Opinion
45608.
ARGUED SEPTEMBER 16, 1970.
DECIDED OCTOBER 7, 1970.
Action on insurance policy. Baldwin Superior Court. Before Judge Carpenter.
Martin, Snow, Grant Napier, Cubbedge Snow, Cubbedge Snow, Jr., for appellant.
Frank O. Evans, for appellee.
The purpose of a "temporary substitute" clause in an automobile liability insurance policy is to afford continuous coverage to the insured while limiting the risk to one operating vehicle at a time for a single premium. Therefore, the vehicle for which the substitution is made must be withdrawn from normal use by some overt act which would reasonably preclude the possibility of both vehicles being driven at the same time.
ARGUED SEPTEMBER 16, 1970 — DECIDED OCTOBER 7, 1970.
In a suit for the unpaid balance of a judgment, defendant insurer appeals from a summary judgment for plaintiff and from the denial of its motion for summary judgment.
State Farm carried the insurance on two automobiles owned separately by a mother and daughter living together. The daughter was driving her mother's automobile at the time of the collision for which the plaintiff here later sued and obtained judgment. State Farm paid the limits of the policy on the mother's car (which was less than the amount of the judgment). Plaintiff brought this action on the daughter's policy for the unpaid balance, alleging that she was driving her mother's car as a temporary substitute for her own and was therefore within the policy's coverage.
The applicable section of the policy reads: "Temporary substitute automobile means an automobile not owned by the named insured while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction."
The daughter's deposition shows: that she had over a 50-mile round trip to work; that it was very cold on the day of the collision; that the heater of her own car had not been working for at least 10 days and also an air vent was jammed open; that she took her mother's car to work that day because it would be warmer; that, with the exception of the heater and vent, her own car was in perfectly good operating condition (in fact she drove it two more weeks before the heater was finally repaired); that it was parked in the yard of her home the day of the collision; and that her mother had a set of keys and could have used it anytime during the day. There is no evidence the mother used the car, however.
The trial court found that the daughter was driving a temporary substitute automobile because her own was withdrawn from the normal use of transporting her to work; that the non-operating heater and damaged vent constituted a breakdown; and that as a matter of law, plaintiff was entitled to recover. Both parties stipulate there is no genuine issue of material fact and the sole question in this appeal is one of law.
State Farm contends that under the terms of the policy, in order for the mother's car to be a temporary substitute two things must be shown: first, that the daughter's car was withdrawn from normal use, and second, that the withdrawal was because of its breakdown. It further contends that neither of these conditions was met, and as a matter of law, the mother's vehicle could not be considered a temporary substitute.
There appears to be no Georgia case construing the phrase "withdrawn from normal use." Other jurisdictions have decided the question variously. "Withdrawal of the truck from normal use necessitated its withdrawal from all normal use." Erickson v. Genisot, 322 Mich. 303 ( 33 N.W.2d 803). See also Service Mut. Ins. Co. v. Chambers, (Texas). 289 S.W.2d 949 and Fullilove v. U.S. Casualty Co. of N. Y., 240 La. 859 ( 125 So.2d 389). On the other hand, several other jurisdictions allow the "disabled" automobile to be used to some extent and for some purposes during the substitution period. See Mid-Continent Cas. Co. v. West, (Okla.) 351 P.2d 398; Canal Ins. Co. v. Paul, (Tenn.) 369 S.W.2d 393; Nelson v. St. Paul Mercury Ins. Co., 83 S.D. 32 ( 153 N.W.2d 397).
We cannot even determine whether there is a "majority view" on the subject, and the leading treatises on insurance express no preference. We believe the key to construction lies in the purpose of the temporary substitute provision. This court has held that "The purpose is not to defeat liability but reasonably to define coverage by limiting the risk to one operating vehicle at a time for a single premium." Hemphill v. Home Ins. Co., 121 Ga. App. 323, 333 ( 174 S.E.2d 251).
Therefore, if a vehicle is operable, the owner must take some step to preclude its use by another during the substitution period or there will be a material increase in the risk contemplated by the insurer. "If the vehicle insured can be operated, some overt act is required to prove its withdrawal from service, although this would not necessarily require its being garaged." 7 Appleman 95, § 4293.5 citing Lewis v. Bradley, 7 Wis.2d 586 ( 97 N.W.2d 408). There was no such act here. The daughter stated that the mother could have used the car at any time since she had both a set of keys and implied permission. The fact that the mother did not actually have occasion to go out does not alter the basic fact that the car was not withdrawn from normal use (which, in a passenger vehicle, would include local driving as well as a long trip to work) and that coverage of the risk remained on this automobile under the daughter's policy.
The question of what constitutes a breakdown has received less attention, but such conditions as being low on gasoline, having on snow chains during good weather, having no hood, or being less suitable or convenient for the contemplated trip have been held not to be breakdowns. On the other hand, badly worn tires have been held to be the equivalent of the automobile's breakdown. See the collected cases in 34 ALR2d 938, 949, § 18 and Later Case Service. We believe the phrase "its breakdown" means either a condition rendering the vehicle inoperable or one which would make its use dangerous, as opposed to a breakdown of a non-essential component. Neither of these conditions was present here. The daughter's car was in good operating condition, and while the lack of a heater made it uncomfortable and inconvenient for a long trip, it certainly did not make it dangerous.
The trial court erred in finding that this car had been withdrawn from normal use because of its breakdown and in granting summary judgment of plaintiff.
The evidence demands the opposite finding: that, as a matter of law, the mother's car was not a temporary substitute as contemplated by the terms of the policy and that defendant is entitled to summary judgment.
Judgment reversed. Deen and Evans, JJ., concur.