               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


STATE FARM MUTUAL AUTOMOBILE      )
INSURANCE COMPANY,                )
                                  )
          Appellant,              )
                                  )
v.                                )                   Case No. 2D15-3487
                                  )
PATRICK BAILEY; MICHAEL A.        )
FINNEGAN; and DONALD A. FINNEGAN, )
                                  )
          Appellees.              )
                                  )

Opinion filed November 9, 2016.

Appeal from the Circuit Court for Pinellas
County; Pamela A.M. Campbell, Judge.

Mark D. Tinker and Charles W. Hall of
Banker Lopez Gassler P.A., St. Petersburg,
for Appellant.

Roy L. Glass of The Law Offices of Roy L.
Glass, P.A., St. Petersburg, for Appellee
Patrick Bailey.

No appearance for remaining Appellees.


BLACK, Judge.

             State Farm Mutual Automobile Insurance Company appeals from the final

judgment entered following the trial court's grant of final summary declaratory judgment
for uninsured motorist coverage in favor of Patrick Bailey. State Farm asserts that the

trial court improperly construed the terms of the uninsured motorist (UM) provisions of

the insurance policy when it determined that Mr. Bailey was entitled to UM coverage for

injuries caused when Mr. Bailey was struck by an uninsured motorist. We agree and

reverse.

              On October 3, 2012, Mr. Bailey, who was acting in the course and scope

of his employment with Claim Jumper, Inc., was struck and injured by an uninsured

motorist. Prior to the accident, Mr. Bailey was driving a crane truck—a flatbed vehicle

with a crane attached for the purpose of lifting heavy items. However, at the time of the

accident, Mr. Bailey was not operating the truck or the crane; he was standing between

ten and twenty feet from the truck, observing the operation of the crane by a coworker.

The truck was running in order for the crane to be operated, but the truck was not

moving. Mr. Bailey had been monitoring the work being done for about thirty minutes

when he was struck by an uninsured vehicle after the driver of the vehicle lost control of

it.

              Mr. Bailey sued State Farm, Claim Jumper's insurer, for uninsured motor

vehicle coverage. State Farm and Mr. Bailey filed competing motions for summary

judgment. State Farm contended that pursuant to the terms of the insurance policy, Mr.

Bailey was neither a named insured nor otherwise covered because he was not

occupying the insured vehicle, as that term is defined in the policy, at the time of the

accident. Mr. Bailey argued that pursuant to the Business Named Insured Endorsement

of the policy he was an insured and, alternatively, that he was occupying the insured

vehicle for purposes of the UM section. The trial court granted Mr. Bailey's motion,




                                            -2-
finding that his constructive possession of the vehicle at the time of the accident

satisfied the occupancy requirement for UM coverage. Subsequently, the parties

consented to the entry of a final judgment in the amount of the policy limits.

              "Where the determination of the issues of a lawsuit depends on the

construction of a written instrument and the legal effect to be drawn therefrom, the

question at issue is essentially one of law only and determinable by entry of summary

judgment." Auto-Owners Ins. Co. v. Young, 978 So. 2d 850, 852 (Fla. 1st DCA 2008)

(quoting Cox v. CSX Intermodal, Inc., 732 So. 2d 1092, 1096 (Fla. 1st DCA 1999)). Our

review of an order granting summary judgment is de novo, as is our review of the trial

court's interpretation of an insurance policy to determine coverage as a matter of law.

Auto-Owners Ins. Co. v. Above All Roofing, LLC, 924 So. 2d 842, 843 (Fla. 2d DCA

2006). The legal issue before the trial court was whether the insurance policy

unambiguously provided UM coverage for Mr. Bailey's injuries based on the express

terms of the policy. "Accordingly, the issue before this [c]ourt is whether the trial court

correctly determined that [Mr. Bailey] was entitled to prevail as a matter of law." See

Young, 978 So. 2d at 852.

              The policy at issue defines "insured" as "the person, persons or

organization defined as insureds in the specific coverage." State Farm relies upon

Section III, Uninsured Motor Vehicle—Coverages U and U3, and Section III of the

Business Named Insured Endorsement, Uninsured Motor Vehicle—Coverages U and

U3 for its argument that Mr. Bailey's injuries are not covered by the policy. Section III,

Uninsured Motor Vehicle, provides, in pertinent part:

              Who Is an Insured
                   ....



                                            -3-
              Insured—means the person or persons covered by
              uninsured motor vehicle coverage. This is:

                     1. the first person named in the declarations;

                     2. his or her spouse;

                     3. their relatives; and

                     4. any other person while occupying:

                              a. your car, a temporary substitute car, a
                                 newly acquired car or a trailer attached to
                                 such car. Such vehicle has to be used
                                 within the scope of the consent of you or
                                 your spouse; or

                              b. a car not owned by you, your spouse or
                                 any relative, or a trailer attached to such a
                                 car.

                              ....

                     5. any person entitled to recover damages because
                        of bodily injury to an insured under 1 through 4
                        above.

(Underlined emphasis added.) Section III of the Business Named Insured Endorsement

provides, in relevant part:

              The provision titled Who Is an Insured is changed to read:
                    ....

