Opinion
Nos. 81-2455, 82-16.
October 20, 1982.
Appeal from the Circuit Court, Lee County, Thomas S. Reese, J.
Carolyn Pickard and John A. Murray of Thornton, David Murray, Miami, for appellant.
Edward R. Curtis and Richard S. Womble of Fertig Curtis, P.A., Fort Lauderdale, for appellee.
These consolidated cases represent the second appeal arising from the January, 1977, crash of Herman Shaw's Cessna 411 aircraft. In Fort Myers Airways, Inc. v. American States Insurance Co., 411 So.2d 883 (Fla. 2d DCA 1982), we held that Shaw's flight instructor, Donald Varboncoeur, was an insured under the policy written by American States for Shaw. We based our holding on the premise that "a flight instructor, giving instructions to the owner and insured of an airplane, is the agent or employee of the owner under an insurance policy which provides coverage to an agent or employee of the insured." 411 So.2d at 884-85. Now, contending that it is also an agent or employee of the deceased, Fort Myers Airways, Inc. claims it should be treated as an insured under the American States' policy. Prior to our decision in Fort Myers Airways, the trial court found that Fort Myers Airways is not an insured under this policy and entered summary judgment in favor of American States. This appeal followed.
In Fort Myers Airways, we concluded that Varboncoeur was an insured under the policy because Shaw's direct control over Varboncoeur while they were airborne was sufficient to make Varboncoeur an agent or employee of Shaw for purposes of the insurance contract. That is not the case here, because the type and degree of control is not the same. Shaw had a contractual, business relationship with Fort Myers Airways that he could terminate at any time. But, he did not have the same degree of immediate control and direction over Fort Myers Airways that he had over Donald Varboncoeur. Therefore, for purposes of the insurance coverage provided by American States to Shaw and his agents or employees, Fort Myers Airways was not Shaw's agent and entry of summary judgment in favor of American States was proper.
AFFIRMED.
BOARDMAN, A.C.J., and GRIMES, J., concur.