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New Hampshire Insurance Co. v. Oliver3/3/1999
Appellant, New Hampshire Insurance Company ("New Hampshire"), appeals from a partial summary judgment entered in favor of Appellee, Randall Oliver ("Oliver") concluding that, as a matter of law, Oliver was entitled to uninsured motorist coverage. We reverse and remand for further proceedings.
Oliver was an officer with the Seminole Tribe of Florida's Department of Law Enforcement (the "Tribe"). Vehicles driven by officers of the Tribe are insured under a policy issued by New Hampshire. The insurance coverage provided by New Hampshire includes underinsured and uninsured motorist benefits. On July 2, 1994, while on duty, Oliver was operating a stationary radar in one of the Tribe's police vehicles, when he clocked a blue Ford pick-up truck traveling in excess of 55 miles per hour. Oliver pursued the truck, and a high speed chase ensued. During the chase, Oliver lost sight of the truck, and turned around to determine whether the truck may have pulled off the road. Shortly thereafter, Oliver heard a woman crying for help, and upon looking in the direction of the cries, noticed the pickup truck submerged in a canal with a woman sitting on top. Oliver exited his police vehicle and attempted to rescue the occupants of the overturned vehicle. Oliver was injured while climbing in and out of the canal as part of his rescue efforts. The truck was driven by an uninsured motorist.
Following the incident, Oliver filed a complaint for declaratory relief and damages against New Hampshire, seeking a declaration that he was entitled to uninsured motorist ("UM") coverage under New Hampshire's policy. Thereafter, Oliver filed a motion for summary judgment on the issue of UM coverage. The trial court entered summary judgment in favor of Oliver, concluding that, as a matter of law, Oliver was entitled to UM coverage. This appeal followed. On appeal, New Hampshire maintains that Oliver was not entitled to uninsured motorist coverage under its policy issued to the Tribe. We agree.
The portion of New Hampshire's policy which gives rise to uninsured motorist coverage is entitled "Florida Uninsured Motorists Coverage Endorsement" ("UM endorsement"). Pursuant to the UM endorsement, New Hampshire provides UM coverage as follows:
"We will pay all the sums the "insured" is legally entitled to recover as compensatory damages from the owner or driver of an "uninsured motor vehicle". The damages must result from "bodily injury" sustained by the "insured" caused by the "accident". The owner's or driver's liability for these damages must result from the ownership, maintenance, or use of the "uninsured motor vehicle".
The UM endorsement identifies an "insured" as the named insured (i.e., Seminole Tribe of Florida Inc.), and "anyone else `occupying' a covered `auto'." "Occupying" is defined as being "in, upon, getting in, on, out or off" the covered vehicle.
While New Hampshire does not contest the fact that the police vehicle was a "covered auto" under the policy, New Hampshire, nevertheless, maintains that Oliver is not entitled to UM coverage pursuant to the above provision for two reasons. First, New Hampshire argues that because Oliver was not "occupying" the insured vehicle at the time he sustained his injuries, he does not qualify as an "insured" for purposes of UM coverage. Second, New Hampshire maintains that even if Oliver qualified as an "insured," he would still not be entitled to UM coverage as his injuries did not result from the "ownership, maintenance or use of the uninsured motor vehicle."
New Hampshire's first argument is sound, as Oliver makes no assertion that he qualifies as an insured under the UM endorsement because he was "occupying" the
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