Crosby v. Georgia Cas. & Sur. Co.

• Citation: 173 Ga.App. 644,327 S.E.2d 505
• Decision Date: 05 February 1985
• Docket Number: Nos. 69613,69779,s. 69613
• Parties: CROSBY v. GEORGIA CASUALTY & SURETY COMPANY et al. COTHERN v. GEORGIA CASUALTY & SURETY COMPANY et al.
• Court: Georgia Court of Appeals

Page 505

327 S.E.2d 505

173 Ga.App. 644

CROSBY v. GEORGIA CASUALTY & SURETY COMPANY et al.

COTHERN v. GEORGIA CASUALTY & SURETY COMPANY et al.

Nos. 69613, 69779.

Court of Appeals of Georgia.

Feb. 5, 1985.

Rehearing Denied March 5, 1985.

Leon A. Wilson II, Benjamin Smith, Jr., Waycross, for appellant in No. 69613.

Robert S. Highsmith, Baxley, for appellant in No. 69779.

David T. Whitworth, Brunswick, Terry A. Dillard, Waycross, Bryant H. Bower, Jr., Athens, James Durham, Brunswick, for appellees.

DEEN, Presiding Judge.

Wayne Crosby, a logger, was killed while attempting to secure a load of logs by means of a metal cable attached to the trailer on which the logs were loaded. The decedent had driven the loaded trailer a distance of approximately one-half mile through the woods to a road, where the trailer was to be picked up by another truck and the logs transported to their ultimate destination. The cable apparently struck a power line as Crosby was attempting to throw it across the logs, and he was electrocuted.

Appellee Georgia Casualty & Surety Co. (Georgia Casualty) is the insurer of Crosby's employer's vehicles, and appellee Auto Owners Insurance Co. (Auto Owners) is the insurer of Crosby's own vehicles. Lynell Strickland Crosby (case no. 69613) is Crosby's widow, and Betty Jean Crosby Cothern (case no. 69779) is Crosby's former wife and guardian of his two minor children. Both appellants (Cothern acting in the capacity of next friend to the minor children) filed claims against appellees under decedent's automobile insurance policy and that of his employer, the latter as primary insurer and the former as excess insurer.

Appellee Georgia Casualty filed an action for a declaratory judgment, seeking a declaration of non-liability and also a stay and injunction against appellants. Auto Owners answered, counterclaimed, and cross-claimed for declaratory relief and an injunction. Ms. Crosby and Mrs. Cothern also counterclaimed and cross-claimed against Georgia Casualty and Auto Owners. All parties filed motions for summary judgment and, after a hearing, the trial court granted the insurers' motions and denied those of appellants. Appellants filed separate appeals from the award of summary judgment to the insurers; neither appealed the denial of her own motion. The separate appeals have been consolidated for the purpose of this court's review.

Appellants enumerate as error the court's awarding summary judgment on the basis that decedent's act of attempting to secure the logs by throwing a cable across them constitutes "conduct in the course of loading" the logging trailer. Appellants contend that there is a genuine issue of material fact regarding whether decedent's act was a part of the loading process or a separate activity. Held:

The relevant provisions in the policies issued by appellees are identical and read as follows: "This coverage does not apply ... to any injury sustained by any person ... if such injury ... arises from conduct in the course of loading or unloading any motor vehicle unless the conduct occurs while such person is occupying such motor vehicle." OCGA § 33-34-2(9) provides that "[t]he term ['operation, maintenance or use of a motor vehicle'] does not include ... conduct in the course of loading and unloading the vehicle unless the conduct occurs while occupying it." OCGA § 32-6-21(a) prescribes that "(a) No vehicle shall be driven or moved on any public road unless such vehicle is constructed or loaded or covered so as to prevent any of its load from dropping, escaping or shifting in such a manner as to create a safety hazard ... (b) No person shall operate or load for operation, on any public road, any vehicle with any load unless such load and any covering thereon is securely fastened so as to prevent said covering or load from becoming loose, detached, or in any manner becoming a hazard to other users of the public road."

It is undisputed in the instant case that the decedent was not occupying the vehicle when the fatal accident occurred. The issue hotly disputed is whether the requirement that the cargo be secured prior to its being transported over public roads means that the securing is a part of the loading process or is an act subsequent to and distinct from the process of loading. Appellee Georgia Casualty filed with its motion for summary judgment the affidavit of the decedent's employer stating, inter alia, that the lashing or securing of the logs is the last step of loading; appellant Crosby had filed with her motion for summary judgment the affidavit of an experienced independent logger stating, inter alia, that the lashing or securing is a separate operation performed after the loading has been completed. Appellants bolster their contention that the securing is a separate operation by pointing out that the actual loading had been done in the woods some half-mile away from where the fatal accident occurred; they urge, therefore, that the exclusion does not apply and that they are entitled to recover under the insurance policies.

We find no Georgia cases precisely on point with that sub judice. Analogous cases, however, tend to support the position of appellees. In Hodges Appliance Co. v. U.S. Fid. & Guar. Co., 133 Ga.App. 936, 213 S.E.2d 46 (1975), the issue was whether a sofa which was removed from a truck and placed on a floor furnace, and which subsequently caught on fire, was covered by an insurance policy clause extending coverage to incidents occurring in the process of loading and unloading. This court held that, although some time passed between the sofa's removal from the truck and its bursting into flames, the occurrence was a part of the unloading process, and hence within the policy's coverage. Quoting a case from another jurisdiction, this court noted in Hodges that "[t]he precise line at which the unloading of the [vehicle] ends and a further phase of commerce such as the completion of delivery begins after unloading may ... be difficult of ascertainment..." Stammer v. Kitzmiller, 226 Wis. 348, 276 N.W. 629.

Decisions in those jurisdictions which have adopted the "complete operation" or "continuing operation" theory as regards the meaning of "loading and unloading" (e.g., Texas, Florida, Wisconsin, Oklahoma, Michigan, New York, Rhode Island, California) support the Hodges rationale. See, e.g., P.E. O'Hair & Co. v. Allstate Ins. Co., 267...