Anderson v. Southeastern Fidelity Ins. Co.

• Decision Date: 10 May 1983
• Docket Number: 65863,Nos. 65862,s. 65862
• Citation: 305 S.E.2d 383,166 Ga.App. 750
• Parties: ANDERSON et al. v. SOUTHEASTERN FIDELITY INSURANCE COMPANY. PILLSBURY et al. v. SOUTHEASTERN FIDELITY INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 383

305 S.E.2d 383

166 Ga.App. 750

ANDERSON et al. v. SOUTHEASTERN FIDELITY INSURANCE COMPANY.

PILLSBURY et al. v. SOUTHEASTERN FIDELITY INSURANCE COMPANY.

Nos. 65862, 65863.

Court of Appeals of Georgia.

May 10, 1983.

Rehearing Denied

May 26, 1983.

Certiorari Granted July 11, 1983.

Thomas J. Mahoney, Jr., Clark Smith, Joseph P. Brennan, Savannah, for appellants in No. 65862.

Dwight T. Feemster, Savannah, for appellants in No. 65863.

Dana F. Braun, Savannah, for appellee.

BIRDSONG, Judge.

Insurance Coverage--Contract Construction. On May 22, 1981, John Williams was driving a car owned by Neil Baker. Rufus Hamilton was a passenger in the Williams' car. Robert Pillsbury was driving a car registered in his mother's name, Edna Beasley, but for all intents and purposes, belonging to and wholly operated by Pillsbury. Williams improvidently encountered Pillsbury at an intersection in Savannah. Either Williams or his passenger Hamilton challenged Pillsbury to a "drag race" and Pillsbury accepted. There was evidence that Pillsbury was "revving" his motor behind the Williams car before he was challenged to the race.

The two cars proceeded to a long straight stretch of road proceeding in a west to east direction with two lanes going east and a third lane going west. The two cars entered the straight stretch of road on line and at the word "go," both cars rapidly accelerated. Some distance down the road, a railroad crossed the road causing a rough crossing. According to Pillsbury, he was aware of the rough crossing and let up on his accelerator before reaching the crossing. While Pillsbury had initially taken the lead, the Williams car had begun to edge ahead by the time the railroad was reached. As Williams passed over the railroad, he seemed to lose control of the car, and it went onto the right shoulder just as the road began a turn to the left. Williams apparently tried to regain control and pulled the car to the left. The car went out of control, skidded across the two eastbound lanes into the westbound lane and collided with a third car going west operated by Michael Anderson and owned by Michael and Barbara Anderson. Kevin Osborne was a passenger in the Anderson car. After Williams collided with the Anderson car, he skidded back into the center eastern lane where Pillsbury, while attempting to stop his vehicle, collided with the Williams' auto. As a result of this three-car collision, Williams was killed, Rufus Hamilton, Michael Anderson, Kevin Osborne were injured, the Baker and Anderson cars were "totalled," and the Beasley car suffered property damage.

Pillsbury was insured for auto coverage by Southeastern Fidelity, providing the required coverage. A part of that policy listed a number of exceptions (19) to the coverage provided. One exception limited and excepted any coverage when the covered vehicle or operator was engaged in activities involving a rented or leased vehicle, a public livery conveyance, or "while used or operated in any racing event, speed contest or exhibition." (Emphasis supplied.) Inasmuch as Pillsbury admitted that the accident occurred during or at the end of a "drag race," Southeastern Fidelity sought a declaratory judgment naming all persons potentially interested in Pillsbury's coverage as defendants, seeking to ascertain if it was required to furnish Pillsbury or his mother coverage or a legal defense in the event Pillsbury or Beasley were sued as a result of the accident. After obtaining depositions of all witnesses, Southeastern Fidelity moved for summary judgment. The trial court construed the contract as providing no coverage for a racing event and granted Southeastern Fidelity summary judgment. The Andersons, Osborne, Pillsbury, and Mrs. Beasley all bring this appeal complaining of the grant of summary judgment, urging that the court erroneously construed the exclusion and furthermore, that at the time of Williams' collision with the Anderson vehicle, the race was over and the exclusion could have no application. Held:

1. In the principle enumeration of error, all the appellants urge, in effect, that the 19 exclusions listed in the policy provide single subject exclusions. Thus, the first exclusion although incorporating three uses of a vehicle (leased or rented; public livery; racing event or speed contest), all deal with a commercial enterprise; i.e., use of the vehicle for profit. Thus, the argument continues that the use of the vehicle in a "racing event" must mean a prearranged, regulated racing event with financial gain involved. Inasmuch as the race in this case was a private, on the spur-of-the-moment affair, the exception does not apply.

Appellants assure us that there are no reported cases in this state dealing with an exclusionary clause such as the one in the present case. Our independent research likewise has uncovered no cases on point. However, several foreign state cases have dealt with the issue and can furnish us illuminating discussion.

We start with the premise that where no matter of fact is involved, the construction of a plain and definite contract, if needed, is a matter of law...