Georgia Farm Bureau Mut. Ins. Co. v. Greene

• Decision Date: 05 March 1985
• Docket Number: No. 69465,69465
• Citation: 174 Ga.App. 120,329 S.E.2d 204
• Parties: , 24 Ed. Law Rep. 1051 GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. GREENE et al.
• Court: Georgia Court of Appeals

Page 204

329 S.E.2d 204

174 Ga.App. 120, 24 Ed. Law Rep. 1051

GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. GREENE et al.

No. 69465.

Court of Appeals of Georgia.

March 5, 1985.

Rehearing Denied March 22, 1985.

Terry A. Dillard, Bryant H. Bower, Jr., Waycross, for appellant.

M. Theodore Solomon, II, Alma, John R. Thigpen, Sr., Blackshear, Carroll Russell, Blackshear, J. Thomas Whelchel, Moultrie, John E. Bumgartner, Atlanta, for appellees.

BEASLEY, Judge.

The plaintiff insurer Georgia Farm Bureau Mutual Insurance Company (Georgia Farm) appeals from the adverse grant of summary judgment in its action for declaratory judgment. This case involves the construction of the liability portion of an automobile insurance policy.

The principal facts are basically without dispute. Georgia Farm issued a policy providing fleet coverage to vehicles, principally school buses, owned and operated by the Pierce County School District (Pierce County). Under the provisions relating to liability coverage the policy set forth: "To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damage because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile."

On May 11, 1983, nine-year-old Marsha Regina Greene (Marsha) was a passenger on a Pierce County school bus which was returning her home in the afternoon. The bus was being driven by a new substitute driver who had not previously driven that route. The bus proceeded on a dirt road which dead-ended onto a paved road. Marsha's home was on the opposite side of the paved road almost directly at the point where the dirt road intersected with the paved road. There was testimony that the bus normally crossed the paved road and let Marsha (and other children who got off at that stop) off in front of her yard so that she did not have to cross the paved highway. On this day, the new driver stopped on the dirt road at the intersection.

The lights on the school bus were flashing, and the driver testified she looked both ways up and down the paved highway before opening the door and permitting the children to exit. Marsha was the first to get out on the dirt portion and began crossing the highway. The bus driver and the children in the bus saw a truck approaching from the left. Various conflicting warnings and instructions were shouted or screamed at Marsha who had just passed the middle of the road. Hearing the shouts, she turned and started to come back when she was struck at approximately the middle of the road. Marsha received numerous injuries for which her mother brought an action against the owner of the truck, Cato Timber Co. (Cato), the driver of the truck, Marvin Soles, the driver of the school bus, Elaine Lee, Pierce County, and its insurer Georgia Farm. Georgia Farm then brought an action for declaratory judgment setting out that it was not liable under the terms of its policy with Pierce County. Named as defendants were the other parties to the damage suit.

The defendants answered, denying the material averments of the complaint, and, after discovery, Marsha and then Cato and Soles in combination filed their motions for summary judgment. The trial judge granted the two motions and denied plaintiff's claim for relief. Held:

OCGA § 33-24-51 authorizes limited waiver of governmental immunity by a county or other political subdivision, which, in its discretion, secures liability insurance coverage for bodily injury, death or property damage arising "by reason of ownership, maintenance, operation or use of any motor vehicle" by such political subdivision. The liability is limited to the amount of coverage obtained.

The question for our determination is whether the minor child's injuries arose by reason of the "ownership, maintenance, or use" of the school bus within the purview of the statutory language and that of the insurance policy.

First, it should be recognized that cases construing the terminology "operation, maintenance and use," especially "use," of a motor vehicle in an insurance policy are appropriate authority for those cases which also involve such terminology with reference to waiver of governmental immunity. See Mitchell v. City of St. Marys, 155 Ga.App. 642, 644-5, 271 S.E.2d 895 (1980).

This court has adopted a liberal definition of the word "use." In Hartford Accident etc. Co. v. Booker, 140 Ga.App. 3, 230 S.E.2d 70 (1976), plaintiff, a sanitation driver, had parked his garbage truck close to the curb, got out, took a large garbage collection container with him, walked about 30 feet and was struck by a vehicle. This court quoted from Federated Mut. Implement etc. Ins. Co. v. Gupton, 241 F.Supp. 509, 511 (E.D.S.C.1965): "Exact definition of the term 'use' is elusive, and is not capable of a definition which will leave everyone 'comfortable.' Whether or not an injury arose from the 'use' of a motor vehicle within the contemplation of a liability policy or statute depends upon the factual context of each case. In this setting the term does not imply 'remoteness,' but does extend beyond actual physical contact. And it would seem to extend at least to the point, beyond physical contact, where control over the instrumentality is easily or reasonably at hand, and particularly when it is still being 'utilized.' " In holding that the driver was involved in the "use" of the truck at the time of his injury, the court pointed out that it was clear the vehicle was to be used for collection of refuse or garbage and "[c]ommon sense tells us that the parties certainly contemplated that the garbage truck would be loaded and unloaded and that the garbage to be loaded on said truck would be hauled to the truck by a garbage collection container and that, in many instances, it would be necessary for the driver to walk down the side of the road near his truck in order to collect the garbage." Hartford Accident etc. Co. v. Booker, 140 Ga.App. 3, 7, 230 S.E.2d 70, supra.

Other examples may be cited. In Southeastern etc. Ins. Co. v. Stevens, 142 Ga.App. 562, 564, 236 S.E.2d 550 (1977), a gun accidentally discharged in a truck. "The question to be answered is whether the injury 'originated from,' 'had its origin in,' 'grew out of,' or 'flowed from' the use of the vehicle." Similar expressions are found in Georgia Farm etc. Ins. Co. v. Nelson, 153 Ga.App. 623, 266 S.E.2d 299 (1980)--attaching a trailer to a tractor-trailor was a "contemplated use of the tractor"; Jones v. Transamerica Ins. Co., 154 Ga.App. 408, 268 S.E.2d 444 (1980)--injury "intrinsically" related to the vehicle; Payne v. Southern Guaranty Ins. Co., 159 Ga.App. 67, 68, 282 S.E.2d 711 (1981)--"[a]lmost any causal connection or relationship will do;" Turner Transp. Co. v. Warner, 168 Ga.App. 358,...