she had walked to her parked car, entered it, and started car engine — Evidence that assailant had waited in parking lot long enough to see decedent walk to her car and enter it was sufficient to permit trial court to reasonably infer that assailant deliberately refrained from shooting decedent until she was inside the car and would present a stationary target — Sufficient nexus existed between insured’s death and insured’s automobile to support trial court’s award of PIP benefits to decedent’s husband
ALLSTATE INSURANCE COMPANY, Appellant, vs. CONNILOUS T. LORROW, Personal Representative and Surviving Spouse of Marisa Maugeri, Appellee. 11th Judicial Circuit in and for Dade County. Case No. 94-405 AP. Opinion filed November 3, 1995. Appeal from the County Court of Dade County, Shelley Kravitz, J. Counsel: Fred M. Kray, for Appellant. Leslie Hecker, for Appellee.
(Before Steven Robinson, Allen Kornblum and Gerald Hubbart, JJ.)
(HUBBART, J.) Appellant Allstate Insurance Company appeals a judgment awarding personal injury protection damages under an auto insurance policy which insured the Appellee’s murdered wife. The Appellant contends, inter alia, that there was an insufficient nexus between the insured’s death and the operation of the insured’s automobile.
The case was tried by the court below without a jury. No live testimony was heard. Rather, the parties submitted transcripts of the testimony of witnesses for the court to read along with other relevant documents.
The facts show that on the evening of November 21, 1989 the deceased and her sister, Mercedes Estevez, went grocery shopping at a Publix grocery store. They arrived there in the deceased’s blue Mercedes Benz. The deceased parked her car in an area of the parking lot which was poorly lit and near an alley. After completing their shopping, the two sisters stepped outside the store. The deceased went to get the car while Ms. Estevez remained at the front of the store with their purchases and a bagboy.
Ms. Estevez looked at the deceased as she walked toward the car. She looked down and heard a pop which caused her to look up. She saw a man quickly approaching the car from the left near the edge of the building. He stopped at the driver’s side window and looked in. He then fled the area and was never apprehended. Ms. Estevez began screaming which alerted Officer James Waldron of the North Miami Police Department who was nearby. Officer Waldron went to the deceased’s car and noticed that the driver’s side window had a bullet hole in it. The car engine was running and the doors were locked. The window was broken by a bystander so that the door could be opened. The deceased had sustained a gunshot wound to her head which caused her death. Over the Appellant’s objection, Officer Waldron and another officer testified that in their opinion, the killer was planning on committing a robbery of either the deceased’s car or purse, although neither had been taken.
The trial court found for the Appellee, holding that there was a sufficient nexus between the shooting and the operation of the motor vehicle. Specifically, the court found that the killer had waited until the deceased had entered the vehicle before he shot her. The court further found that the killer had ample time to attack the deceased before she entered the car. Significantly, the court made no determination of whether robbery may have been the motive for the attack.
The Appellee contends that the evidence does not warrant the inference that the killer had deliberately waited until the deceased entered her car before firing, and that other reasonable inferences show that the killer’s intent to shoot the deceased was unrelated to her presence in the car. Criminal intent frequently, and as is the case here, cannot be proven except by circumstantial evidence. In civil cases, where a fact is proven by circumstantial evidence, inferences pointing to the existence of that fact must outweigh — not exclude — all reasonable contrary inferences. See Coral Gables Savings and Loan Association v. City of Opa-Locka, 516 So.2d 989, 991 at footnote 3 (Fla. 3d DCA 1987).
Based on the facts presented by the record in this case, the conclusion drawn by the trial court is reasonable and outweighs any reasonable contrary hypothesis. Obviously, the killer had been waiting long enough to see the deceased walk to her car and enter it. If he had not, there would have been no reason for him to fire into the car. From those facts, the trial court reasonably inferred that the killer deliberately refrained from shooting the deceased while she was outside the car, preferring to wait until she was inside the car where she would present, for a few moments, a stationary target. And, as the trial court pointed out, if the killer’s decision to shoot the deceased was unrelated to her presence in the car, he could have shot her on her way to the car.
Appellant further contends that it was error for the trial court to consider the testimony of two officers to the effect that the killer was planning to rob the deceased of her car and/or her purse. However, it is not clear if the trial court relied on this testimony since there is no mention in the findings that the motive of the killer was robbery. We therefore conclude that any error was harmless. See Hartford Insurance Co. v. City of Sanibel, 500 So.2d 581 (Fla. 2d DCA 1986).
Since we sustain the trial court’s finding that killer decided to shoot the victim when she was inside rather than outside the car, it follows that there is a nexus between the shooting and the operation of the vehicle. Accordingly, we affirm the trial court’s award of PIP damages. See Government Employees Insurance Company v. Novak, 453 So.2d 1116 (Fla. 1984) and cases cited therein. (STEVEN ROBINSON and ALLEN KORNBLUM, JJ., concur.)
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