Nalley v. Nationwide Mut. Fire Ins. Co.

• Decision Date: 06 May 1996
• Docket Number: No. A96A0392,A96A0392
• Citation: 221 Ga.App. 537,472 S.E.2d 82
• Parties: NALLEY et al. v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 82

472 S.E.2d 82

221 Ga.App. 537

NALLEY et al. v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY.

No. A96A0392.

Court of Appeals of Georgia.

May 6, 1996.

Reconsideration Denied May 28, 1996.

Butler, Wooten, Overby & Cheely, Robert D. Cheely, Atlanta, Patrick A. Dawson, Marietta, Keith A. Pittman, Atlanta, for appellants.

Temples, Strickland & Counts, Gregg P. Counts, Decatur, for appellee.

JOHNSON, Judge.

Nine-year-old Kristina Grantham was operating a 1992 Honda Z50R "minibike"-type motorcycle owned by her grandparents and legal guardians, Seaborn and Helen Abercrombie, when she was involved in an accident on a public roadway. The cycle was a driver-only model intended for off-road use only. However, Grantham's friend, Jamie Lea Nalley, was riding as a passenger when the cycle was struck by a car, injuring Nalley. Nalley and her mother brought suit against Grantham and the Abercrombies. Nationwide Mutual Fire Insurance Company, the Abercrombies' insurance carrier, brought this declaratory judgment action asserting there was no coverage for the accident under either the Abercrombies' automobile or homeowners insurance policy. The trial court granted Nationwide's motion for summary judgment.

Nalley acquiesces in the trial court's finding that the Abercrombies' automobile policy does not provide coverage, and bases this appeal on the trial court's conclusion that the Elite II homeowners policy does not provide coverage.

1. Nalley contends the trial court erred in finding that the minibike falls within the motor vehicle exclusion from liability coverage in the Nationwide Elite II homeowners policy. We must disagree.

The following provisions in the policy are relevant to the issues raised in this division: Section II, 1(e)(2) provides: "Coverage E -- Personal Liability, and Coverage F -- Medical Payment to Others, do not apply to bodily injury or property damage arising out of the ownership, maintenance, or use of a motor vehicle owned or operated by, or rented or loaned to an insured." Motor vehicle is defined alternatively as "a motorized land vehicle including motorized bicycles or mopeds designed for travel on public roads or subject to motor vehicle registration" (policy definitions 5(a)) or as "a motorized golf cart, snowmobile or other motorized land vehicle owned by an insured and designed for recreation use off public roads, while off an insured location" (policy definition 5(c)). The trial court concluded that the cycle at issue in this case falls within definitions of motor vehicles contained in both section 5(a) and (c).

In Addison v. Southern Guaranty Ins. Co., 155 Ga.App. 536, 271 S.E.2d 674 (1980), this Court held that a motorized trail bike not intended for use on a public highway was a "motor vehicle" subject to registration requirements, and therefore falling squarely within the exclusion language in a homeowners insurance policy similar to that at issue in this case. Similarly, in Grange Mut. Cas. Co. v. King, 174 Ga.App. 716, 331 S.E.2d 41 (1985), this Court held that a trail bike met the statutory definition of a motor vehicle subject to registration for purposes of triggering the exclusion even though the cycle had not been registered. Neither Atkinson v. Allstate Ins. Co., 182 Ga.App. 50, 354 S.E.2d 866 (1987), nor Cotton States, etc., Ins. Co. v. Statiras, 157 Ga.App. 169, 276 S.E.2d 853 (1981), cases relied upon by Nalley, requires a different result. Atkinson and Statiras examine whether vehicles which were originally designed for use principally upon public roads, but later converted into vehicles for use both on and off road, still satisfied the definitions of motor vehicles in automobile, not homeowners, insurance policies. Neither decision addressed whether the vehicles were subject to registration. We agree with the trial court's conclusion that the cycle in this case meets the statutory requirements for registration, thus falling within the definition of motor vehicle in section 5(a) of the Abercrombies' homeowners insurance policy.

The trial court further found that even if the cycle is not a motor vehicle under section 5(a), it comes under the exclusion contemplated by section 5(c), which defines motor vehicle as any "other motorized land vehicle owned by an insured and designed for recreation use off public roads, while off an insured location." Here, the girls rode a vehicle designed for off-road recreational use off the Abercrombies' property and onto a public roadway where they were involved in an accident with an automobile. These facts clearly trigger the exclusion contained in the policy.

2. Appellants argue that the trial court erred in finding that the Nationwide Elite II homeowners policy was not vague and ambiguous. Again we must disagree.

"The words used in policies of insurance, as in all other contracts, bear their usual and common significance, and policies of insurance are, as all other contracts, to be construed in their ordinary meaning.... If the provisions of an insurance policy are ambiguous, or if the provisions in it are conflicting, it is to be construed in favor of the insured and against the company. However, courts are not called upon, because of the rule that contracts of insurance are to be strictly construed against the insurer, and because the contract itself is one of insurance, to call forth doubt, through construction of plain and unambiguous provisions of such a contract." (Citations and punctuation omitted.) Hollis v. St. Paul Fire, etc. Ins. Co., 203 Ga.App. 252, 253, 416 S.E.2d 827 (1992).

Nalley argues that the definition of a motor vehicle in section 5(a) is ambiguous because it first addresses design considerations and then contains a second clause relating to registration. The clauses in section 5(a) are connected by the word "or." The definitions of a motor...