Nationwide Mut. Ins. Co. v. Southern Trust Ins. Co.
| Decision Date | 09 April 1985 |
| Docket Number | No. 69715,69715 |
| Citation | 330 S.E.2d 443,174 Ga.App. 513 |
| Parties | NATIONWIDE MUTUAL INSURANCE COMPANY v. SOUTHERN TRUST INSURANCE COMPANY et al. |
| Court | Georgia Court of Appeals |
William A. Dinges, Decatur, for appellant.
Robert B. Hocutt, Atlanta, William D. Strickland, Decatur, James P. Peters, Marietta, for appellees.
Declaratory judgment. On August 27, 1983, defendant Mack Roper took his automobile to defendant Stanley Gunter, d/b/a Stanley's Complete Auto Service and Body Shop, for repairs. This was the first time Roper brought an automobile to Gunter for repairs. After work, Gunter drove Roper's automobile home and later that evening he drove the automobile for his own pleasure and convenience. After being out all night, at approximately 8:30 the next morning, Gunter was on his way home with his friend, Ms. Dettmar, when he fell asleep at the wheel and collided with a telephone pole. As a result of the collision Ms. Dettmar suffered personal injuries and Roper's automobile was declared a total loss. At the time of the accident, Nationwide Mutual Insurance Company ("Nationwide") had issued its policy of automobile liability insurance to Gunter as the named insured; and, Southern Trust Insurance Company ("Southern Trust") had issued its policy of automobile liability insurance to Roper which covered his automobile. Nationwide acknowledged that the policy which it issued to Gunter covered him for alleged acts or omissions in the operation of Roper's vehicle. However, Southern Trust denied coverage to Gunter under the policy it issued to Roper relying on the following exclusionary clause: "We do not provide Liability Coverage for any person ... [u]sing a vehicle without a reasonable belief that that person is entitled to do so." Following Southern Trust's denial of coverage, Nationwide brought this action seeking a declaration of its rights and liabilities as compared with those of Southern Trust.
In its complaint, Nationwide contends that Southern Trust's policy extends coverage to Gunter and therefore, Southern Trust is the primary carrier and Nationwide is the excess carrier, obligating Southern Trust to defend Gunter and pay any judgment against Gunter to its policy limits in all suits which have arisen or any suit which may arise as a result of the automobile collision.
At trial, Gunter testified that he advised Roper that he would have to take the automobile to a paint store to have the paint matched. According to Gunter, Roper gave his permission for the automobile to be driven for that purpose. Roper testified that there was no such discussion. Notwithstanding this conflicting testimony, both Roper and Gunter testified that there was no other discussion between them in respect to any other use of the automobile.
Gunter also testified that he always uses his customer's vehicles for his personal reasons. Roper testified that he was not aware of this practice at Gunter's shop or any other automobile body shop.
After a bench trial, the court held that the exclusionary clause in Southern Trust's policy...
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