Farlow v. Vigilant Ins. Co.

• Decision Date: 22 February 1983
• Docket Number: No. 64849,64849
• Citation: 302 S.E.2d 578,165 Ga.App. 696
• Parties: FARLOW et al. v. VIGILANT INSURANCE COMPANY et al.
• Court: Georgia Court of Appeals

Page 578

302 S.E.2d 578

165 Ga.App. 696

FARLOW et al. v. VIGILANT INSURANCE COMPANY et al.

No. 64849.

Court of Appeals of Georgia.

Feb. 22, 1983.

Rehearing Denied March 9, 1983.

Reconsideration Denied May 11, 1983.

Frank J. Klosik, Jr., Suzanne S. Barksdale, Atlanta, for appellants.

Martin M. Pollock, Atlanta, Roger Mills, Decatur, Palmer H. Ansley, Atlanta, for appellees.

William L. Spearman and James G. Jackson, Atlanta, amicus curiae. SOGNIER, Judge.

Floyd E. Farlow, on behalf of himself and his minor son, filed the instant action against his insurers, Federal Insurance Company (Federal) and Vigilant Insurance Company (Vigilant), asserting one count for damages for breach of contract and a second count seeking declaratory judgment. Federal and Vigilant had denied coverage and refused to defend Farlow and his son in a personal injury action brought by Larry and Susan Sarner on behalf of their minor child who was struck by a 1979 Yamaha GT 80 owned by Farlow and operated by Farlow's son. The insurers, in their answer in the nature of a counterclaim (see OCGA § 9-11-8(c) (formerly Code Ann. § 81A-108(c)); Roberts v. Farmer, 127 Ga.App. 237, 241, 193 S.E.2d 216 (1972)), requested adjudication by declaratory judgment of the coverage issues. Because an insured is not entitled to a declaration of rights in the instant case, see Residential Developments v. Merchants Indem. Co., 122 Ga.App. 503, 177 S.E.2d 715 (1970), aff'd 227 Ga. 332, 180 S.E.2d 729 (1971), we address only the Farlows' contract count and the insurers' request for declaratory judgment.

The trial court denied the Farlows' motion for summary judgment and granted summary judgment in favor of Federal and Vigilant, ordering that the insurers had neither a duty to defend nor any liability to the Farlows for the Sarner claims. The Farlows appeal, contending that coverage and the obligation to defend the lawsuit is afforded by both the Federal and Vigilant policies. The insurers-appellees take the position that the Yamaha GT 80 was subject to certain exclusions in their respective policies.

1. We turn first to appellants' contentions concerning Federal. The Federal "professional protector plan" does not apply to "bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of: a. any automobile ...." The policy defines "automobile" as "a land motor vehicle, trailer or semitrailer designed for travel on public roads ... but not including mobile equipment." Appellants contend that the Yamaha GT 80 is not an "automobile" but is "mobile equipment," relying on that portion of the policy definition that describes mobile equipment as: "a land vehicle ... whether or not self-propelled: ... 3. designed for use principally off public roads ...." (Emphasis supplied.)

As described by the manufacturer, the GT 80 is a "dual-purpose mini" with special features for trail use but also "street-legal instrumentation." The certificate of origin provides: "THIS VEHICLE IS DESIGNED AND MANUFACTURED FOR USE ON PUBLIC HIGHWAYS AND COMPLIES WITH ALL STATE AND FEDERAL LAWS." Its street capability was demonstrated by the fact that Farlow's son had operated the GT 80 in the public streets, albeit without permission, and was riding it in a public street at the time of the accident. Whether the Farlows intended the GT 80 to be used exclusively or principally off the public roads is not relevant to the purpose of its design. Cotton States Mut. Ins. Co. v. Statiras, 157 Ga.App. 169, 172, 276 S.E.2d 853 (1981). As the undisputed evidence establishes that the Yamaha GT 80 was not designed principally for off road use, but was instead designed for use either on or off the public roads, it is not "mobile equipment" as defined in the policy. Compare Southern Guaranty Ins. Co. v. Duncan, 131 Ga.App. 761, 763(1), 206 S.E.2d 672 (1974). Although in ordinary usage, the GT 80 is not an automobile, it fits squarely within the policy definition of "automobile," as a land motor vehicle "designed for travel on public roads ...." See Lang v. Gen. Ins. Co. of America, 268 Minn. 36, 127 N.W.2d 541, 545 (Minn.1964); 7 Blashfield, Automobile Law & Practice 557 fn. 25, § 314.1. Appellants' reliance on Cotton States, supra, is misplaced, as that case is clearly distinguishable on its facts.

There being no material issue of fact as to the principal purpose for which the vehicle was designed, Federal was entitled to judgment as a matter of law and the trial court did not err in granting summary judgment in favor of Federal or in denying appellants' motion for summary judgment as to Federal. See Bowen v. Ga. Farm etc. Ins. Co., 162 Ga.App. 707, 709(2), 293 S.E.2d 8 (1982).

2. We turn next to appellants' contentions concerning the Vigilant personal excess liability policy. The policy affords no personal liability coverage for "ownership, maintenance or use ... of any motorcycle except to the extent that insurance therefor is provided ..." by the underlying policy, which is in this case, the Federal policy discussed...