Summary
In McBride, an automobile mechanic was involved in a collision while road testing an automobile owned by Allstate's insured.
Summary of this case from Phoenix Ins. Co. v. MortersOpinion
43362.
ARGUED JANUARY 11, 1968.
DECIDED APRIL 3, 1968.
Action on insurance policy. Polk Superior Court. Before Judge Winn.
Gambrell, Russell, Moye Killorin, Edward W. Killorin, George W. Hart, for appellant.
Mundy Gammage, E. Lamar Gammage, Jr., Henry A. Stewart, Sr., for appellees.
The court erred in denying the motion of Allstate Insurance Company for a summary judgment for the reason that the company was not liable on its policy which excluded all coverage on the automobile insured because it was used "in an automobile business" as more particularly defined in the policy as "the business of selling, repairing, servicing, storing or parking of automobiles." The automobile insured by Allstate in this case was being road tested by an independent contractor after the installation of a timing chain.
ARGUED JANUARY 11, 1968 — DECIDED APRIL 3, 1968.
Miss Grace McBride, as guardian of Mrs. Mary Ella McBride, sued Seals T. Miller in the City Court of Polk County, to recover damages for personal injuries to her ward allegedly resulting from a collision between an automobile being driven at the time by Miller, but owned by Mrs. Jeanette Russell. Mrs. Ella McBride was in an automobile owned by Miss Grace McBride at the time of the collision with the car driven by Miller. Miss McBride recovered a final judgment against Miller for $5,000. At the time of the collision Miller was road testing the automobile he was driving to check the success of repairs he had made thereon as a mechanic employed to make them. On the day of the collision Mrs. Jeanette Russell was the named insured in a policy of insurance issued by Allstate Insurance Company covering liability. On that date Miss Grace McBride was the named insured in a policy issued by United States Fidelity Guaranty Company in which uninsured motorist coverage was provided. The policy issued by Allstate to Mrs. Russell contains the following exclusion: "This Part 1 [Bodily injury and property damage coverage] does not apply to: . . . An owned automobile while used in an automobile business, but this exclusion does not apply to the named insured, a resident of the same household as the named insured, a partnership in which such named insured or resident is a partner, or any partner, agent or employee of such resident or partnership." This policy defines "automobile business" to mean: "(c) `automobile business' means the business of selling, repairing, servicing, storing or parking of automobiles." Upon her inability to recover her judgment against either insurance company, Miss McBride, as guardian, instituted a declaratory judgment action against the two insurance companies and Mrs. Russell to have declared which company was obligated to pay the judgment. Allstate filed a motion for a summary judgment supported by (1) the policy of insurance and (2) the depositions of Seals T. Miller which show that Miller was road testing Mrs. Russell's automobile after he had installed a timing chain therein. Allstate's motion for a summary judgment in its favor was denied, the judgment on the motion was certified for appeal and Allstate filed its appeal from that judgment.
The court erred in denying Allstate's motion for a summary judgment. The terms of the policy exclude from coverage of any kind "an owned automobile while used in an automobile business." What is more, the policy does not leave to conjecture what is meant by "automobile business." In this case it can not be denied that the vehicle of Mrs. Russell was being serviced at the time of the collision. Checking the results of the car's operation after the installation of a timing chain is certainly an integral part of the servicing done. If the installation was not satisfactory to Mr. Miller he would have had to correct it. His contract would not have been completed until he satisfied himself that his work was satisfactory. Miller was an independent contractor and not an agent of Mrs. Russell. Pressley v. Wilson, 116 Ga. App. 206 ( 156 S.E.2d 399). This court, by a two-judge decision, in Public Indem. Co. of Newark v. Yearwood, 50 Ga. App. 646 ( 179 S.E. 232) held that a much narrower provision precluded recovery. Even if that case could be said to be wrong for reasons given in the dissent filed by Judge Jenkins, it would not be a precedent for an affirmance of the judgment in this case because of the plain and unambiguous exclusion clause in the instant case. Karner v. Maynor (Okla.) 415 P.2d 998, followed Yearwood, supra, and cited cases from thirteen other jurisdictions. "The reason for refusing to extend insurance coverage to such persons and organizations is obvious. When the named insured places his automobile in custody of any person or organization operating an automobile sales agency, repair shop, service station, storage garage or public parking place, the insured has no knowledge as to who will be entrusted with the operation of his automobile while it is in the control of such person or organization. Since the risks involved in the operation of an automobile by the agents or employees of such businesses is great, the insurance company refuses to extend coverage to such persons or organizations." Dixie Automobile Ins. Corp. v. Mason (Fla.App.) 155 S.E.2d 172. Accord Nationwide Mutual Ins. Co. v. McAbee, 268 N.C. 326 ( 150 S.E.2d 496). The cases cited by appellee, United States Fidelity Guaranty Co., defining the words "used in an automobile business" are not relevant in this case because these words are already defined in the Allstate policy here involved. Even if we agreed with the conclusion reached in Pirkle v. American Liberty Ins. Co., U.S. District Court, Northern District of Georgia, Atlanta Division, #9148, filed December 14, 1965, 12 C.C.H., 1966, Automobile Cases, 5235, the facts in that case distinguish it from this one. The court there took the view that where an owner of an automobile took it to an automobile dealer for the purpose of trading it in on a new automobile and a salesman drove it off the premises for the purpose of having it appraised, such a mission was not in the automobile business. The main business of an automobile dealer is selling automobiles and if driving one to have it appraised for the purpose of determining how much to allow for it in a trade for a new automobile is not done in the automobile business, who can divine what the nature of the operation is?
The court erred in denying Allstate's motion for a summary judgment.
Judgment reversed. Eberhardt and Whitman, JJ., concur.