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

• Decision Date: 14 February 2012
• Docket Number: No. A11A1849.,A11A1849.
• Citation: 314 Ga.App. 110,722 S.E.2d 923,12 FCDR 536
• Parties: HAYS v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
• Court: Georgia Court of Appeals

12 FCDR 536

314 Ga.App. 110

722 S.E.2d 923

HAYS

v.GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.

No. A11A1849.

Court of Appeals of Georgia.

Feb. 14, 2012.

A. James Rockefeller, Perry, for appellant.

Sumner, Avery & Harper, Joseph Carl Sumner, Jr., Dublin, Sarah Shuman Harper, Chambliss, Higdon, Richardson, Katz & Griggs, Jon Christopher Wolfe, Macon, for appellee.

MILLER, Judge.

Georgia Farm Bureau Mutual Insurance Company (“Georgia Farm”) filed a complaint for declaratory judgment to determine its responsibility pursuant to a homeowner's insurance policy to defend James Buckbee against a lawsuit filed by Martin Hays, who was injured while Buckbee was operating his vehicle on his property. Georgia Farm and Hays filed cross-motions for summary judgment. The trial court granted Georgia Farm's motion for summary judgment and denied Hays's summary judgment motion, finding that a policy exclusion applied because Hays's bodily injury arose out of Buckbee's use of a motor vehicle. Hays filed the instant appeal to challenge the trial court's rulings. Finding no error, we affirm.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9–11–56(c).” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga.App. 459(1), 486 S.E.2d 684 (1997). We apply a de novo standard of review and view the evidence in the light most favorable to the nonmovant. Id.

So construed, the evidence shows that, in August 2007, Buckbee and Hays attempted to lift a portable toilet onto the top of a deer stand that was located on Buckbee's property. Buckbee attached a rope to the top of the modified portable toilet, ran it through a pulley attached to the top of the deer stand, and then attached the rope to the rear of his pickup truck. Hays was standing on top of the deer stand during the attempted maneuver. When Buckbee began driving his truck forward to lift the portable toilet, the deer stand fell 20 feet to the ground, as did Hays, who sustained various injuries.

Hays subsequently filed suit against Buckbee, alleging that Buckbee negligently operated a motor vehicle and used excessive force on the pulley system. Buckbee was insured under a homeowner's policy issued by Georgia Farm. Georgia Farm filed an action for declaratory judgment to determine whether it was obligated to defend Buckbee in Hays's action against him. Georgia Farm and Hays subsequently filed cross-motions for summary judgment. In its motion for summary judgment, Georgia Farm asserted that its policy did not provide coverage for Hays's claims based upon an exclusion stating that coverage “[did] not apply to bodily injury ... arising out of ... the ownership, maintenance, use, loading or unloading of motor vehicles ... owned or operated by or rented or loaned to [Buckbee].” Hays, in turn, argued that the policy exclusion did not apply, because the phrase “use ... of a motor vehicle” in the exclusionary clause was ambiguous, and Buckbee's truck was not being used as a motor vehicle in an “ordinary” way.

The trial court granted Georgia Farm's motion for summary judgment and denied Hays's summary judgment motion, finding that Hays's claims arose out of the use of Buckbee's truck, and that, therefore, the policy exclusion applied.

1. Hays contends that the trial court's decision was erroneous since the phrase “use ... of a motor vehicle,” as used in the exclusionary clause, is ambiguous. He also asserts that the exclusionary clause did not apply because the truck was not being used as a motor vehicle, but as an external power source. We disagree.

[I]n Georgia, insurance is a matter of contract, and the parties to an insurance policy are bound by its plain and unambiguous terms. Thus, when faced with a conflict over coverage, a trial court must first determine, as a matter of law, whether the relevant policy language is ambiguous. A policy which is susceptible to two reasonable meanings is not ambiguous if the trial court can resolve the conflicting interpretations by applying the rules of contract construction.

