Cawthon v. Waco Fire & Cas. Ins. Co.

• Decision Date: 21 May 1987
• Docket Number: Nos. 73979,73980,s. 73979
• Citation: 183 Ga.App. 238,358 S.E.2d 615
• Parties: , 40 Ed. Law Rep. 1297 CAWTHON et al. v. WACO FIRE & CASUALTY INSURANCE COMPANY. BALDWIN COUNTY BOARD OF EDUCATION et al. v. WACO FIRE & CASUALTY INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 615

358 S.E.2d 615

183 Ga.App. 238, 40 Ed. Law Rep. 1297

CAWTHON et al. v. WACO FIRE & CASUALTY INSURANCE COMPANY.

BALDWIN COUNTY BOARD OF EDUCATION et al. v. WACO FIRE & CASUALTY INSURANCE COMPANY.

Nos. 73979, 73980.

Court of Appeals of Georgia.

May 21, 1987.

Rehearing Denied June 8, 1987.

Certiorari Denied Sept. 8, 1987.

E. Angela Emerson, Milledgeville, David N. Rainwater, Cordele, for appellants in No. 73979.

Milton F. Gardner, Jr., Milledgeville, Richard Gardner, for appellants in No. 73980.

James M. Poe, Debra L. Mixon, Atlanta, for appellee.

SOGNIER, Judge.

Julius Jerome Cawthon and Josephine Cawthon brought suit against the Baldwin County Board of Education (Board), its members both individually and in their official capacities, the Baldwin County School District and Margie Humphries, bus driver, for the wrongful death of their minor child, Robert. Waco Fire & Casualty Insurance Company, the issuer of the business automobile liability policy to the Board, filed an action seeking a declaration of its obligations under that policy in regard to the wrongful death suit. The trial court granted summary judgment in favor of Waco on its motion contending it was not obligated to provide coverage, to defend or to indemnify any defendant in the wrongful death suit. The appeals by the Cawthons and by the Board and other defendants in the wrongful death suit are consolidated in this opinion.

Robert Cawthon, age 10, was struck and killed as he was crossing a heavily-trafficked highway in order to get to his bus stop. The evidence shows that Robert was serving as look-out for the approach of the bus and that, upon espying the bus, he first returned to the building where his two sisters were waiting, informed them the bus was coming, then proceeded ahead of them to the highway whereupon he was struck by an on-coming automobile while crossing to the bus stop. The evidence conflicts whether the school bus was approaching Robert's stop at the time of the accident or was still at the previous stop. However, it is uncontroverted that the prior stop was less than one-tenth of a mile away and that the bus was clearly visible to Robert at the time of the accident.

Further controversy exists in the evidence regarding Robert's action in crossing the highway prior to the arrival of the school bus. Up until four to six weeks prior to Robert's death, the Cawthon children had always waited for the school bus to arrive before crossing the highway under the protection and supervision of the school bus and driver. The Cawthon children's behavior changed at this time due to an incident in which Eunesia, Robert's older sister, was so late that the school bus had to leave her behind. Humphries, the bus driver, stated in her deposition that she told her transportation supervisor about the incident and about Eunesia's recurring tardiness the same day she had to leave Eunesia behind, that the supervisor told her complaints had been received about the school bus delaying traffic on the highway, and that he told her to leave Eunesia if the child was not on time. Humphries stated that the following school day she told Eunesia (in a lecture apparently overheard by all the occupants of the school bus) people had complained about the school bus holding up traffic and from then on Eunesia would have to be outside waiting on the bus with the other children or she would be left. Humphries stated she did not discuss with Eunesia on which side of the highway she should be waiting or whether by "other children" she meant Robert and the younger Cawthon child or the "other children" who also boarded at that stop, all of whom waited at the bus stop itself because they did not need to cross the highway. Robert's sisters and another student who rode the school bus at that time testified by deposition that Humphries told them explicitly that if the children were not waiting at the bus stop when the school bus arrived, they would be left behind. It is uncontroverted, however, that in the four to six-week period following this incident, Humphries repeatedly arrived at the bus stop to find the Cawthon children already across the highway at the stop. Humphries testified that during this period, she did not discuss with the Cawthon children on which side of the highway they should be waiting, that she did not know how the children were crossing the highway (supervised or otherwise) and that she made no inquiry of the children in that regard.

Appellants contend the trial court erred by granting summary judgment to appellee because questions of fact exist whether liability for Robert Cawthon's death comes within the provision of the policy issued by appellee providing coverage for "bodily injury caused by an accident and resulting from the ownership, maintenance or use of a covered auto." In Georgia Farm Bureau Mut. Ins. Co. v. Greene, 174 Ga.App. 120, 329 S.E.2d 204 (1985), in which a child was injured crossing an adjacent street moments after alighting from the school bus, we held "it can be reasoned that 'use' of the vehicle in question, a school bus, includes transportation of children to and from such school and the unloading of the school bus and that such unloading encompasses not only depositing them outside the bus but assuring that they reach a place of safety which, as in this case, may include crossing a street." Id. at 124, 329 S.E.2d...