Ivey v. First of Georgia Ins. Co.

• Decision Date: 14 July 1993
• Docket Number: Nos. A93A0056,A93A0057,s. A93A0056
• Parties: IVEY v. FIRST OF GEORGIA INSURANCE COMPANY. SMITH v. FIRST OF GEORGIA INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 556

434 S.E.2d 556

209 Ga.App. 784

IVEY v. FIRST OF GEORGIA INSURANCE COMPANY.

SMITH v. FIRST OF GEORGIA INSURANCE COMPANY.

Nos. A93A0056, A93A0057.

Court of Appeals of Georgia.

July 14, 1993.

Reconsideration Denied July 30, 1993.

Certiorari Denied Nov. 4, 1993.

Lawrence J. Pond, Thomas W. Malone, Atlanta, for appellant (case no. A93A0056).

White, Smith, Howard & Ajax, John A. Howard, Kenneth B. Hodges III, Atlanta, for appellant (case no. A93A0057).

Hodges, Erwin, Hedrick & Kraselsky, Edmund A. Landau III, Albany, for appellee.

JOHNSON, Judge.

In late 1989, Jack Wade Ivey, Jr., sold a Midget Mustang I airplane to Randy Smith. Smith was 19 years old and had recently obtained his private pilot's license. In conjunction with the sale, and at the insistence of Smith's father, Ivey agreed to teach Smith how to fly the aircraft. After some preliminary instruction in a two-seat, tail-wheel aircraft, Smith attempted his first solo flight in the Mustang. Because of the single seat design of the Mustang, Ivey remained on the ground and used a handheld radio to communicate with Smith during flight. On his first landing approach, Smith bounced the airplane and attempted to abort the landing and execute a "go-around" by applying full power. While this procedure was correct for the aircraft Smith had been trained in, the Mustang was a high-power, high-torque aircraft, and applying full power caused the plane to roll inverted. Smith then lost control resulting in a serious accident. Smith brought suit against Ivey. Ivey notified First of Georgia Insurance Company, underwriters of his homeowner's insurance policy of the claim and asked First of Georgia to provide a defense. First of Georgia brought a declaratory judgment action, asserting that there was no coverage for the claim on the basis of a specific provision in the policy which excluded claims "arising out of the ownership, maintenance, use, loading or unloading of an aircraft." The trial court found that the exclusion relating to aircraft relieved First Georgia of the duty to defend and held that no coverage was available for Smith's claim under the homeowner's policy issued to Ivey by First of Georgia. Ivey and Smith appeal.

The exclusion relating to use of aircraft has not been construed by the courts of this state. However, the exclusion language in this section of the policy uses language identical to the language used in the exclusion relating to motor vehicles. ¹ This court has adopted a liberal definition of the word "use." "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.' " (Citation and punctuation omitted.) Hartford Accident, etc., Co. v. Booker, 140 Ga.App. 3, 4-5(2), 230 S.E.2d 70 (1976). See also Ga. Farm Bureau Mut. Ins. Co. v. Greene, 174 Ga.App. 120, 122, 329 S.E.2d 204 (1985).

The record shows that the accident occurred when appellee's insured was teaching appellant to fly the new airplane. It is impossible to imagine a circumstance in which a flight instructor could provide ground to air instruction without the involvement of an airplane. We do not need to stretch the meaning of any word to conclude that both Ivey and Smith were using the plane at the time of the tragic accident.

"Ambiguity in an insurance policy may be defined as duplicity, indistinctness, an uncertainty of meaning or expression.... Even applying the rule that any exclusion from coverage must be construed strictly against the insurer, the policy language remains plain and unambiguous, and accordingly the parties are bound by its terms." (Citations and punctuation omitted.) Hartford Ins. Co., etc. v. Franklin, 206 Ga.App. 193, 194-195(1), 424 S.E.2d 803 (1992). The term "use" is not ambiguous in the context of this case and we need not reach for ambiguity when it is not present and the plain meaning of the policy is apparent and controls. "An insurance company may fix the terms of its policies as it wishes, provided they are not contrary to law, and it may insure against certain risks and exclude others." (Citations and punctuation omitted.) Hollis v. St. Paul Fire, etc., Ins. Co., 203 Ga.App. 252, 254, 416 S.E.2d 827 (1992). First of Georgia, in drafting the homeowner's policy issued to Ivey intended to provide coverage for those claims arising incident to the ownership of the home, and the cost of that insurance was calculated in accordance with that level of risk. It excluded those risks associated with aircraft, for which aviation insurance is available. The trial court did not err in granting summary judgment to First of Georgia.

Judgments affirmed.

POPE, C.J., BIRDSONG, P.J., COOPER, ANDREWS and SMITH, JJ., concur.

BEASLEY, P.J., concurs in judgment only.

McMURRAY, P.J., and BLACKBURN, J., dissent.

BLACKBURN, Judge, dissenting.

Under Georgia law, the coverage provisions of an insurance policy are to be liberally construed and exclusions of an insurance policy are to be strictly construed. In affirming the trial court's grant of summary judgment for the insurer, the majority opinion breaches this rule of construction by liberally interpreting a policy exclusion.

The policy in question in this case generally covered an occurrence, defined as "an accident, including exposure to conditions, which results ... in bodily injury; or property damage." However, the policy excluded coverage for bodily injury or property damage "arising out of the ownership, maintenance, use, loading or unloading of an aircraft...." The only issue in this case is whether the term "use" in the exclusion is limited to the use of an aircraft by the insured, or included all use of an aircraft by any person.

Generally, " '[t]he law favors coverage, as that is the intent of purchasing insurance in the first place. (Cit.)' [Cit.]" State Farm, etc., Ins. Co. v. Acheson, 182 Ga.App. 218, 219, 355 S.E.2d 128 (1987). "Any exclusion sought to be invoked by the insurer ... will be liberally construed in favor of the insured and strictly construed against the insurer unless same is clear and unequivocal. [Cits.]" Travelers Indem. Co. v. Whalley Constr. Co., 160 Ga.App. 438, 441, 287 S.E.2d 226 (1981). When a provision in an insurance policy is susceptible of two or more constructions, the courts will apply the construction that favors the insured. Atlantic Wood Indus. v. Lumbermen's, etc., Alliance, 196 Ga.App. 503(3), 396 S.E.2d 541 (1990).

" '[I]f the term "use" is construed to embrace all its possible meanings and ramifications, practically every activity of mankind would amount to a "use" of something. However, the term must be considered with regard to the setting in which it is employed....' " Assurance Co. of America v. Bell, 108 Ga.App. 766, 772, 134 S.E.2d 540 (1963). In the instant case, the policy fails to define the term "use," and while the majority of the exclusions contained in the policy specifically refer to the insured, the subject exclusion fails to specify to whom it applies, which it could easily have done. Considering the context in which the exclusion regarding the use of aircraft appears, the exclusion is susceptible of being construed to apply either (1) only to the insured's use of an aircraft, or (2) to any person's use of an aircraft. It follows that the exclusion should be read to apply only to the use of an aircraft by the insured under the policy. Atlantic Wood Indus. v. Lumbermen's, etc., Alliance, supra.

Neither this court nor the Supreme Court has established a binding precedent construing the exclusion contained in the policy in this...