(Punctuation and footnotes omitted.) Old Republic Union Ins. Co. v. Floyd Beasley & Sons, 250 Ga.App. 673, 675(1), 551 S.E.2d 388 (2001). Where a term of a policy of insurance is susceptible to two or more reasonable constructions, and the resulting ambiguity cannot be resolved, the term will be strictly construed against the insurer as the drafter and in favor of the insured. Padgett v. Ga. Farm, etc. Ins. Co., 276 Ga.App. 796, 797, 625 S.E.2d 76 (2005). If a policy exclusion is unambiguous, however, it must be given effect “even if beneficial to the insurer and detrimental to the insured. We will not strain to extend coverage where none was contracted or intended.” (Citations and punctuation omitted.) Jefferson Ins. Co., etc. v. Dunn, 269 Ga. 213, 216, 496 S.E.2d 696 (1998).

The phrase “use of a motor vehicle” is not defined in Georgia Farm's insurance policy. This Court has defined the term “use” as “to employ for some purpose.” (Punctuation and footnote omitted.) Lancer Ins. Co. v. United Nat. Ins. Co., 294 Ga.App. 261, 262, 668 S.E.2d 865 (2008). However, an “exact or bright-line definition of the term is ‘elusive,’ ” and is “dependent to a great extent on the circumstances of the case.” (Citations and punctuation omitted.) Roberts v. Burke County School Dist., 267 Ga. 665, 667, 669, 482 S.E.2d 283 (1997). Notwithstanding the elusiveness of an exact definition of the term “use,” Georgia courts have considered the much broader question whether an injury arises out of the “use” of a vehicle. See, e.g., id. (whether death of a child who was killed while walking along a heavily traveled road arose out of the “use” of a school bus which had earlier dropped him off at an unauthorized spot); Atlanta Postal Credit Union v. Intl. Indem. Co., 228 Ga.App. 887, 494 S.E.2d 348 (1997) (whether fatal heart attack arose out of the “use” of a wrecker employed to repossess a car from the home of the deceased); Hartford Accident, etc. Co. v. Booker, 140 Ga.App. 3, 230 S.E.2d 70 (1976) (whether injuries of sanitation worker who was struck by a passing vehicle while collecting garbage arose out of the “use” of his garbage truck which was parked approximately 30 feet away).

Whether an injury arose out of “use” of a motor vehicle, turns on consideration of (i) the physical proximity of the injury site to the vehicle, (ii) “the nature of the conduct which caused the situation of jeopardy,” and (iii) whether the vehicle was “being ‘utilized’ in the plain and ordinary sense of the word.” (Punctuation and footnotes omitted.) Old Republic, supra, 250 Ga.App. at 676–677(1), 551 S.E.2d 388. In evaluating physical proximity, we consider more than “how close the [truck] was to the accident scene, because ‘use’ also embraces the notion that the person using the [truck] had control over it or that such control was reasonably at hand.” (Footnote omitted.) Id.

Applying these considerations in the instant case, we conclude that the phrase “use of a motor vehicle” was not ambiguous, and that Buckbee's truck was in “use.” The evidence showed that Buckbee's truck was at or near the location of the accident, Buckbee had control of the truck at the time, and Buckbee's operation of the truck was the conduct that caused the accident. Further, Buckbee deposed that he often towed and pulled heavy objects, using the hooks on the truck's bumper. Buckbee's testimony established that the truck's utility function in this respect was an ordinary use of the truck. See Assurance Co. of America v. Bell, 108 Ga.App. 766, 772(3), 134 S.E.2d 540 (1963) (holding that a vehicle was not in “use,” within the meaning of an exclusionary clause, because it was not being utilized in its ordinary function, but was rather employed as a playpen, at the time of the accident); cf. Booker, supra, 140 Ga.App. at 7(5), 230 S.E.2d 70 (holding that common sense dictated that the parties contemplated that the “use” of a garbage truck included a sanitation worker's walking down the side of the road to collect garbage). Under these...