Smith v. Southeastern Fidelity Ins. Co.
| Decision Date | 25 February 1988 |
| Docket Number | No. 44245,44245 |
| Citation | 365 S.E.2d 105,258 Ga. 15 |
| Parties | SMITH v. SOUTHEASTERN FIDELITY INSURANCE CO. |
| Court | Georgia Supreme Court |
Gerry E. Holmes, Mundy & Gammage, Cedartown, for Bessie Mae Smith, admrx.
J. Clinton Sumner, Jr., Sidney P. Wright, Rogers, MacGruder, Hoyt, Sumner & Brinson, Rome, for Southeastern Fidelity Ins. Co.
We granted certiorari in Smith v. Southeastern Fidelity Insurance Company, 181 Ga.App. 316, 352 S.E.2d 407 (1986), to consider the holding of the Court of Appeals in light of recent decisions by this Court. We reverse.
On October 9, 1981, James Lasker Smith, while making deliveries as he operated his employer's tractor-trailer, was involved in a one-vehicle accident in Louisiana. Not thinking he was hurt, Smith sought no medical attention; he completed his delivery and returned home. One week later, Smith was admitted to the hospital after he experienced pain and felt no pulse in his leg. He had a history of chronic arterial and pulmonary disease, and on October 17, 1981, he had to have an emergency revision of a previous aortofemoral by-pass graft. He suffered complications from the surgery, including pneumonia. Following five weeks in intensive care, he died on November 25, 1981. The appellee, Southeastern Fidelity Insurance Co., was notified of the accident in January 1982.
In October, 1984, the appellant, the deceased's wife, sought no-fault benefits under a personal insurance policy issued to her husband by the appellee. After discovery, the appellee moved for summary judgment. The trial court sustained the motion on the grounds that: (1) Smith's death was not the result of an "insured event"; (2) he had rejected optional PIP; (3) the appellant failed to provide timely notice as the policy required; (4) and the policy excluded coverage under the circumstances.
The Court of Appeals held that it only needed to decide the issue of the policy exclusion to resolve the case. The exclusion stated, "[i]n consideration of the premium charged, insurance is not afforded by this policy: (a) when a vehicle is being driven, operated or manipulated by any person who is driving, operating or manipulating for wholesale or retail transport or delivery of goods, merchandise, or other materials in connection with any business or enterprise."
1. The exclusion in this case, like the one in Southeastern Fidelity Insurance Co. v. Johnson, 256 Ga. 713, 352 S.E.2d 760 (1987), excludes from coverage job related activities performed while "Occupying" or "Operating" a "Motor vehicle" as these terms are defined in OCGA § 33-34-2. Nevertheless, OCGA § 33-34-7(a)(1) provides for the payment of no-fault benefits for accidental bodily injury sustained while occupying any motor vehicle. "All policies of motor vehicle liability insurance issued in this state must be in accordance with the requirements of this chapter; and no insurer shall issue a policy ... that does not contain at least the minimum coverage required under this chapter." OCGA § 33-34-3(a)(1). Thus, the policy exclusion in this case, as in Southeastern Fidelity Insurance Co. v. Johnson, supra, is unenforceable because, if allowed to be effective, it would reduce the coverage below the minimum required by the...
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