              Insured means:

                     1. any person while occupying a vehicle covered
                        under the liability coverage. Such vehicle has to
                        be used by a person who is insured under the
                        liability coverage.

                        ....




                                               -4-
                      2. you or any person entitled to recover damages
                         because of bodily injury to an insured under 1
                         above.

(Underlined emphasis added.) The policy defines "occupying" as "in, on, entering or

alighting from."

               Mr. Bailey relies on Section 1, Liability Coverages, of the Business Named

Insured Endorsement for his argument that his injuries are covered by the policy. He

contends that he is an insured under the terms of Section 1. The endorsement explains

that "[i]n consideration of the premium charged, it is agreed that your policy is changed

as follows:"

               Section 1—Liability Coverages

                      ....

               (2) The provision titled Who Is An Insured is changed to read:

                   Who Is An Insured
                   Insured means:

                      1. you;

                      2. any person while using your car, a newly acquired
                         car or a temporary substitute car, if its use is within
                         the scope of your consent; and

                      3. any other person or organization liable for the use
                         of your car, a newly acquired car or a temporary
                         substitute car by one of the above insureds.

               Mr. Bailey alternatively argues that he is entitled to coverage because

Section III of the endorsement requires that an insured be both using an insured




                                             -5-
vehicle, as defined by the liability coverage provision, and occupying an insured

vehicle.1

              There is no question that Claim Jumper is the named insured of the policy,

not Mr. Bailey. The definition of insured under the endorsement's Section 1, Liability

Coverages, is inapplicable to this case. There is no issue of Mr. Bailey's liability for

injury or property destruction, nor is there an issue of indemnity. As a result, Mr. Bailey

would only be entitled to UM coverage if he meets the "occupying" provision of Section

III, UM coverage.2

              The language of the policy is unambiguous and Mr. Bailey does not

contend otherwise. See Above All Roofing, 924 So. 2d at 847 (concluding that the

policy provision defining "occupying" as "in or upon, entering into or alighting from" was

not ambiguous). Therefore, we need not look further than this court's decision in Above

All Roofing to resolve the issue.

              In Above All Roofing, we concluded that a plaintiff who had exited the

insured vehicle and was standing across the street from the vehicle when he was struck




              1
              Both the standard Section III UM coverage and the Business Named
Insured Endorsement Section III UM coverage contain the occupying requirement; we
therefore need not address Mr. Bailey's claim that State Farm incorrectly relies upon the
language of the standard section.
              2
                As discussed in Sommerville v. Allstate Insurance Co., 65 So. 3d 558
(Fla. 2d DCA 2011), "[t]ypically, automobile insurance policies recognize two classes of
insureds. Class I insureds are named insureds and their resident relatives. Class II
insureds are lawful occupants of an insured vehicle who are not named insureds or
resident relatives of named insureds . . . ." Id. at 560 (citations omitted). Further,
"[w]hen the named insured is a corporation, it obviously can never have a bodily injury
or a UM claim as well as claims for coverage for family members. The entire risk in
such a situation arises from class II insureds." Varro v. Federated Mut. Ins. Co., 854
So. 2d 726, 728 (Fla. 2d DCA 2003).


                                            -6-
by an uninsured motorist was not covered by the policy's UM provision because the

plaintiff was not "in or upon, entering into or alighting from" the insured vehicle. 924 So.

2d at 847. That conclusion was supported by other district court decisions holding that

"occupying" is unambiguous and that plaintiffs were not covered where they "were not

at least touching or in close proximity to the insured vehicle at the time of injury." Id. at

846; see, e.g., Davis v. Fireman's Fund Ins. Co., 463 So. 2d 1191 (Fla. 2d DCA 1985);

Allstate Ins. Co. v. Thomas, 668 So. 2d 1038 (Fla. 4th DCA 1996); State Farm Mut.

Auto. Ins. Co. v. Yanes, 447 So. 2d 945 (Fla. 3d DCA 1984); Fid. & Cas. Co. of N.Y. v.

Garcia, 368 So. 2d 1313 (Fla. 3d DCA 1979); cf. Progressive Am. Ins. Co. v. Tanchuk,

616 So. 2d 489 (Fla. 4th DCA 1993); Asnip v. Hartford Accident & Indem. Co., 446 So.

2d 1121 (Fla. 3d DCA 1984). "[I]t is the relationship between the person and the

vehicle, obviously of time and in distance," that determines whether a person is "in, on,

entering or alighting from" the vehicle. Young, 978 So. 2d at 852 (quoting Tanchuk, 616

So. 2d at 490).

              Here, the undisputed facts establish that Mr. Bailey was not "in, on,

entering or alighting from" the insured truck at the time he was struck; he had exited the

truck some thirty minutes prior to being struck and was standing at least ten feet away

from the vehicle when he was hit. The separation between Mr. Bailey and the truck in

both time and distance precludes a finding that Mr. Bailey was occupying the vehicle at

the time he was struck as a matter of law.

              Accordingly, we reverse the final judgment and direct the trial court to

enter final summary judgment in favor of State Farm.

              Reversed and remanded with instructions.




                                             -7-
LaROSE and CRENSHAW, JJ., Concur.




                                    -8-
