Summary
holding that an injury did not arise out of the "ownership, maintenance or use of motor vehicle" where plaintiff was injured in an explosion caused when a cigarette ignited gasoline fumes from gas that had been siphoned from a car, because the car "was merely the coincidental and legally remote source of a component, the gasoline, which was itself harmless until acted upon by the insured's negligence"
Summary of this case from Zucker v. U.S. Specialty Ins. Co.Opinion
No. 91-2208.
January 26, 1993. Rehearing Denied March 9, 1993.
Appeal from the Circuit Court, Dade County, George Orr, J.
Jugo Murphy and Kathleen T. Murphy, Miami, for appellants.
Walton, Lantaff, Schroeder Carson and Geoffrey B. Marks, Miami, for appellee.
Before SCHWARTZ, C.J., and FERGUSON and GERSTEN, JJ.
At the owner's request, Almayor came to her home to "check out" and perhaps repair her car. In the course of working on the vehicle, which was parked in the driveway, Almayor siphoned gasoline from the tank and poured it into a bucket which was placed next to the steps of the house. At that point, one of the residents, Ramirez, who was insured by a State Farm homeowner's policy, came out of the house with a freshly-lit cigarette in his hand. The cigarette ignited the gasoline fumes and caused a fire and explosion which severely burned Almayor. He and his wife now appeal from a summary declaratory judgment granted State Farm that its policy did not cover Ramirez's potential liability because of the familiar "automobile exclusion."
The exclusion provides:
"1. Coverage L [Personal Liability does] not apply to:
* * * * * *
e. bodily injury or property damage arising out of the ownership, maintenance, use, loading or unloading of:
* * * * * *
(2). a motor vehicle owned or operated by or rented or loaned to any insured[.]"
We reverse on the ground that the accident "arose out of" Ramirez's allegedly negligent use of flammable material, not the ownership, maintenance or use of the motor vehicle under repair. Indeed, the car had little, if anything, to do with the fire at all. It was merely the coincidental and legally remote source of a component, the gasoline, which was itself harmless until acted upon by the insured's negligence. See Aetna Casualty Sur. Co. v. Goldman, 374 So.2d 539 (Fla. 3d DCA 1979), cert. denied, 385 So.2d 757 (Fla. 1980). Homeowner's insurance is expressly designed to protect against just this kind of individual liability. Conversely, automobile insurance and the automobile exclusion do not apply. Steir v. London Guarantee Accident Co., 227 A.D. 37, 237 N.Y.S. 40 (1929), aff'd, 254 N.Y. 576, 173 N.E. 873 (1930); Nationwide Mutual Fire Ins. Co. v. Allen, 68 N.C. App. 184, 314 S.E.2d 552 (1984), review denied, 311 N.C. 761, 321 S.E.2d 142 (1984); see Roche v. United States Fidelity Guar. Co., 247 A.D. 335, 287 N.Y.S. 38 (1936), aff'd, 273 N.Y. 473, 6 N.E.2d 410 (1936). See generally Hernandez v. Protective Casualty Ins. Co., 473 So.2d 1241 (Fla. 1985); Fortune Ins. Co. v. Exilus, 608 So.2d 139 (Fla. 4th DCA 1992); Hanson v. General Accident Fire Life Ins. Corp., 450 So.2d 1260 (Fla. 4th DCA 1984); O'Dwyer v. Manchester Ins. Co., 303 So.2d 347 (Fla. 3d DCA 1974); St. Paul Fire Marine Ins. Co. v. Thomas, 273 So.2d 117 (Fla. 4th DCA 1973), cert. denied, 282 So.2d 638 (Fla. 1973). Compare Volkswagen Ins. Co. v. Nguyen, 405 So.2d 190 (Fla. 3d DCA 1981), review denied, 418 So.2d 1280 (Fla. 1982) (automobile exclusion applicable when spark from automobile ignited gasoline being poured by insured into carburetor). Accordingly, the judgment is reversed with directions to enter judgment on coverage for the Almayors.
Reversed and remanded.