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New Hampshire Insurance Co. v. Oliver3/3/1999
cause he suspected that the driver was DUI. Id. at D1540. After the driver failed several roadside sobriety tests, the officer informed her that she was under arrest. Id. As the officer attempted to handcuff the driver, she resisted, injuring the officer. Id. The officer sued his UM insurer, arguing that there was a sufficient connection between his injury and the uninsured vehicle so as to trigger UM coverage. Id. We found that the officer's injury occurred as a result of the driver's resistance, not as a result of the ownership, maintenance or use of the uninsured vehicle. Id. As such, the officer was not entitled to UM coverage.
We see this case similarly. Here, as in Niglio and Kelly, we do not believe that the uninsured vehicle produced Oliver's injuries. Oliver was injured as a result of climbing in and out of the canal in his attempts to rescue the occupants of the uninsured vehicle. While the driver's negligent use of the vehicle may have contributed to the conditions necessitating Oliver's rescue efforts, it was the rescue efforts, not the vehicle itself or the conduct of the driver which produced the injury. Thus, since the uninsured vehicle only contributed to the conditions that produced Oliver's injuries, we conclude that Oliver's injuries did not result from the "ownership, maintenance or use" of the uninsured motor vehicle. See Niglio, 679 So. 2d at 325-326; Kelly, 23 Fla. L. Weekly at D1540.
Oliver further argues that he is entitled to UM coverage based on the "rescue doctrine." We disagree. The basic precept of the "rescue doctrine" is that the person who has created a situation of peril for another will be held in law to have caused peril not only to the victim, but also to his rescuer, and thereby to have caused any injury suffered by the rescuer in the rescue attempt. Zwinge v. Hettinger, 530 So. 2d 318 (Fla. 2d DCA 1998). While this doctrine may be helpful to Oliver in stating a claim against the uninsured driver, we do not believe that it is applicable in this policy action against New Hampshire.
Accordingly, because Oliver was not "occupying" the insured vehicle at the time of his injuries, nor did his injuries result from the "ownership, maintenance or use" of the uninsured vehicle, we conclude that Oliver was not entitled to UM coverage under New Hampshire's policy. As such, we reverse the summary final judgment in favor of Oliver and remand for entry of a final judgment in favor of New Hampshire consistent with this opinion.
DELL, GUNTHER and GROSS, JJ., concur.
NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.
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