Southern Guar. Ins. Co. v. Morris

• Decision Date: 04 October 1982
• Docket Number: Civ. A. No. 82-39.
• Citation: 565 F. Supp. 225
• Parties: SOUTHERN GUARANTY INSURANCE COMPANY v. Steve J. MORRIS.
• Court: U.S. District Court — Northern District of Georgia

565 F. Supp. 225

SOUTHERN GUARANTY INSURANCE COMPANY v. Steve J. MORRIS.

Civ. A. No. 82-39.

United States District Court, N.D. Georgia, Atlanta Division.

October 4, 1982.

Robert M. Darroch, Swift, Currie, McGhee & Hiers, Atlanta, Ga., for plaintiff.

W. Larue Boyce, Jr., Decatur, Ga., for defendant.

ORDER

ORINDA D. EVANS, District Judge.

Plaintiff Southern Guaranty Insurance Company ("SG") sold Defendant Morris an automobile insurance policy that provided no-fault coverage of $5,000. In 1981, Morris suffered an injury that exhausted his no-fault coverage. He then demanded that SG provide additional benefits, under the theory of Jones v. State Farm Mutual Automobile Insurance Co., 156 Ga.App. 230, 274 S.E.2d 623 (1980), cert. dismissed as improvidently granted, 248 Ga. 46, 280 S.E.2d 837 (1981). SG brought this action for a declaratory judgment that it is not liable to Morris for benefits beyond the $5,000 it has paid him. This action is before the Court on cross motions for summary judgment.

The Court finds the following material facts to be undisputed: Morris filled out an SG application for automobile insurance policy on or about November 11, 1980. The application specified no-fault coverage of $5,000, and SG therefore issued a policy that provided such coverage. This policy was in effect on September 28, 1981.

On September 27, 1981, Morris and some friends were in Florida on a pleasure trip.¹ Morris' vehicle, a Chevrolet C10 truck, broke down near Panama City. After trying unsuccessfully to diagnose the problem, Morris and his friends towed the truck to Dothan, Alabama, where a mechanic told them that the transmission governor was broken. They then towed the truck to a Chevrolet dealership in Eufaula, Alabama, arriving there on the morning of September 28. At some point, Morris and his friends had removed the truck's drive shaft and universal joint for purposes of towing the truck; they stored the universal joint behind the front seat, and the drive shaft in the back of the truck.

At the Eufaula dealership, Morris and his friends assisted a mechanic in positioning the truck on a hydraulic lift. Morris explained the problem, and the mechanic raised the truck on the lift and repaired it. Morris handed him some tools while he did the repair, and intended to assist him with the reinstallation of the drive shaft by holding it up while the mechanic reconnected it. When the transmission was fixed, the mechanic asked Morris and his friends to get the universal joint and drive shaft out of the truck so he could reinstall them. At this point, the lift was about two feet off the ground. Morris leaned into the cab of the truck to remove the universal joint from behind the seat. As he did so, the mechanic lowered the lift, which crushed Morris' left foot. At the moment he suffered the injury, Morris was "half way in the cab and half way out." Deposition of Steve J. Morris at 38.

Morris later filed a claim with SG under the no-fault provisions of his policy. SG paid him the entire $5,000 provided by his policy, but apparently his medical expenses and lost wages exceed this coverage. On November 9, 1981, his lawyer wrote SG and requested Morris' coverage be increased retroactively to $50,000, citing Jones. See Exhibit B to Complaint. SG responded by filing this action.

On the basis of these facts, SG contends that it is entitled to summary judgment for several reasons. Morris contends that he has accepted the "continuing offer" discussed in Jones, and Jones mandates summary judgment in his favor.

This is one of hundreds of cases filed in this Court in the wake of Jones. It differs from the other cases, however, because of the unusual manner in which Morris was injured; SG contends that this type of injury does not entitle Morris to no-fault benefits under Georgia law. If this is true, then the Court can avoid entering the Jones morass in this particular case. Therefore, the Court will begin by considering the scope of no-fault coverage under the no-fault law.

