Hemphill v. Home Ins. Co., 44782
| Decision Date | 06 March 1970 |
| Docket Number | 2,Nos. 1,No. 44782,3,44782,s. 1 |
| Citation | 174 S.E.2d 251,121 Ga.App. 323 |
| Parties | , 121 Ga.App. 458 Ralph HEMPHILL et al. v. HOME INSURANCE COMPANY et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The permission required of a named insured under the omnibus clause of an automobile liability policy defining as an additional insured 'any other person using such automobile with the permission of the named insured, provided his actual operation * * * thereof is within the scope of such permission' relates only to the purpose for which permission is given and not to the identity of the operator. So long as the automobile is being used for a permitted purpose, it is being used by a 'second permittee' with the permission of the named insured and is being operated by him within the scope of that permission, regardless of whether he has the named insured's express or implied authorization to operate it.
2. (a) The same principle applies to a 'temporary substitute automobile' provision which requires that the substitute must be 'used with the permission of the owner' of the substitute automobile.
(b) Assuming, without deciding, that the policy under consideration requires permission of the named insured for the use of a temporary substitute automobile, the permission granted by the named insured in this case was amply broad as to time and circumstance to authorize by implication the permittee to secure another automobile as a temporary substitute for the owned automobile which had been withdrawn from normal use for repairs.
3, 4. Under the circumstances of this case, the operation of the substitute automobile by the 'second permittee' was for a permitted purpose and was within the scope of the permission granted by both the named insured and the owner of the substitute.
5. A denial of coverage within the meaning of the language of insurance policies defining an uninsured vehicle, and the language of Code Ann. § 56-407.1(b)(ii), is a denial which is legally sustainable.
6. There is no appeal from and no enumeration of error on a prior judgment holding that a judgment of a Federal district court was, as between the parties thereto, res judicata.
7. The rulings made are dispositive of all issues, and questions raised by other enumerations of error are not considered.
Plaintiffs, five male individuals and the wives of four of them, filed their complaint against several insurance companies seeking recovery of judgments they had previously obtained in damage suits. The damage suits arose out of a collision between an automobile in which the male plaintiffs were riding and a 1965 Chevrolet driven by Arthur Lee Daugherty and owned by Walker Chevrolet Company. The suits by the male plaintiffs were primarily for personal injuries sustained in the collision, and the suits of the female plaintiffs were for loss of consortium of their respective husbands. All of the plaintiffs' actions resulted in substantial jury awards against Daugherty's estate which they seek in the present action to recover from one or more of the defendant insurance companies on policies of insurance which plaintiffs contend afforded coverage to the parties or their vehicles.
Phoenix of Hartford Insurance Company had issued a standard type family automobile liability policy containing an omnibus clause to Robert L. Scholz (hereinafter called 'Father Scholz') covering a 1967 Chevelle. Father Scholz turned the Chevelle over to Robert N. Scholz (son of Father Scholz and hereinafter called 'Son Scholz') for general transportation purposes without restriction as to use, except that he was not to let anyone else drive it. Father Scholz lived in Miami, Florida, and Son Scholz was serving in the Armed Forces at Fort Stewart, Georgia. Son Scholz used the Chevelle as he saw fit, and among other purposes he used it to travel from Fort Stewart to Jacksonville, Florida, where he maintained an apartment for his wife. The vehicle had been so used for approximately two months by Son Scholz when it was involved in a collision in Jesup, Georgia, with an automobile driven by the daughter of Randall Walker. At the time of this collision the Chevelle was being driven by Daugherty, a friend of Son Scholz.
Walker was the owner of Walker Chevrolet Company and because his daughter was involved in the collision, and possibly responsible for it, he loaned the 1965 Chevrolet to Son Scholz without monetary payment while the Chevelle was being repaired in the company's shop. Some two weeks later, while the Chevelle was still under repair, the 1965 Chevrolet was involved in the collision giving rise to the plaintiffs' claims while Son Scholz was a passenger therein but while driven by Daugherty.
Universal Underwriters Insurance Company, a present defendant, had issued to Walker Chevrolet Company its garage type liability policy without omnibus clause. This policy contained an endorsement affording liability coverage as outlined in the policy with respect to any automobile rented by the company to its customers.
