U.S. Fidelity & Guar. Co. v. Park 'N Go of Ga., Inc., 94-8989

Decision Date10 October 1995
Docket NumberNo. 94-8989,94-8989
Citation66 F.3d 273
PartiesUNITED STATES FIDELITY & GUARANTY COMPANY, Plaintiff-Appellee, v. PARK 'N GO OF GA., INC., Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

C. David Johnston, Adam J. Conti, Wagner & Johnston, P.C., Atlanta, GA, for appellant.

Ben Kingree, III, Kenton Jones Coppage, Carter & Ansley, Atlanta, GA, for appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before HATCHETT and EDMONDSON, Circuit Judges, and GIBSON *, Senior Circuit Judge.

PER CURIAM:

Park 'N Go appeals the district court's grant of summary judgment in favor of United States Fidelity & Guaranty in this declaratory judgment action. Because resolution of this case involves questions of Georgia law which are dispositive but unanswered by the precedent of the Supreme Court of Georgia, we defer our decision in this case pending certification of the following question to the

Supreme Court of Georgia pursuant to GA. CONST. art. VI, Sec. 6, para. 4, O.C.G.A. Sec. 15-2-9, and Rule 37 of the Supreme Court of Georgia. See Polston v. Boomershine Pontiac-GMC Truck, Inc., 952 F.2d 1304 (11th Cir.1992). We submit the following facts and analysis for consideration by the Supreme Court of Georgia.

CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF GEORGIA PURSUANT TO ARTICLE VI SECTION VI PARAGRAPH IV OF THE GEORGIA CONSTITUTION.

TO THE SUPREME COURT OF GEORGIA AND THE HONORABLE JUSTICES THEREOF.

STYLE OF THE CASE

The case is styled this way: Park 'N Go of Georgia, Inc., Appellant, versus United States Fidelity and Guaranty Company, Appellee, Case No. 94-8989, filed in the United States Court of Appeals for the Eleventh Circuit, on appeal from the United States District Court for the Northern District of Georgia.

FACTS

Park 'N Go of Georgia, Inc., is a Georgia corporation that operates a parking/shuttle service near Atlanta Hartsfield International Airport. The parking facility consists of a 13-acre parking lot surrounded by a fence six or seven feet high. An office building and entrance and exit gates are located at the front of the lot. Park 'N Go operates with a limited staff and without a security system or security personnel.

To enter the parking facility, a customer drives his vehicle up to a ticket machine located at the entrance gate and takes a bar-coded ticket stamped with the date and time of entry. The customer then drives into the parking lot, finds a parking space, parks and locks his vehicle, and takes the keys with him. An airport shuttle takes the customer to the appropriate airport terminal. No other way exists for a customer lawfully to enter the Park 'N Go lot.

Upon returning, a Park 'N Go shuttle transports the customer from the terminal to the place where his vehicle is parked. To leave the parking facility, the customer drives his vehicle up to a cashier's window located next to the exit lane, presents the bar-coded ticket, and pays the amount calculated by a fee computer. This contact is normally the only interaction a customer has with a Park 'N Go employee. The customer then exits the facility. No other way exists for a customer lawfully to leave the Park 'N Go lot.

In 1991, Park 'N Go contracted with United States Fidelity & Guaranty Co. ("USF & G") to insure Park 'N Go's business. USF & G issued Policy No. 1MP1334231140 effective until November 1992. The policy included several kinds of coverage. Portions of the policy at issue in this case include: (1) the Garage Coverage Part--Liability Coverage with a liability limit of $1 million, (2) the Garage Coverage Part--Garage Keepers Coverage with a liability limit of $250,000, and (3) the Commercial General Liability Coverage with a liability limit of $1 million.

While this policy was in effect, torrential rains fell in the Atlanta metropolitan area, and the Park 'N Go parking lot was flooded. Over 200 automobiles parked in the lot were damaged. A group of Park 'N Go's patrons filed in the state court in Fulton County, Georgia, a class action suit against Park 'N Go, alleging that a bailment relationship existed, alleging that Park 'N Go was negligent, and seeking to recover for damages to their vehicles caused by the flooding.