The relevant portion of Ga.Code Ann. § 56-3407b(a) requires an insurer to pay no-fault benefits for "accidental bodily injury sustained ... by the insured ... while occupying any motor vehicle." Ga.Code Ann. § 56-3402b(c) defines "accidental bodily injury" as "bodily injury ... arising out of the operation, maintenance or use of a motor vehicle...." Ga.Code Ann. § 56-3402b(h) defines "operation, maintenance or use of a motor vehicle" as "operation, maintenance or use of a motor vehicle as a vehicle," and expressly excludes from the definition "conduct within the course of a business of repairing, servicing or otherwise maintaining motor vehicles." Ga.Code Ann. § 56-3402b(i) defines "occupying" as "to be in or upon a motor vehicle or in the immediate act of entering into or alighting from the motor vehicle."

SG contends that the injuries suffered by Morris did not "arise out of the operation, maintenance or use of a motor vehicle," for two independent reasons. First, SG argues that the repair of an inoperable vehicle, while its engine is not running, does not qualify as the "operation, maintenance or use" of a motor vehicle. Second, SG contends that Morris was injured "in the course of a business of repairing, servicing or otherwise maintaining motor vehicles," and so the statute expressly excludes his injuries from its coverage.

The second argument is easily dismissed. No Georgia court has yet interpreted the statutory exclusion from no-fault coverage of "conduct in the course of a business of repairing, servicing or otherwise maintaining motor vehicles." Georgia courts have interpreted the phrase "operation, maintenance or use of a motor vehicle" on several occasions, however, and almost always apply it expansively. See discussion below. The Court believes that a Georgia court would hold that the legislature intended the "conduct in the course of a business of repairing" exclusion to apply only to injuries suffered by persons employed in the automobile repair business. Morris was not so employed, of course. While the fact that he rendered limited assistance to the mechanic is troublesome, the Court does not believe that a Georgia court would deprive Morris of the protection of the no-fault statute for this reason.

SG's argument that the statute does not cover injuries suffered during the repair of an inoperable vehicle is more interesting. In support of this argument, SG relies on Leverette v. Aetna Casualty & Surety Co., 157 Ga.App. 175, 276 S.E.2d 859 (1981). In Leverette, the Georgia Court of Appeals held that an insured who stood on his truck to pick plums was not engaged in the "use" of his truck within the meaning of Ga.Code Ann. §§ 56-3402b(c) and (h), and so the injuries he suffered when he fell were not covered by the no-fault statute. While it provides some guidance to the Court, Leverette does not dispose of this case for two reasons. First, it is not the "use" of Morris' truck that is at issue here, but its "maintenance"; certainly there is a closer connection between Morris' injuries and the "maintenance" of his truck than between Leverette's injuries and the "use" of his. Second, in several other opinions, the Georgia Court of Appeals has interpreted the phrase "use of a motor vehicle" quite broadly. See Jones v. Transamerica Insurance Co., 154 Ga.App. 408, 268 S.E.2d 444 (1980) (dicta indicating that death of insured from carbon monoxide poisoning while in garage with car with engine running is an injury resulting from "use of a motor vehicle" within meaning of section 56-3402b); Clinton v. National Indemnity Co., 153 Ga.App. 491, 265 S.E.2d 841 (1980) (dicta indicating that injury suffered by firefighter from thrashing fire hose is an injury resulting from "use" of the fire truck within the meaning of section 56-3402b); Southeastern Fidelity Insurance Co. v. Stevens, 142 Ga.App. 562, 236 S.E.2d 550 (1977) (death of passenger in truck from discharge of his own firearm when truck left smooth road for unpaved road is an injury resulting from "use or operation" of a motor vehicle within meaning of clause in policy); Hartford Accident & Indemnity Co. v. Booker, 140 Ga.App. 3, 230 S.E.2d 70 (1976) (injury suffered by garbage collector while 30 feet from truck while going to collect garbage is an injury resulting from the "use" of the garbage truck within the meaning of the uninsured motorist statute, Ga.Code Ann. § 56-407.1). In each of these cases, and in Leverette, the Court of Appeals has indicated that the question of whether an injury results from the "use" of a vehicle turns on the facts of each individual case.² The Court's task in...