Wilkinson v. Ga. Farm Bureau Mut. Ins. Co.

• Decision Date: 20 September 2019
• Docket Number: A19A1447
• Citation: 833 S.E.2d 579,351 Ga.App. 891
• Court: Georgia Court of Appeals
• Parties: WILKINSON et al. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.

351 Ga.App. 891

833 S.E.2d 579

WILKINSON et al.

v.GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.

A19A1447

Court of Appeals of Georgia.

September 20, 2019

Certiorari Denied May 4, 2020

Joyce Wilson Bergman, for Appellant.

James Bates Brannan Groover, Lee Malcolm Gillis Jr., Macon, for Appellee.

Miller, Presiding Judge.

Barbara Brown Wilkinson and Egbert Joseph Wilkinson appeal from the trial court's order granting Georgia Farm Bureau Mutual Insurance Company's ("GFB") motion for summary judgment, arguing that summary judgment was improper because the injuries sustained by Barbara from a traffic accident in a residential driveway were covered under GFB's homeowner's insurance policy. We conclude that the trial court erred in its determination that Barbara's injuries were excluded from coverage under GFB's homeowner's insurance policy, and we therefore reverse the trial court's grant of summary judgment.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. In reviewing a grant or denial of summary judgment, we owe no deference to the trial court's ruling and we review de novo both the evidence and the trial court's legal conclusions. Moreover, we construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. In doing so, we bear in mind that the party opposing summary judgment is not required to produce evidence demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact.

(Citations and punctuation omitted.) Swint v. Alphonse , 348 Ga. App. 199, 199–200, 820 S.E.2d 312 (2018).

So viewed, the record shows that Paul Buchanan and Egbert Wilkinson were friends and co-workers. On August 18, 2015, Buchanan purchased a 1994 Ford F350. Egbert asked Buchanan if he could "look at" the truck, and Buchanan agreed. According to Buchanan, the Wilkinsons were not going to test drive the truck but only wanted to look at the truck. On September 30, 2015, at approximately 8:30 p.m., Egbert and Barbara went to Buchanan's house to look at the truck. Buchanan drove the truck forward approximately eight feet from where it was parked in his driveway so that the Wilkinsons could walk around the vehicle to inspect it. The truck, which was still in front of Buchanan's garage in the driveway, was parked on an incline and facing the street. Buchanan turned the truck on, placed it in neutral, and set the emergency brake. As Egbert and Buchanan stood outside the truck conversing with each other, Barbara sat in the driver's seat of the truck. Barbara then exited the truck and spoke with Buchanan. As Buchanan and Barbara went to inspect the truck's engine, Buchanan told Barbara to pull the truck's "hood latch," and warned her to not pull the emergency brake. Barbara looked under the truck's dashboard, pulled the emergency brake, and the truck "took off," after which Buchanan saw her lying under the truck. According to Buchanan, Barbara had been holding on to the "door jamb" when she fell, and the truck rolled over Barbara's ankles as it traveled down the driveway. Buchanan ran after the truck, jumped inside, and stopped the truck. Barbara allegedly sustained multiple injuries, including an open fracture

of her left ankle, a right shoulder avulsion fracture, fractures of the tibia and fibula, and a left knee effusion.

The Wilkinsons filed suit against Buchanan, asserting claims for negligence, damages, and loss of consortium. GFB, Buchanan's homeowner's insurance company, filed a complaint for declaratory judgment to determine whether it was obligated to defend Buchanan in the Wilkinsons’ suit against him. Specifically, GFB sought declarations that (1) the policy issued to Buchanan does not provide coverage for bodily injuries caused by an intentional act; (2) the policy does not provide coverage for injuries which are reasonably expected or intended by the insured; (3) the policy does not provide coverage for Buchanan for losses arising out of any intentional or criminal act; (4) the policy excludes coverage for injuries arising out of or in connection with a business; and (5) the policy excludes coverage for injuries arising out of the ownership, maintenance, use, loading or unloading of motor vehicles.¹ The Wilkinsons counterclaimed, seeking a declaratory judgment that their claims raised in the separate civil action were covered under GFB's homeowner's policy.

GFB subsequently filed a motion for summary judgment, and the trial court granted GFB's motion. The trial court rejected GFB's claim that the policy excluded coverage for injuries arising out of a business transaction because it found that Buchanan was not in the business of selling or repairing vehicles. The trial court found, however, that the truck was in "use" at the time of the incident because "[t]he truck was being used ... to demonstrate its function and operability," "and that such use resulted in [Barbara]’s injuries." This appeal followed.

In their sole enumeration of error, the Wilkinsons argue that the trial court erred in granting summary judgment because the incident giving rise to Barbara's injury did not arise from the use of a motor vehicle. We agree.

It is axiomatic that

an insurance policy is simply a contract, the provisions of which should be construed as any other type of contract, and so, when the provisions of an insurance policy are clear and unambiguous, we attribute to those provisions their plain meaning. An insurer is entitled, of course, to define terms used in its insurance policies as it sees fit, and it may choose to define a term in an unusual and uncommon way. But unless the policy itself indicates that a term is used in an unusual sense, we attribute to that term its usual and common meaning.

(Citations and punctuation omitted.) Taylor Morrison Svcs. v. HDI-Gerling America Ins. Co. , 293 Ga. 456, 459-460 (1), 746 S.E.2d 587 (2013). "But if a contract is ambiguous, the court must apply the rules of contract construction to resolve the ambiguity. And contractual provisions are ambiguous when they are susceptible to more than one meaning, even if each meaning is logical and reasonable." (Citations and punctuation omitted; emphasis in original.) Auto-Owners Ins. Co. v. Neisler , 334 Ga. App. 284, 286 (1), 779 S.E.2d 55 (2015).

In cases of ambiguity, there are three well-known rules of contract construction that apply: (1) ambiguities are strictly construed against the insurer as the drafter; (2) exclusions from coverage the insurer seeks to invoke are strictly construed; and (3) the contract is to be read in accordance with the reasonable expectations of the insured when possible. Indeed, when a term of a policy of insurance is susceptible to two or more

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