Cincinnati Ins. Co. v. Plummer

• Decision Date: 23 May 1994
• Docket Number: No. A94A0067,A94A0067
• Citation: 213 Ga.App. 265,444 S.E.2d 378
• Parties: CINCINNATI INSURANCE COMPANY v. PLUMMER et al.
• Court: Georgia Court of Appeals

Page 378

444 S.E.2d 378

213 Ga.App. 265

CINCINNATI INSURANCE COMPANY v. PLUMMER et al.

No. A94A0067.

Court of Appeals of Georgia.

May 23, 1994.

Nall, Miller, Owens, Hocutt & Howard, Robert B. Hocutt, Atlanta, for appellant.

C. Alan Mullinax, Stone Mountain, Larry L. Duttweiler, Lawrenceville, for appellees.

McMURRAY, Presiding Judge.

Plaintiff Cincinnati Insurance Company (insurer) issued an automobile liability insurance policy to Kenneth Plummer and his spouse Connie Plummer. Jessica Slusser was a passenger in the covered vehicle when the Plummers' daughter, Cindy Plummer, drove the car off the road. Slusser brought a tort action against Cindy Plummer to recover for her personal injuries. The insurer denied coverage under its liability policy for the damages sought in that underlying tort action and commenced this action for declaratory judgment to determine its rights and duties under the policy. Cross-motions for summary judgment were argued before the court. The trial court denied the insurer's motion for summary judgment and granted that of defendants Plummer and Slusser, holding that liability coverage was afforded Cindy Plummer under the insurer's policy for injuries Plummer may have caused Slusser. This direct appeal followed.

The circumstances of the automobile mishap are undisputed. On the date of the accident, Cindy Plummer was 14 years old and Jessica Slusser was 13. Neither girl was licensed to drive and neither had a learner's permit. While the Plummers were asleep, Cindy took the car keys without permission from Connie Plummer's purse. The girls then silently steered the car out of the driveway and drove about the neighborhood. The accident occurred at 5:00 a.m. when Cindy lost control and the car struck an embankment. In depositions, each girl testified that they knew they had no express permission to take the car. Once before, Cindy had taken her mother's car keys from the kitchen table and backed the car down the driveway in order to have access to a basketball net at the top of the drive. When Connie Plummer observed this, she scolded her daughter for driving without a license. Thereafter, Mrs. Plummer kept the car keys in her purse but did not take steps to hide them or keep them locked away.

Based upon these undisputed facts, the insurer moved for summary judgment, relying on an exclusion which stated: "We do not provide Liability Coverage for any person: ... (8) Using a vehicle without a reasonable belief that that person is entitled to do so." Defendants filed an opposing motion for summary judgment, contending that liability coverage was afforded under the policy because the exclusion relied on by the insurer did not apply to family members of the named insured. The separate orders of the trial court denying the insurer's motion and granting defendants' motion are enumerated as error. Held:

1. The first issue for resolution is the application of the policy language excluding liability coverage to "any person using a vehicle without a reasonable belief that that person is entitled to do so." The language of this exclusion is that of an "easy reading" policy rather than the traditional "omnibus" clause. United Svcs. Auto. Assn. v. Lail, 192 Ga.App. 487, 488(1), 385 S.E.2d 424. "The language 'any persons' refers to each of the nine exclusions listed, including the one in question. It is clear that 'any person' means just that, including the named insured." Ga. Farm Bureau Mut. Ins. Co. v. Fire, etc., Ins. Co. of Connecticut, 180 Ga.App. 777, 778, 350 S.E.2d 325. Likewise, the exclusion of "any person using a vehicle without a reasonable belief that that person is entitled to do so" applies to a family member of the named insured. Omni Ins. Co. v. Harps, 196 Ga.App. 340, 342, 396 S.E.2d 66. (Exclusion applied to spouse of named insured who held no reasonable belief that he had permission to drive his wife's car when he had no driver's license.) See also Robertson v. Lumbermen's Mut. Cas. Co., 160 Ga.App. 52, 54(2), 286 S.E.2d 305, overruled on other grounds Grange Mut. Cas. Co. v. Brinkley, 182 Ga.App. 273, 355 S.E.2d 767. Although Slusser points to the fact that the term "family member" is printed throughout the policy in bold-faced type in an attempt to find an ambiguity which should be construed strictly against the insurer as the drafter, we note that bold-faced type merely indicates a term which is expressly defined by the policy. No judicial construction of the unambiguous term "any person" is authorized. Ga. Farm Bureau Mut. Ins. Co. v. Fire, etc., Ins. Co. of Connecticut, 180 Ga.App. 777, 778, 350 S.E.2d 325, supra. Accord Nationwide Mut. Ins. Co. v. Southern Trust Ins. Co., 174 Ga.App. 513, 514(1), 330 S.E.2d 443. No public policy precludes the application of this exclusion. Cook v. Prudential Property, etc., Ins. Co., 206 Ga.App. 492, 493(2), 426 S.E.2d 222. In the case sub judice, the exclusion applying to "any person" is not rendered inapplicable simply because the tortfeasor is a family member of the named insured. "The exclusion is applicable as against 'any person' and,...