Nationwide Mut. Ins. Co. v. Holbrooks
| Decision Date | 05 July 1988 |
| Docket Number | No. 76467,76467 |
| Citation | 187 Ga.App. 706,371 S.E.2d 252 |
| Parties | NATIONWIDE MUTUAL INSURANCE COMPANY v. HOLBROOKS et al. |
| Court | Georgia Court of Appeals |
J. Edward Allen, Sandra M. Baumwald, Athens, for appellant.
Alton M. Adams, Toccoa, G. Allen Broxton, Gainesville, Andrew J. Hill, Jr., Athens, John A. Dickerson, Toccoa, Albert E. Jones, Steven L. Beard, Marietta, Rebecca Frazier, Smyrna, Dennis J. Webb, Atlanta, Samuel G. Church, Toccoa, George W. Wills, Jr., Carnesville, T. Michael Tennant, Lawrenceville, for appellees.
This is an action filed by Nationwide Mutual Insurance Company, the insurer of Apache Transport, Inc. (lessee of truck), to have it declared whether Nationwide is obligated to furnish a defense to Holbrooks (owner/lessor of truck) and his employee Campana (driver of truck), as insureds under Apache Transport's insurance contract with Nationwide. (A third issue concerning coverage by Holbrooks' insurer is not properly before us in this appeal.)
The plaintiffs in the personal injury and wrongful death actions underlying this declaratory action are David Hunt and his wife for his injuries, and Wayne Abbs, father of deceased Amanda Abbs and injured Kimberly Abbs who were stepdaughters of Hunt and were riding with him when Campana, driving Apache Transport's leased truck, allegedly crossed the centerline and collided with David Hunt's vehicle. In the declaratory action, these plaintiffs countered for a determination that (aside from any question involving insurance coverage), Apache Transport is vicariously liable for Campana's acts as a matter of law, pursuant to governing regulations of the Interstate Commerce Commission (ICC).
The principal issue centers around Nationwide's contention that at the time of the collision Campana, who was "bobtailing" (driving a truck tractor with trailer removed), was on a personal mission and was not engaged in the business of Apache Transport.
In rendering summary judgment against Nationwide on all the issues formed, the trial court in a well-considered order, found as pertinent, (1) beyond any issue of material fact, Campana was at the time of the collision driving the truck pursuant to permission of Apache Transport; (2) Campana and Holbrooks are therefore insureds under Apache Transport's policy with Nationwide; and (3) pursuant to statutory and regulatory provisions under the federal Interstate Common Carrier Act, the motor carrier is required to assume full direction, control and responsibility of leased vehicles for the protection of the public, and therefore, Apache Transport is vicariously liable for the actions of Holbrooks and driver Campana.
Nationwide appeals, enumerating three errors, which include a contention that any government regulations governing interstate motor carriers cannot expand the scope of a carrier's liability beyond that of respondeat superior only. Held:
1. The trial court did not err in finding, beyond any genuine issue of material fact, that Campana had the permission of Apache Transport to drive the truck, and was driving the truck pursuant to that permission at the time of the collision.
The following are the facts according to appellant Nationwide. "On or about February, 1986, Burris M. Holbrooks, Appellee herein, purchased a 1978 International truck.... That next month, Mr. Holbrooks entered into a lease agreement with Appellee, Apache Transport, Inc., to lease the 1978 International truck to Apache Transport....
Beyond this statement of facts by Nationwide, the record establishes without genuine issue that after Campana took the road test at Apache Transport's facilities in Monroe, he had no way to get to his home other than to drive the truck. According to Apache Transport's dispatcher, Campana asked Apache Transport's dispatcher if he could drive the truck home to pick up sheets and have dinner, and the dispatcher told him, "I [don't] care"; when Campana asked him when he should pick up the load in Atlanta for delivery at Louisville, Kentucky Monday morning, the dispatcher told him "the location where the trailer is at Meade Packaging is open 24 hours a day seven days a week." The dispatcher testified, Apache Transport's dispatcher stated he "personally [had no] objection" to Campana driving the truck to his home in Toccoa, that he knew Campana wanted to go home and see his wife and have dinner and get some rest, and that he did not object to that plan and did not tell Campana he could not drive the truck to his home.
Moreover, the president of Apache Transport, and owner of all the company stock, testified in deposition that nothing would be unusual about a driver going to his home before he left on an actual trip to pick up the trailer, except that "he [would be] doing it at his own discretion [and] not at ours." Apache Transport's president also testified that so far as he knew the company did not attempt to restrict Campana from driving the truck home that afternoon; that no effort was made by Apache Transport to limit where Campana drove the truck over the weekend or told him he could not drive him home, although the company could have restricted his use if it had wanted to.
Holbrook, the owner/lessor of the truck testified it was ordinary practice for drivers to take the trucks home with them when it was not in use by the company, and that the drivers "always took them home with them if a truck didn't need working on," because Holbrooks had no need for the trucks at his house and,
Appellant Nationwide contends that being outside the scope of his employment with Apache Trucking, Campana's driving the vehicle home was not with Apache Transport's permission, principally because no one specifically told him how he should schedule his time; no one told him to drive it home; and he never asked permission to do so but simply announced he would do so. Nationwide contends, in re Western Cas., etc., Co. v. Strozier, 67 Ga.App. 41 (1), 19 S.E.2d 433 (1942), that wherever the employee is outside the scope of his employment he necessarily is outside the employer's consent or permission. Obviously, however, this cannot be true where the employer has given the employee permission to use the vehicle outside the strict scope of employment. In Western Cas etc., Co., the employee was under an express prohibition of use which outweighed any general implied consent to use the truck; since the particular use was expressly prohibited, it assuredly was not used "with permission." The statement in the case that "the implied consent for the use of the truck by an employee extends only to the scope of the employment" would logically apply at best only where there is no particular express or implied consent to use it outside the strict scope of employment.
In this case, even assuming Campana's driving the truck home was outside the scope of his employment, without any issue Campana...
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