Northbrook Property & Cas. Ins. Co. v. Merchant

• Decision Date: 26 August 1994
• Docket Number: No. A94A0935,A94A0935
• Citation: 450 S.E.2d 425,215 Ga.App. 273
• Court: Georgia Court of Appeals
• Parties: NORTHBROOK PROPERTY & CASUALTY INSURANCE COMPANY v. MERCHANT et al.

Page 425

450 S.E.2d 425

215 Ga.App. 273

NORTHBROOK PROPERTY & CASUALTY INSURANCE COMPANY v. MERCHANT et al.

No. A94A0935.

Court of Appeals of Georgia.

Aug. 26, 1994.

Reconsiderations Denied Nov. 21, 1994.

Certiorari Denied Feb. 23, 1995.

Adams & Ellis, George L. Lewis, Savannah, for appellant.

Brennan, Harris & Rominger, G. Mason White, Savannah, Lissner, Killian, Cunningham & Boyd, Robert P. Killian, Brunswick, Franklin, Taulbee, Rushing & Bunce, Keith A. McIntyre, Statesboro, Dubberly & McGovern, Joseph D. McGovern, Glennville, for appellees.

BLACKBURN, Judge.

We granted the interlocutory application of Northbrook Property & Casualty Insurance Company, automobile liability and workers' compensation insurance carrier for Norman W. Fries, Inc. d/b/a Claxton Poultry Company (Claxton), in this consolidated action to determine Northbrook's liability for the payment of uninsured motorist benefits for injuries received by four of Claxton's employees while standing near insured vehicles during a motor vehicle collision.

The record viewed in the light most favorable to the nonmovants shows that Northbrook issued a business automobile policy to Claxton for the policy period of October 1, 1990, to October 1, 1991, and the named insureds under the policy were Claxton Poultry Company, Claxton Poultry Farms, and Norman W. Fries individually. In addition to the named insureds and Fries' family members, the policy provided that the definition of an insured also includes "[a]nyone else 'occupying' a covered 'auto' or a temporary substitute for a covered 'auto.' " For uninsured motorist purposes, " '[o]ccupying' means in, upon, getting in, on, out or off."

On March 19, 1991, appellees Larry Merchant, Michael Lynn, Tommy Cox, and Jesse Roberson, all employees of Claxton, were dispatched by Claxton to a highway to assist in the transfer of feed from a tractor trailer bound for Claxton to one of Claxton's tractor trailers, and drove an insured pickup truck and an insured tractor trailer to the location. While assisting with the transfer of feed using an auger attached to the inoperable vehicle and the insured tractor trailer, the men were injured when an intoxicated driver struck the pickup truck which was parked adjacent to the inoperable tractor trailer for the purpose of illuminating the area. As a result, the pickup truck propelled forward and struck Merchant, Lynn, Cox, and Roberson who were either standing or kneeling at the rear of the truck. Because their injuries arose out of and in the course of their employment with Claxton, Northbrook paid Cox, Merchant, Roberson, and Lynn workers' compensation benefits.

1. Northbrook initially asserts that the trial court erred in denying their motion for summary judgment because the employees were not occupying the insured vehicle at the time of the collision. Although the language of the uninsured motorist portion of the policy at issue requires that an individual occupy the covered vehicle for uninsured motorist protection, this provision is in conflict with statutory law. OCGA § 33-7-11(b)(1) specifically provides that insured persons includes "any person who uses, with the expressed or implied consent of the named insured, the motor vehicle to which the policy applies...." As we stated in Hartford Accident, etc., Co. v. Booker, 140 Ga.App. 3, 4(1), 230 S.E.2d 70 (1976), "[w]here there is a conflict in an insurance policy and the uninsured motorist statute, the statute controls." (Citations omitted.)

Accordingly, our inquiry must focus on whether the employees were using the insured vehicle at the time that they were injured. This court has adopted a liberal definition of the term "use." See Ivey v. First of Ga. Ins. Co., 209 Ga.App. 784, 434 S.E.2d 556 (1993). "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...