Maryland Cas. Co. v. Rhoden, 67562

• Decision Date: 18 April 1984
• Docket Number: No. 67562,67562
• Citation: 170 Ga.App. 704,318 S.E.2d 175
• Parties: MARYLAND CASUALTY COMPANY v. RHODEN et al.
• Court: Georgia Court of Appeals

Page 175

318 S.E.2d 175

170 Ga.App. 704

MARYLAND CASUALTY COMPANY v. RHODEN et al.

No. 67562.

Court of Appeals of Georgia.

April 18, 1984.

Rufus D. Sams III, Charles L. Ruffin, Macon, for appellant.

Charles E. Moore, Atlanta, Robert S. Slocumb, Macon, Robert C. Semler, Brian A. Boyle, Atlanta, for appellees.

CARLEY, Judge.

The instant declaratory judgment action involves the construction of the uninsured motorist provisions of an insurance policy. Appellant-Maryland Casualty Company is the uninsured motorist carrier for appellee-Sidney Rhoden. The uninsured motorist endorsement of Mr. Rhoden's policy provides that he "or any family member" is an "insured" thereunder. In addition, the endorsement specifically defines an "insured" as including: "Anyone for damages he is entitled to recover because of bodily injury sustained by another insured." However, the endorsement also specifically provides that "[t]his insurance does not apply to: ... Anyone using a vehicle without a reasonable belief that the person is entitled to do so."

Jennifer Rhoden is Mr. Rhoden's minor unmarried child. On the day in question, Miss Rhoden was a passenger in her father's automobile. The automobile was being operated by David Horton, who is a friend of Miss Rhoden's and also a minor. Neither Miss Rhoden nor Mr. Horton had permission to use Mr. Rhoden's automobile. A collision occurred and Miss Rhoden was injured.

The Rhodens filed an action against Mr. Horton. Appellant, as Mr. Rhoden's uninsured motorist carrier, was also served a copy of the complaint. Mr. Horton's liability carrier filed the instant declaratory judgment action, seeking an adjudication that it afforded him no coverage for the collision. Appellant filed a counterclaim and crossclaim for declaratory judgment, seeking an adjudication that it afforded no uninsured motorist coverage to either Mr. Rhoden or Miss Rhoden for the collision. Both insurers moved for summary judgment. The motion of Mr. Horton's liability carrier was granted. The motion of appellant was granted as to Miss Rhoden. This ruling was based upon the policy's exclusion of coverage for "[a]nyone using a vehicle without a reasonable belief that the person is entitled to do so." Appellant's motion was denied, however, as to Mr. Rhoden's claims, which were premised upon recovering for his daughter's medical expenses and for the loss of her services. This ruling was based upon the policy's definition of an "insured" as "[a]nyone for damages he is entitled to recover because of bodily injury sustained by another insured." The trial court certified for immediate review its order on appellant's motion for summary judgment. This court granted appellant's application for an interlocutory appeal from the denial of its motion for summary judgment as to Mr. Rhoden's claims.

Appellant's contention is that, having found that Miss Rhoden was not afforded primary coverage under the endorsement for her own bodily injuries, the trial court erred in failing to further rule that coverage was likewise not afforded to Mr. Rhoden for any damages that he may have incurred as the result of his daughter's bodily injury. Specifically, appellant asserts that since the ruling regarding Miss Rhoden established that she was not an "insured" for purposes of her own bodily injuries, it must follow as a matter of law, that Mr. Rhoden was not within the definition of an "insured" as "[a]nyone ... entitled to recover because of bodily injury sustained by another insured." (Emphasis supplied.) Appellant contends that, given the fact that Miss Rhoden has been held not to be entitled to recover under the uninsured motorist endorsement, her father is, for that reason alone, likewise precluded from recovering for such damage as he might have incurred as the result of his daughter's injuries.

We start with the proposition that "[t]he purpose of uninsured motorist legislation is to require some provision for first-party insurance coverage 'to facilitate indemnification for injuries to a person who is legally entitled to recover damages from an uninsured motorist, and thereby to protect innocent victims from the negligence of irresponsible drivers.' [Cit.] Uninsured motorist statutes are remedial in nature and must be broadly construed...