American Protection Ins. Co. v. Parker

• Decision Date: 04 September 1979
• Docket Number: No. 58032,58032
• Citation: 258 S.E.2d 540,150 Ga.App. 732
• Parties: AMERICAN PROTECTION INSURANCE COMPANY v. PARKER et al.
• Court: Georgia Court of Appeals

Page 540

258 S.E.2d 540

150 Ga.App. 732

AMERICAN PROTECTION INSURANCE COMPANY v. PARKER et al.

No. 58032.

Court of Appeals of Georgia.

Argued May 30, 1979.

Decided June 28, 1979.

Rehearing Denied July 13, 1979.

Certiorari Denied Sept. 4, 1979.

Swift, Currie, McGhee & Hiers, W. Wray Eckl, Atlanta, for appellant.

Teddy R. Price, Atlanta, for appellees.

DEEN, Chief Judge.

1. The purpose of the Uninsured Motorist Statute is to place insureds in the same position they would be in in relation to coverage for bodily injuries if the tortfeasors causing the injuries had obtained at least the minimum prescribed liability insurance. State Farm Mut. Auto. Ins. Co. v. Murphy, 226 Ga. 710, 714, 177 S.E.2d 257, 260 (1970); McCrory v. Hall, 477 F.2d 87(1) (5th Cir. 1973).

2. Insurance policies, where contradictory or ambiguous, will be construed most liberally in favor of the insured. Hilley v. Teachers Ins. & Annuity Assn., 145 Ga.App. 710, 244 S.E.2d 645 (1978).

3. Where the insuring agreement of the Uninsured Motorists portion of an automobile liability insurance policy provides that the company will pay the insured's damages recoverable from the "operator of an uninsured automobile because of bodily injury . . . caused by accident and arising out of the . . . use of such uninsured automobile" the following rules apply:

(a) In such a clause the word "accident" does not mean that under all circumstances the occurrence must be pure accident, but the "Fact that injury is caused by an intentional act does not preclude it from being caused by 'accident' . . . if in that act something unforeseen, unusual and unexpected occurs which produces the result." State Farm Mut. Auto. Ins. Co. v. Treas, 254 Md. 615, 255 A.2d 296(2) (1969). We support the view, as exemplified by Nationwide Mut. Ins. Co. v. Mac Ray Roberts, 261 N.C. 285, 134 S.E.2d 654 (1964) that whether or not such an occurrence is accidental must be decided by viewing it through the eyes of the victim, and if as to the latter it is unforeseen and not caused by his own misconduct, it is, although an intentional assault, accidental as to him. Cf. Nelson v. American Nat. Ins. Co., 67 Ga.App. 775, 21 S.E.2d 658 (1942); Gaynor v. Travelers Ins. Co., 12 Ga.App. 601(4), 77 S.E. 1072 (1912).

(b) In such a clause the term "uninsured automobile" means one as to which there is no insurance applicable under the facts surrounding the occurrence on which the claim is made. See in this regard 26 A.L.R.3d Anno., pp. 883, 887, § 6. Georgia has held that where the named insured occupying the insured automobile is injured by the operator (a person driving with the permission of the named insured) no recovery may be had. Barras v. State Farm etc., Ins. Co., 118 Ga.App. 348, 163 S.E.2d 759 (1968); Lauer v. Bodner, 137 Ga.App. 851, 225 S.E.2d 69 (1976). This is because the statute (Code § 56-407.1(b)) defines an insured in part as "any person who uses, with the consent, express or implied, of the named insured, the motor vehicle to which the policy applies." The equivalent language in this policy, following four specifications of "insured automobile" ((a) the automobile described in the policy, (b) a replacement vehicle, (c) a temporary substitute automobile and (d) a nonowned automobile while operated by the named insured) has the following language: "The term 'insured automobile' includes a trailer while being used with an automobile described in (a), (b), (c), or (d) above, but shall not include . . . any automobile while being used without the permission of the owner." Thus, nonpermissive use renders the automobile not an insured automobile for purposes specified in the general insuring agreement, from which it follows that under such a state of facts the automobile is uninsured for UM purposes. That the "no permission" exception quoted above applies to all categories of vehicles described as "insured automobile" is the only possible method of reading this definition since otherwise there would be no exception to the broad statement in (a) that "insured automobile" means the automobile described in the policy, which would arguably extend insurance coverage even if the vehicle had been converted or stolen, a meaning clearly not intended.

Thus, an automobile which at the time the injury is inflicted is being used and operated by one not the owner and driven without the permission of the owner is excluded from the definition of "insured automobile." This is confusing because the general definition of an insured automobile is one listed in the policy and for which a premium charge has been paid. We note the ambiguity, which will be considered later.

(c) An UNINSURED AUTOMOBILE is defined as one with respect to the ownership Or use of which there is no bodily injury insurance Applicable at the time of the accident. By this definition an automobile so used by an uninsured operator without permission of an insured is under the terms of the general insuring agreement an uninsured automobile so that, when operated by such uninsured motorist without consent, it is uninsured within the meaning of the covering clause. " 'The (uninsured motorists) coverage applies not only to the owner of an insured automobile but to his spouse and relatives of either if they live in his household. It covers them while riding in the insured car, or in any other automobile or While pedestrians if the injury is caused by an uninsured motorist.' Mitchell on Insurance (1965 Ed.) § 120-102, p. 703." Gulf American Fire & Cas. Co. v. McNeal, 115 Ga.App. 286(3), 290, 154 S.E. 411, 417 (1967). (Emphasis supplied.)

(d) Additionally, the policy, Part IV, Coverage J, which contains the UM insurance, has the following exclusion: "This policy does not apply under Part IV(a) to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by the named insured or a relative, or through being struck by such automobile." We paraphrase the exclusion for...