Samples v. Southern Guar. Ins. Co. of Georgia, A90A1078
| Decision Date | 26 September 1990 |
| Docket Number | No. A90A1078,A90A1078 |
| Parties | SAMPLES v. SOUTHERN GUARANTY INSURANCE COMPANY OF GEORGIA. |
| Court | Georgia Court of Appeals |
Germano, Kimmey & Cheatwood, J. Lansing Kimmey III, Atlanta, for appellant.
Darroch & Obenshain, Robert M. Darroch, Mark A. Barber, Atlanta, Husby, Myers & Stroberg, W. Allan Myers, Gainesville, Laura E. Austin, Marietta, for appellee.
Appellant-defendant Steven Samples was injured when his vehicle was struck by a vehicle which was owned by appellant-defendant James Waite, but which was being operated by appellant-defendant Virgil Bankston. As the insurer of Waite's vehicle, appellee-plaintiff Southern Guaranty Insurance Company of Georgia initiated this declaratory judgment action, seeking a declaration that it afforded Bankston no liability coverage. After discovery, appellee moved for summary judgment, relying upon the provision of its policy which excluded liability coverage for any person who drove Waite's vehicle "without a reasonable belief that [he] is entitled" to do so. The trial court conducted a hearing and, finding that no genuine issue of material fact remained as to Bankston's lack of a reasonable belief in his entitlement to drive Waite's vehicle, granted summary judgment in favor of appellee. Samples appeals from this order of the trial court.
The following facts are undisputed: On the evening before the collision, Bankston dropped by Waite's home for a social visit. He drank a large amount of alcohol and, after becoming highly intoxicated, either fell asleep or passed out. Between 1:30 a.m. and 4:00 a.m. the next morning, he awoke and drove away in Waite's car rather than his own. The keys had been left in Waite's car and Bankston did not seek permission before he took his friend's car. Although he had never been told that he could not drive Waite's car, he had never been told that he could. He had never driven or borrowed Waite's car before. Shortly after taking Waite's car, he collided with Samples. At the time of the collision, Bankston's blood-alcohol level was .13 percent and he pled guilty to a charge of driving under the influence. Waite swore out a warrant against Bankston for automobile theft.
Notwithstanding this undisputed evidence, Samples urges that a genuine issue of material fact remains as to whether Bankston had a reasonable belief in his entitlement to take and drive Waite's car. Samples relies upon an affidavit wherein Bankston averred that he and Waite had
Bankston's affidavit may be sufficient to show that he unilaterally assumed that he was in fact entitled to drive...
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