Southern Guaranty Ins. Co. v. Duncan
| Decision Date | 09 May 1974 |
| Docket Number | No. 49265,No. 1,49265,1 |
| Parties | SOUTHERN GUARANTY INSURANCE COMPANY v. Kenneth S. DUNCAN et al |
| Court | Georgia Court of Appeals |
Ross & Finch, A. Russell Blank, Atlanta, for appellant.
Lokey & Bowden, Glenn Frick, Atlanta, for appellees.
Syllabus Opinion by the Court
This marks the second appearance of this declaratory judgment action which was instituted by Southern Guaranty Insurance Co. on a standard homeowners policy to determine if coverage existed under a factual situation which is indeed esoteric in nature. The respondent parties named as defendants are the insured and his 16-year-old neighbor who had filed suit against the insured for injuries claimed to have been received while on the insured's premises.
On its previous appearance (Southern Guaranty Insurance Co. v. Duncan, 129 Ga.App. 632, 200 S.E.2d 483) this court was required to remand a ruling adverse to the insurer in order for the trial judge to make findings of fact and conclusions of law under the mandate of Code Ann. § 81A-152. Such review has now resulted in the court below reiterating that coverage exists. Once again the insurer has taken an appeal.
The findings of fact state the youngster is alleged to have been injured as the result of a piece of metal being projected into his eye because of the negligence of the homeowner while removing a steering wheel from an automobile on the insured's premises. We supplement these factual findings from the insured's deposition.
The insured testified he had been an auto mechanic for eleven years; that at the time of the alleged accident he was employed as a mechanic by a Newnan automobile dealer for whom he had worked for five years. (R. 55, 34). He further deposed that between the time he purchased the race car chassis in the summer of 1970 and the time of the alleged injury (approximately one year later) he raced the car about twelve times in Senora and Douglasville (R. 36, 37); that prize money was offered in these races regardless of whether or not the driver placed; and that he paid another individual to drive the car in some of the races. (R. 44). He further testified that the chassis (to which he subsequently added an engine and roll bars) had never had a vehicle registration or license tag during his ownership and had not since his purchase ever been driven on the highway under its own power, the transportation to and from the race tracks being by a trailer.
The insurer's denial of coverage was based upon two exclusion clauses in the policy. The first (1a) reads: 'This policy does not apply: . . . a. to bodily injury . . . arising out of the ownership, maintenance, operation, use, loading or unloading of: . . . (2) any motor vehicle owned or operated by, or rented or loaned to any insured; but this subdivision (2) does not apply to bodily injury or property damage occurring on the residence premises if the motor vehicle is not subject to motor vehicle registration because it is used exclusively on the residence premises or kept in dead storage on the residence premises . . .' The second exclusion clause (1d) states the policy does not apply 'to bodily injury or property damage arising out of business pursuits of any insured except activities therein which are ordinarily incident to non-business pursuits.'
As to the motor vehicle exclusion, the thrust of insurer's argument is that since the accident allegedly resulted from maintenance of an automobile which was neither 'used exclusively' nor 'kept in dead storage on the residence premises,' exclusion 1a(2) is applicable. As to the 'business pursuit' exclusion insurer asserts that having entered his automobile in various prize money races, and having occasionally paid another to drive the car in those races, insured was...
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