Purcell v. Allstate Ins. Co.

• Decision Date: 07 September 1983
• Docket Number: No. 66327,66327
• Citation: 168 Ga.App. 863,310 S.E.2d 530
• Parties: PURCELL et al. v. ALLSTATE INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 530

310 S.E.2d 530

168 Ga.App. 863

PURCELL et al. v. ALLSTATE INSURANCE COMPANY.

No. 66327.

Court of Appeals of Georgia.

Sept. 7, 1983.

Rehearing Denied Nov. 16, 1983.

James E. Hardy, Atlanta, for appellants.

Y. Kevin Williams, Marietta, Arthur H. Glaser, Atlanta, for appellee.

CARLEY, Judge.

Appellants Perry and Behre Purcell are husband and wife. Mr. Purcell is self-employed and does business as Purcell Radiator Service. In 1976, Mr. Purcell purchased a Chevrolet Sport Van. The purchase was financed by Allstate Enterprises, Inc., and Mr. Purcell obtained this loan through an agent of appellee Allstate Insurance Company (Allstate). Credit life insurance in the amount of the loan was obtained from Allstate Life Insurance Company and covered the life of Mr. Purcell. Mr. Purcell also obtained insurance coverage on the vehicle from Allstate. This coverage was obtained through the same Allstate agent who had arranged the financing. The policy which was issued was denominated as a "business auto policy" and the named insured was listed as "Purcell Radiator Serv.," an "individual" business. Premiums were paid by checks drawn on the account of Purcell Radiator Service.

In 1981, while Mrs. Purcell was walking across a street, she was struck by an automobile and sustained extensive personal injuries. The automobile which struck Mrs. Purcell was being operated by Donald E. Majors. Mr. Majors carried only the basic no fault coverage, pursuant to which Mrs. Purcell received $2,500, an amount equal to approximately half of her medical expenses. Mr. and Mrs. Purcell subsequently filed individual suits against Majors. Discovery revealed that Mr. Majors' liability coverage contained a $10,000 limit, the full amount of which his insurer offered the Purcells in settlement of their pending actions. At that point, the Purcells filed an action in two counts against Allstate. In Count I, the Purcells sought to recover some $2,450 pursuant to the no fault provisions of the Allstate policy, an amount representing the balance of Mrs. Purcell's medical bills remaining after deducting the $2,500 payment from Mr. Majors' no fault carrier. In Count II, the Purcells sought to recover $15,000 pursuant to the uninsured motorist provisions of the Allstate policy, an amount representing the balance between that policy's $25,000 limit for such coverage and the $10,000 limit of Majors' liability policy. It is undisputed on the record before us that Allstate paid the Purcells the $2,450 that they sought as no fault benefits under the policy, leaving as the only issue remaining unresolved whether they were entitled to recover under the uninsured motorist provisions of the Allstate policy.

Because the Purcells' actions against Majors were still pending, Allstate filed its own complaint against the Purcells and Majors seeking a declaration that the Purcells would not be entitled to coverage pursuant to the uninsured motorist provisions of the Allstate policy in payment of any judgment that might be obtained against Majors. All parties agreed to the enjoining of the Purcells' law-suits against Majors, and Allstate subsequently moved for summary judgment in the instant declaratory judgment action. The trial court granted Allstate's motion and it is from that order that the Purcells bring the instant appeal.

With regard to policies of insurance, as with any other contract, " '[t]he cardinal rule of construction is to ascertain the intention of the parties.' [Cit.]" Alley v. Great American Ins. Co., 160 Ga.App. 597, 599, 287 S.E.2d 613 (1981). It is essentially Allstate's position that the intent of its policy was to provide coverage consistent only with the Chevrolet's status as a business vehicle and not as Mr. Purcell's personal automobile. In this regard, Allstate relies upon the fact that the named insured in the "business auto policy" is "Purcell Radiator Serv." rather than Mr. Purcell personally. Since the only definition by which Mrs. Purcell could be an "insured" under the policy for purposes of uninsured motorist coverage would be as a "family member" (further defined in the policy as "a person related to [the named insured] by blood, marriage, or adoption who is a resident of the [named insured's] household ..."), and since Mrs. Purcell is clearly not related by marriage to "Purcell Radiator Serv.," the named insured, Allstate asserts that no uninsured motorist coverage is afforded to Mrs. Purcell under the "business auto policy." See Fowler v. U.S. Fid. & Guar. Co. 133 Ga.App. 842, 212 S.E.2d 486 (1975). Conceding that the result would be different if the intent of the policy was to insure the Chevrolet as Mr. Purcell's personal vehicle, Allstate's final assertion is that any lack of personal coverage in the instant case must be deemed the result of Mr. Purcell's failure to read the "business auto policy" which was issued. Gilly's Sausage Co. v. Cotton States Mut. Ins. Co., 165 Ga.App. 105, 299 S.E.2d 413 (1983).

That the named insured on the policy is "Purcell Radiator Serv." rather than Mr. Purcell does not demonstrate that the intent of the policy was not to afford the coverage sought by the Purcells in the instant case. "A trade name is merely a name assumed or used by a person recognized as a legal entity. [Cits.] A judgment against one in an assumed or trade name is a judgment against him as an individual. [Cits.] 'An undertaking by an individual in a fictitious or trade name is the obligation of the individual.' [Cit.] The fact that [Mr. Purcell] purchased this automobile in the name that he used in doing business does not contradict the fact that he owned the automobile as an individual ... Under [OCGA § 40-1-1(34) and (38) (Code Ann. § 68A-101) ] the owner of an automobile must necessarily be a natural person, firm, copartnership, association, or corporation. [Mr. Purcell] doing business in the trade name [Purcell Radiator Service] could be none of these except a natural person." Samples v. Ga. Mut. Ins. Co., 110 Ga.App. 297, 299, 138 S.E.2d 463 (1964). Accordingly, it is clear that Mr. Purcell, not Purcell Radiator Service, was the owner of the vehicle insured by Allstate. Compare Fowler v. U.S. Fid. & Guar. Co., supra. OCGA § 33-7-11(a)(1) (Code Ann. § 56-407.1) provides that "[n]o automobile liability policy or motor vehicle liability policy shall be issued or delivered in this state to the owner of such vehicle ... unless it contains an...