USF & G then filed in the United States District Court a declaratory judgment action against Park 'N Go on the insurer's obligations under the insurance policy. Park 'N Go answered the complaint, disputing USF & G's interpretation of the contract. USF & G then moved for summary judgment, asserting that its obligation was limited to $250,000 as stated in the Garage Keepers Coverage portion of the policy, instead of the $1 million limit provided in the Garage Liability Coverage and the Commercial General Liability Coverage portions of the policy.

The district court granted USF & G's Motion for Summary Judgment. The court concluded that "because the autos parked and damaged in defendant's lot were necessarily in the 'care' of defendant, that provision of the policy excluding from coverage personal property in the 'care, custody or control' of the insured applies." The district court noted that Georgia law is unclear on the issue of bailment and unclear on whether a disclaimer on the ticket to park is valid; but the court still concluded that a bailment relationship existed between Park 'N Go and its patrons and concluded that "the mere existence of a printed disclaimer on the parking ticket does not operate to rebut the statutory presumption of a bailment relationship between the defendant and its patrons."

ARGUMENTS PRESENTED
A. Whether a Bailment Relationship Existed:

Park 'N Go argues that the Garage Liability and Commercial Liability Coverage provisions of the policy cover the damages caused to its patrons' vehicles as a result of the flooding, and Park 'N Go says that the exclusion from those provisions for vehicles within Park 'N Go's "care, custody or control" does not apply because those vehicles were not within Park 'N Go's "care, custody or control," particularly considering that no bailment relationship existed.

In concluding that the vehicles were in Park 'N Go's "care, custody or control," the district court considered (1) the specific terms of the insurance policy and (2) Georgia law on the issues of bailment and disclaimer. First, the court noted that the Garage Keepers portion of the policy provided coverage for covered autos left in the insured's care while the insured is " 'attending, servicing, repairing, parking or storing it in [its] garage operations.' " From this, the district court concluded that, whenever the insured is parking or storing an auto, the auto necessarily is in the care of the insured, and the "care" component of the "care, custody or control" exclusion is met.

Second, the district court concluded that if the terms of the contract itself did not sufficiently define the terms, Georgia law of bailment would apply to give meaning to the phrase "care, custody or control." The court noted that, although the law of bailment is not absolutely clear on the question, Georgia statutory law provides that "[t]he relationship of the owner of an automobile and the owner of the garage in which the automobile is stored is that of bailor and bailee." See O.C.G.A. Sec. 44-12-77 (1982).

The district court rejected Park 'N Go's argument that its parking facility was not sufficiently similar to an enclosed garage for the statutory presumption of a bailment relationship created by section 44-12-17 to apply. Instead, the court noted that nothing in the language of the statute indicated that a distinction should be made between parking structures and parking lots and that the cases decided under the statute did not distinguish between parking facilities that are buildings and those which are enclosed lots. See generally, Goodyear Clearwater Mills v. Wheeler, 77 Ga.App. 570, 49 S.E.2d 184 (1948). The district court therefore, concluded that Park 'N Go was a bailee and again concluded that the vehicles parked in the lot were in Park 'N Go's care, custody, or control.

Park 'N Go argues that section 44-12-17 applies only to "garages" and is inapplicable to a parking facility where a patron self-parks in an open setting. Park 'N Go also asserts that it made no representation about the standard of care it would provide for the vehicles parked in its lot, that it provided no security system or personnel, and that it had no control over the vehicles because the vehicles were locked, and the keys were in the custody and control of the owners. Park 'N Go contends that, because the law of Georgia is unsettled on this issue, the question should be certified to the Georgia Supreme Court for resolution.

USF & G responds that nothing is ambiguous in the exclusion for property in the "care, custody or control" of the insured and that the phrase must be given the plain and ordinary meaning of the terms used. USF & G contends that Park 'N Go exercised care, custody, or control over the vehicles parked in its facility by limiting access to them with While it may possibly be true that the phrase "care, custody or control" itself presents no ambiguity in definition, whether the relationship between Park 'N Go and its patrons falls within that definition--which might be, as the district court noted, synonymous with the concept of bailment as it has been developed in the Georgia state courts--does appear not to have been settled by presently existing Georgia law. The state law on the issue of bailment involved in this case is unclear. We agree that it would be best for the Supreme Court of Georgia to first address the questions of whether or not a bailment relationship existed and to what extent, if any, the law of bailment determines whether the $250,000 limit applies.

a six to seven feet high fence that enclosed the facility and by requiring that those who attempted to leave the facility...

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