After the plaintiffs' damage suits were filed against Daugherty's estate, Phoenix filed against the plaintiffs a declaratory judgment proceeding in the United States District Court for the Southern District of Georgia, asserting that it was not liable under its policy under the circumstances in question, and this position was sustained in that court on motion for summary judgment. No appeal was taken, although the judgment entered was in direct conflict with the holding of our Supreme Court in Strickland v. Georgia Cas., etc., Co., 224 Ga. 487, 162 S.E.2d 421. In the present action, Phoenix' motion to dismiss, based upon the proposition that the district court judgment was res judicata as to the plaintiffs, was sustained by the court below without prejudice to the defective assertion by other insurance companies that they are not concluded by the district court judgment, since they were not parties to that proceeding.
The remaining defendants in the present action, State Farm Mutual Automobile Insurance Company, Georgia Farm Bureau Mutual Insurance Company, and The Home Insurance Company, at the time of the collision giving rise to plaintiffs' claims, had outstanding policies of insurance affording uninsured motorist coverage, either basic, excess or both, to one or more of the male plaintiffs.
All of the parties moved for summary judgment, with the exception of Phoenix which was no longer a party. Plaintiffs contended in support of their motion that no liability coverage was afforded by either Phoenix or Universal with respect to the 1965 Chevrolet and that the male plaintiffs should therefore recover against the defendant companies which afforded uninsured motorist coverage to them. On the other hand the motions of the uninsured motorist carriers asserted among several other grounds that the policies of Phoenix and Universal afforded liability coverage to Daugherty on the occasion in question and that for this reason uninsured motorist coverage was not available to plaintiffs. Universal's motion asserts that its policy afforded no liability protection under the circumstances presented.
The trial court concluded that Universal's garage policy did not afford coverage but that Phoenix' family policy did, although it was unavailable by reason of the Federal district court judgment. Therefore the court sustained the motions of Universal and the uninsured motorist carriers and overruled the plaintiffs' motion. Since this ruling eliminated all remaining defendants, plaintiffs' complaint was dismissed. Plaintiffs appeal, enumerating as error the sustaining of the defendants' motions for summary judgment and the overruling of their motion.
Ross & Finch, Claude R. Ross, Charles E. McCranie, Atlanta, for appellants.
Neely, Freeman & Hawkins, Thomas H. Harper, Jr., Lokey & Bowden, Hamilton Lokey, Atlanta, Milton Harrison, Smith & Harrington, Will Ed Smith, Eastman, Martin, Snow, Grant & Napier, Cubbedge Snow, Jr., Cubbedge Snow, Macon, for appellees.
The issue in this case is whether Daugherty was afforded liability insurance coverage by either Phoenix 1 or Universal while operating the 1965 Chevrolet at the time of the collision with the automobile occupied by plaintiffs. If he was afforded liability coverage by either, then the uninsured motorist coverage afforded by the other defendant companies would be unavailable to plaintiffs. 2 See Code Ann. § 56-407.1.
Since we conclude that the trial court was correct in holding that the Phoenix policy did provide liability coverage, we find it unnecessary, as did the trial court, to deal with other defensive assertions made by the uninsured motorist carriers. The trial court did, however, rule that no liability coverage was afforded by Universal's policy and sustained its motion for summary judgment as well as its motion to dismiss a cross claim filed against it by Georgia Farm Bureau. In view of our conclusion that Phoenix' policy provided liability coverage to Daugherty, rendering any uninsured motorist coverage of plaintiffs unavailable, it is unnecessary to consider the contention of the uninsured motorist carriers that Universal's policy also provided coverage; and, since plaintiffs are in accord with the trial court's ruling with respect to Universal and have expressly abandoned any claim against it, it is unnecessary to review this ruling from the plaintiffs' standpoint. It would, of course, be necessary to consider whether there was coverage under Universal's policy if, for any reason, we concluded that there was no coverage under the Phoenix policy; for coverage under either would render the uninsured motorist coverage unavailable-but we do not reach that problem.
The issues with respect to Phoenix' policy are (1) whether Daugherty was an omnibus permittee and thus an insured under the liability policy issued to Father Scholz; (2) whether...
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