St. Paul Fire & Marine Ins. Co. v. Davidson, 56406

• Decision Date: 14 November 1978
• Docket Number: No. 56406,56406
• Citation: 148 Ga.App. 82,251 S.E.2d 32
• Court: Georgia Court of Appeals
• Parties: ST. PAUL FIRE & MARINE INSURANCE COMPANY v. DAVIDSON et al.

Page 32

251 S.E.2d 32

148 Ga.App. 82

ST. PAUL FIRE & MARINE INSURANCE COMPANY v. DAVIDSON et al.

No. 56406.

Court of Appeals of Georgia.

Argued Sept. 19, 1978.

Decided Oct. 18, 1978.

Rehearing Denied Nov. 14, 1978.

Troutman, Sanders, Lockerman & Ashmore, Robert L. Pennington, Daniel S. Reinhardt, Atlanta, for appellant.

Bates, Baum & Landey, Beverly B. Bates, Swift, Currie, McGhee & Hiers, Glover McGhee, Nall, Miller & Cadenhead, James W. Dorsey, James C. Gaulden, Jr., Atlanta, for appellees.

BIRDSONG, Judge.

Mrs. Davidson brought suit against the appellant, St. Paul Fire & Marine Ins. Co., alleging that appellant's negligence had caused the death of her husband. The trial court overruled appellant's motion for summary judgment, and this court granted appellant's application for interlocutory appeal. Held:

1. The uncontroverted facts show that appellant issued a liability insurance policy to Atlantic Moving & Storage, Inc. ("Atlantic") which covered, inter alia, vehicles owned by Atlantic. Mrs. Davidson's husband ("deceased") while traveling in a vehicle owned by Atlantic, was killed when the vehicle struck a bridge abutment, allegedly as a result of defective tires. The vehicle in which the deceased died was at the time of his death traveling interstate under a lease agreement between Atlantic and North American Van Lines ("North American"), under a valid certificate of public convenience and necessity issued to North American by the Interstate Commerce Commission ("ICC").

Additional uncontroverted facts showed that North American requested Atlantic to have regularly inspected all of its vehicles traveling under the ICC certificate, including the vehicle in which deceased died. All such vehicles were in fact inspected by entities which specialized in truck inspection and maintenance and were approved by North American. The appellant was not such an approved inspection entity.

Finally, the facts showed that, prior to the accident in which deceased died, appellant gratuitously inspected on one occasion those vehicles actually present on Atlantic's premises. The insurance contract did not require this inspection, which appellant's agent stated was performed "for the purpose of providing information . . . required for underwriting purposes . . . No request was made for all vehicles owned by Atlantic or insured by (appellant) to be present, nor was there a request for any specific vehicles to be viewed." The vehicle in which the deceased died was not on the premises at the time of appellant's inspection and was therefore "not viewed at any time by anyone from (appellant)." The president of Atlantic stated: "At no time did Atlantic consider or rely upon the survey conducted by (appellant) in July, 1973, of any of the vehicles which may have been viewed by (appellant) to be the equivalent of, or to be used in lieu of, inspection by an approved entity requested by North American Van Lines or required by any governmental regulation, statute, or requirement of any kind." Similarly, the record is devoid of any evidence, or even an allegation, that the deceased relied upon appellant to inspect Atlantic's vehicles. Nevertheless, appellee contends that appellant owed the deceased the duty of performing regular safety inspections of Atlantic's vehicles, and negligently failed to perform this duty.

2....