Empire Fire & Marine Ins. Co. v. Daniels, No. A06A0337.

• Court: United States Court of Appeals (Georgia)
• Citation: 279 Ga. App. 602,631 S.E.2d 799
• Docket Number: No. A06A0337.
• Parties: EMPIRE FIRE & MARINE INSURANCE COMPANY v. DANIELS et al.
• Decision Date: 31 May 2006

279 Ga. App. 602 631 S.E.2d 799 EMPIRE FIRE & MARINE INSURANCE COMPANY
v.
DANIELS et al. No. A06A0337. Court of Appeals of Georgia. May 31, 2006.

Page 800

Marvin W. McGahee, Brennan & Wasden, Savannah, for appellant.

Raymond S. Gordon, Jr., W. Jefferson Hires, Gordon & Hires, Jesup, for appellees.

ANDREWS, Presiding Judge.

Empire Fire & Marine Insurance Company appeals from the trial court's order granting summary judgment to Joseph and Jacquelyn Daniels on Empire's Complaint for Declaratory Judgment. Because the trial court correctly held that Shana Carver, the driver of the car involved in the accident in which Joey Allen Daniels was killed and Joseph Patrick Daniels was injured, was an insured under the Empire policy at issue, we affirm.

This is the second appearance of this case in our Court. See Carver v. Empire Fire etc., Ins. Co., 270 Ga.App. 100, 605 S.E.2d 842 (2004).¹ The case arose after a single car accident in which Shana Carver, the driver of the car, and Joey Allen Daniels were killed and Haley Mosley, Shana Carver's daughter, and Joseph Patrick Daniels, both minors were injured. Id. at 100-101, 605 S.E.2d 842.

The car Shana Carver was driving at the time of the accident was a rental car belonging to Carver Services, Inc., a company owned by her husband, James Carver. The company was in the business of selling and renting cars. The company was insured under both a primary and excess commercial lines insurance policy from Empire.

Initially, the trial court held that the primary Empire policy provided coverage for the Daniels's claims but made no specific ruling as to the excess policy. On appeal, this Court remanded to the trial court for consideration of coverage under the excess policy. Carver, supra at 105, 605 S.E.2d 842. On remand, the trial court found that the excess policy also provided coverage for the Daniels's claims and this appeal followed.

Summary judgment is appropriate when the court, viewing all the facts and evidence and reasonable inferences from those facts in [279 Ga. App. 603] a light most favorable to the nonmovant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). On appeal from a grant of a motion of summary judgment, we review the evidence de novo to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law. Burdick v. Govt. Employees Ins. Co., 277 Ga.App. 391, 626 S.E.2d 587 (2006).

Here, the record shows that the Empire policy provided coverage for an insured who was in the business of renting vehicles, but did not provide liability coverage to the customers who rented the vehicles. Accordingly, the issue before us is whether Shana Carver was an insured under the policy or was a rentee under the policy.

The policy defines an "insured" as:

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a. You for any covered "auto";

b. Your employee, but only while acting within the scope of his or her duties; and

c. Anyone else while using with your permission a covered "auto" you own . . . .

Excluded from coverage are the rentee and any other person using a covered auto with the permission of the rentee. "Rentee" is defined in the policy as "the person or organization" named in the "rental agreement" who rents or leases an "auto" from the Named "Insured." "Rental Agreement" is defined as "the written rental contract" by which the "rentee" rents or leases the "rental vehicle" from the named "Insured."

James Carver was deposed twice. His first deposition, taken in July 2002, varies considerably from the deposition taken in May 2003. In his first deposition, Carver was asked whether a written rental agreement was always completed each time that Shana Carver rented a vehicle from the business. Carver responded, "Yes, I believe, I'm pretty sure we did." Carver said that he did not have the rental agreement. He said that his office was broken into after the accident and he later realized that those files were missing.

In his second deposition, Carver stated that the only time a rental agreement was filled out for either him, his wife, or another family member was the one filled out for Shana Carver just before the accident. Although he did not have a copy of this agreement at his first deposition,...