Safeway Ins. Co. v. Holmes
| Decision Date | 21 November 1989 |
| Docket Number | No. A89A1786,A89A1786 |
| Parties | SAFEWAY INSURANCE COMPANY v. HOLMES et al. |
| Court | Georgia Court of Appeals |
Crim & Bassler, Harry W. Bassler, Joseph M. Murphey, Thomas S. Bechtel, Atlanta, for appellant.
William V. Hall, Jr., for appellees.
This is a declaratory judgment action. Plaintiff Safeway Insurance Company issued a policy of automobile insurance to defendant Roger Cox which insured a 1982 Ford Escort automobile. On December 5, 1985, defendant Carol Cox, wife of defendant Roger Cox, drove a rented 1985 Mustang to a shopping mall where she became so ill as to be unable to drive and was taken home. Thereafter, defendant Heather Shea Holmes, daughter of defendant Carol Cox, accompanied a friend to the shopping mall in order to drive the rented 1985 Mustang home. While doing so defendant Holmes was involved in a collision with the vehicle of defendant Collins. Defendant Collins filed an action to recover damages for alleged injuries received in the collision against defendants Holmes, Carol Cox and Roger Cox.
Plaintiff undertook the defense of the automobile collision action under a reservation of rights and filed this action seeking a declaration that no coverage exists under the insurance policy issued to defendant Roger Cox with respect to any liability plaintiff's insureds may be adjudged owing as a result of the alleged actions referred to in the automobile collision case. Defendants contend that coverage was provided to the rented 1985 Mustang under a policy provision which provided coverage to "Any auto ... you do not own while used as a temporary substitute for any other vehicle described in this definition which is out of normal use because of its breakdown, repair, servicing, loss or destruction." Upon the trial of the case before the superior court without a jury, the superior court granted defendants' motion to dismiss following the presentation of plaintiff's evidence. Held:
1. Plaintiff contends that it was error for the trial court to find that the 1985 Mustang was a temporary substitute automobile within the terms of the insurance policy since at the time of the collision the insured 1982 Ford Escort was in normal service. However, both defendant Roger Cox and defendant Carol Cox testified that the insured 1982 Ford Escort was placed in the shop for mechanical repairs prior to December 5, 1985. While plaintiff presented testimony of an independent claims adjuster concerning his telephone conversation with defendant Carol Cox in which she stated that the 1982 Ford Escort was at home at the time of the motor vehicle collision, her testimony that the 1982 Ford Escort was not driveable on the date of the collision was not rebutted.
Pursuant to OCGA § 9-11-41(b), upon defendant's motion to dismiss at the close of plaintiff's evidence in a nonjury trial the trial court has the power to adjudicate the case on the merits and need not view the evidence in the light most favorable to plaintiff. Comtrol, Inc. v. H-K Corp., 134 Ga.App. 349, 352(2), 214 S.E.2d 588. See also Kennery v. Mosteller, 133 Ga.App. 879, 212 S.E.2d 447. The trial court, as trier of fact, was authorized to conclude on the basis of the evidence before it that the insured 1982 Ford Escort was not in normal use on December 5, 1985, the date of the collision. We find nothing in the trial court's conclusions inconsistent with our ...
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