General Ins. Co. of America v. Camden Const. Co.

• Decision Date: 10 February 1967
• Docket Number: No. 3,No. 42548,42548,3
• Citation: 115 Ga.App. 189,154 S.E.2d 26
• Parties: GENERAL INSURANCE COMPANY OF AMERICA v. CAMDEN CONSTRUCTION COMPANY et al
• Court: Georgia Court of Appeals

Page 26

154 S.E.2d 26

115 Ga.App. 189

GENERAL INSURANCE COMPANY OF AMERICA v. CAMDEN CONSTRUCTION COMPANY et al.

No. 42548.

Court of Appeals of Georgia, Division No. 3.

Feb. 10, 1967.

Syllabus by the Court

Under the facts of this case, during the unloading operations the destroyed trailer was under the control of the insured within the meaning of the exclusion clause of the policy.

This is an action for declaratory judgment brought to determine General Insurance Company of America's (hereinafter referred to as General or insurer) rights and obligations under a policy which it had issued to Camden to Construction Company (hereinafter referred to as Camden or insured.) The policy provided that it does not apply 'to injury or destruction of property owned by, rented to, occupied or used by or in the care, custody or control of the insured or property as to which the insured for any purpose is exercising physical control.' (Emphasis supplied)

The action arose out of the following facts. Camden purchased a load of asphalt (f.o.b. Savannah) delivered to near Young Harris in a tractor-trailer or tanker owned by Coastal Tank Lines but under lease to Associated Petroleum Carriers. At the site, Camden's employees attached an asphalt heater unit (which heats asphalt to liquid and enables it to be unloaded) to the tanker. The driver of the tanker, after parking, went to sleep in the cab. During the unloading operations, the heater caught on fire, then the trailer and both the heater and trailer were destroyed. Upon Coastal's filing suit against Camden who thereupon called on General to defend, General brought this action for declaratory judgment.

Both parties filed their written motions for summary judgment and after a hearing the trial judge entered an order denying General's motion and granting Camden's motion. Appeal from that judgment was taken to this court by Camden.

The sole question is whether under the facts of this case the above quoted exclusion is applicable. The evidence as to who had custody and control of the tanker during the unloading process was as follows.

The President of Camden by deposition testified that Camden's employees directed the place of unloading, attached the booster to the tanker where it remained until the asphalt was unloaded; that, while if necessary the truck driver moved the truck, so long as the booster was attached to the trailer the driver had no duties regarding it; that it was the duty of the booster operator (Camden's employee) to make the hook-up of the booster and tanker, unload the tanker, and then disconnect. By affidavit, Camden's president stated that Camden was 'allowed to connect two hoses to the tanker for the sole purpose of heating the asphalt and removing it into Camden's own units as explained in my depositions taken on April 5, 1966. Unless this constitutes such, the tanker was not owned by, rented to, occupied or used by or in the care, custody or control of Camden Construction Company, and Camden Construction Company was not exercising physical control over the tanker. On a prior occasion, we had wished the tanker moved to another site and the driver would not do so until he had received instructions to that effect from his employer, Associated Petroleum Carriers, Inc.'

The driver of the truck, an employee of Coastal Tank Lines, Inc., testified that Camden's employees told him where they wanted the truck parked, where they wanted it unloaded; that he was under their direction after he got on the job site; that from the time he parked the tractor-trailer until the unloading operations were over he had no duties in regard to the operation of the truck unless Camden's employees asked him to move the truck 'further up the job or something like that and I'd do it.' The driver reiterated that he was the only one with authority to move or drive the truck; that he was not working for Camden; that he had exclusive control over the tractor-trailer which control was not surrendered to Camden; that only he, as the driver, had the right to move the truck. The driver testified that he drove the unit and parked it right where Camden told him to; that he didn't move it until they told him to; that he moved it when they told him and wherever they wanted it; that he was under Camden's direction until the...