FLORIDA COURTS GIVE BROAD APPLICATION TO THE AUTOMOBILE EXCLUSION
Hugh J. Connolly , Esq. • Volume 3, Issue 12 December 2009

INTRODUCTION
A standard general liability insurance policy contains an auto exclusion precluding coverage for “bodily injury” arising out of the ownership, maintenance, or use of any “auto.” We are often asked by claim examiners whether the auto exclusion encompasses claims of negligence that, at first glance, appear to be separate and distinct from a typical claim of auto negligence. The answer depends on whether the injury complained of “arises out of” the ownership, maintenance, or use of the auto. The auto exclusion is focused solely upon the genesis of the plaintiff’s injuries. The auto exclusion is not based upon the plaintiff’s theory of liability. Thus, if the injuries arise out of the ownership, maintenance, or use of an auto, then coverage is excluded regardless of the plaintiff’s theory of liability.

CONSTRUCTION OF THE TERM “ARISING OUT OF”
The auto exclusion utilizes the term “arising out of,” which the Florida Supreme Court has held to be unambiguous and broad in scope: “The term ‘arising out of’ is broader in meaning than the term ‘caused by’ and means ‘originating from,’ ‘having its origin in,’ ‘growing out of,’ ‘flowing from,’ ‘incident to’ or ‘having a connection with.’” Taurus Holdings, Inc. v. United States Fid. & Guar. Co., 913 So.2d 528, 539 (Fla. 2005). See also Martinez v. Citizens Prop. Ins. Corp., 982 So.2d 57 (Fla. 2d DCA 2008) (The term “arising out of” requires only some level of causation greater than coincidence). However, the courts in Florida have consistently emphasized that although the term “arising out of” is broad, the auto cannot be the mere situs of the injury and the injury cannot simply occur incidentally to the use of the auto. Thus, if it can be said that the injuries would not have occurred but for the ownership, maintenance, or use of an auto, then the exclusion applies.

DOES THE AUTO EXCLUSION PRECLUDE COVERAGE FOR CLAIMS ALLEGING NEGLIGENT HIRING, SUPERVISION, AND/OR TRAINING?
Yes. A general liability policy containing an exclusion for bodily injury “arising out of” the ownership, maintenance, or use of an auto does not provide coverage for a negligent hiring, supervision, and training claim when the insured’s employee causes an auto accident that results in injuries. Choxom v. Bankers Ins. Co., 877 So.2d 947 (Fla. 4th DCA 2004); American Sur. & Cas. Co. v. Lake Jackson Pizza, Inc., 788 So.2d 1096 (Fla. 1st DCA 2001).

DOES THE AUTO EXCLUSION PRECLUDE COVERAGE FOR CLAIMS ALLEGING A FAILURE TO WARN OF THE DANGER CREATED BY THE PRESENCE OF A VEHICLE?
Yes. The auto exclusion applied to a claim arising out of a car passenger’s death as a result of a collision with a parked van, even though the theory of liability was the insured’s negligent failure to place traffic cones to warn of the presence of the van. The court concluded that the collision arose from the van’s use or operation, and the failure to warn of the danger created by the van’s presence was inseparable from the use of the van itself. Underwriters at Lloyd’s of London v. McCaul, 949 So.2d 1137 (Fla. 3d DCA 2007).

DOES THE AUTO EXCLUSION PRECLUDE COVERAGE FOR CLAIMS ALLEGING THAT A VEHICLE OBSTRUCTED AN INTERSECTION?
Yes. The auto exclusion precluded coverage for injuries suffered when a plaintiff was involved in a collision due to a negligently parked vehicle that created an obstruction at an intersection. Allstate Ins. Co. v. Safer, 317 F.Supp.2d 1345 (M.D. Fla. 2004).

DOES THE AUTO EXCLUSION PRECLUDE COVERAGE FOR A SINGLE-CAR ACCIDENT CAUSED BY A NEGLIGENTLY MAINTAINED ROADWAY?
Yes. Despite the allegation that the roadway was negligently maintained and caused the single-car accident, the accident was nonetheless connected to the use of the vehicle in that the injuries would not have occurred but for the use of the vehicle. Ohio Cas. Ins. Co. v. Continental Cas. Co., 279 F.Supp.2d 1281 (S.D. Fla. 2003).

CONCLUSION
As can be seen from the examples set forth above, application of the auto exclusion is not determined by the plaintiff’s theory of liability. Instead, the auto exclusion focuses solely on the cause of the injuries. Thus, it is important to determine whether the injuries complained of would not have occurred but for the ownership, maintenance, or use of an auto. If the answer is that the injuries would not have occurred, then the auto exclusion may apply.

[BACK]