Hartford Acc. & Indem. Co. v. Booker

• Citation: 140 Ga.App. 3,230 S.E.2d 70
• Decision Date: 18 October 1976
• Docket Number: No. 1,No. 52429,52429,1
• Parties: HARTFORD ACCIDENT & INDEMNITY COMPANY v. Edward BOOKER
• Court: United States Court of Appeals (Georgia)

Page 70

230 S.E.2d 70

140 Ga.App. 3

HARTFORD ACCIDENT & INDEMNITY COMPANY v. Edward BOOKER.

No. 52429.

Court of Appeals of Georgia, Division No. 1.

Oct. 18, 1976.

Burnside, Dye, Miller & Bowen, A. Montague Miller, James B. Wall, Augusta, for appellant.

Nicholson, Fleming & Blanchard, James M. Thompson, Augusta, for appellee.

STOLZ, Judge.

The defendant insurance company appeals from a judgment on the pleadings in favor of the plaintiff, Edward Booker. The defendant issued an insurance policy containing an uninsured motorist endorsement in favor of Shorty's Sanitation Service, Inc. The policy covered the commercial vehicles used by Shorty's, whose business the policy described as 'Sanitary Pick Up' and 'Garbage Ashes or Refuse Collecting including completed operations.'

A claim under this uninsured motorist endorsement arose on August 28, 1972, when the plaintiff was employed by Shorty's Sanitation Service and was acting within the scope of his employment. The plaintiff parked the garbage truck that he was driving close to the curb of the road, got out of the truck, and obtained a large garbage collection container from the truck. He then walked to a point about thirty feet from the garbage truck, where he was struck by an uninsured vehicle. The plaintiff received judgment against the driver and owner of the uninsured vehicle in the amount of $27,500. Then this suit was initiated against the defendant with the plaintiff contending that he was covered under the uninsured motorist endorsement and seeking judgment in the amount of $10,000.

1. The uninsured motorist portion of the policy describes persons insured to include 'any other person while occupying an insured highway vehicle.' The uninsured motorist statute, Code Ann. § 56- 407.1(b) (Ga.L.1963, p. 588, as amended) describes insured persons to include 'any person who uses, with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies.' Where there is a conflict in an insurance policy and the uninsured motorist statute, the statute controls. State Farm etc., Inc. Co. v. Murphy, 226 Ga. 710, 177 S.E.2d 257; Travelers Indemnity Co. v. Williams, 119 Ga.App. 414, 167 S.E.2d 174.

2. Since use of a vehicle determines who is insured for purposes of the statute, the definition of the word 'use' becomes a central issue in this case. In Federated Mut. etc., Ins. Co. v. Gupton, 241 F.Supp. 509, 511 (E.D.S.C., 1965), an action identical to the instant case in all material respects, the court said: '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."

3. In Gupton, supra, a service station employee was using a pickup truck owned by his employer to deliver gasoline to a stalled automobile. The driver of the stalled automobile was an uninsured motorist. The employee was pouring gasoline out of a gasoline can into the automobile of the uninsured motorist when that vehicle suddenly backed into him, causing his injuries. The court held that the employee was covered by the employer's insurance policy because, although outside of the truck, he was 'using' the truck within the meaning of the uninsured motorist statute. In Gupton it should be noted that the uninsured motorist statute in issue was adopted by the South Carolina legislature in 1962, one year prior to the initial enactment of the Uninsured Motorist Act by the General Assembly of the State of Georgia. The South Carolina Act defines the term 'insured' in the exact same words as does Code Ann. § 56-407.1.

Another persuasive case is Owens v. Ocean Acc. & Guarantee Corp., 194 Ark. 817, 109 S.W.2d 928, which dealt with whether certain injuries arose out of the 'ownership, maintenance, or use' of a certain ambulance. The injured party, who fell out of the ambulance stretcher on the sidewalk some distance from the ambulance, was held to be covered by the policy. The court noted that the use of the stretcher to transport the injured party outside of the ambulance 'was an essential transaction in connection with use of the automobile as an ambulance.' 109 S.W.2d, p. 930. The utilization of the large garbage container outside of the truck by the plaintiff in the instant case was just as much an 'essential transaction in connection with use' of the garbage truck as was the stretcher in Owens or the gas can in Gupton an 'essential transaction in connection with the use' of the ambulance or pickup truck, respectively. See also Panhandle Steel Products Co. v. Fidelity Union Casualty Co., 23 S.W.2d 799 (Tex.Civ.App.) (unloading of steel from delivery truck was 'use').

4. Several cases with similar factual situations in which the definition of 'use' was in issue were cited by the defendant, and must be distinguished from Owens, Gupton, and the instant case. In Ins. Co. of North America v. Perry, 204 Va. 833, 134 S.E.2d 418, a policeman was struck by an uninsured motorist while in the act of serving a warrant 164 feet away from the police cruiser. The court held that the policeman was...