HAULERS INS. CO.
MILLER, P. J., DOYLE, P. J., and REESE, J.
Miller, Presiding Judge.
Mell Davenport was injured while parking his car when the
driver in the adjacent space opened his car door in
Davenport's path and the two collided. Davenport sued the
other driver and served his own uninsured motorist carrier,
Haulers Insurance Company ("Haulers"), under OCGA
§ 33-7-11 (d). Haulers answered in its own name and
moved for summary judgment on the ground that its policy
excluded coverage because Davenport had been operating his
vehicle as a public or livery conveyance at the time of the
accident. The trial court denied the motion for summary
judgment and granted a certificate of immediate review, and
this interlocutory appeal followed. After a thorough review
of the record, we conclude that the evidence shows that
Davenport was not operating his vehicle as a public or livery
conveyance, and, therefore, Haulers was not entitled to
summary judgment. Accordingly, we affirm.
review a grant or denial of summary judgment de novo,
constru[ing] the evidence in the light most favorable to the
nonmovant." (Citation omitted.) Corrugated
Replacements, Inc. v. Johnson, 340 Ga.App. 364, 365 (797
S.E.2d 238) (2017). 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. OCGA § 9-11-56 (c).
viewed, the record shows that on August 10, 2011, Maggie
Billings was walking to town when Davenport saw her and
offered her a ride. Billings lived in the same neighborhood
as Davenport, and she would occasionally ask Davenport to
drive her into town, which he would agree to do "if [he]
fe[lt] like it." Davenport did not have a meter in his
car and did not drive Billings every time she asked. When he
did drive her into town, Billings would pay him approximately
$7 for the three-mile ride. On the day of the accident,
Billings did not ask Davenport for a ride; instead, Davenport
offered to drive her. Although Billings expected to pay him,
there is no evidence in the record that she ever paid him for
this ride. Nor is there any evidence in the record that
Davenport offered paid rides to the general public.
day of the accident, as Davenport pulled into a parking space
at the post office, the driver in the adjacent parking space
opened his car door into Davenport's path. At the sound
of impact with the other car, Davenport jerked his head
around to see what had happened and injured his neck doing
so. Davenport was insured through Haulers, and his policy
included uninsured motorist coverage. This policy, however,
excluded coverage for damage and injuries resulting when the
insured's car "is being used as a public or livery
sued the driver of the other car and served a copy of the
complaint on Haulers as his uninsured motorist carrier.
Haulers moved for summary judgment on the ground that the
above exclusion applied. The trial court denied Haulers'
motion for summary judgment, finding that there was the
"slightest doubt as to the facts, " and that there
was a genuine issue of fact as to whether Davenport was
operating his vehicle for hire at the time of the accident.
related enumerations of error, Haulers argues that the trial
court erred in denying summary judgment because it applied
the wrong standard in ruling on the motion and overlooked
Davenport's failure to defend the motion with admissible
evidence. We disagree.
Before considering the merits of the coverage issue, we first
address Haulers' claim that the trial court applied the
wrong standard and failed to hold Davenport to his burden at
the summary judgment stage.
whether the trial court applied the wrong standard, we review
the record de novo. Zurich American Ins. Co. v. Omni
Health Solutions, LLC., 332 Ga.App. 723 (774 S.E.2d 782)
(2015). Applying this standard of review, we conclude that
this argument provides no basis for reversal.
both parties rely solely on Billings's deposition, and
this is not contradictory evidence. Because the question of
whether the public or livery conveyance policy exclusion
applies is a legal determination, the record before us is
sufficient. We therefore turn to the merits of the
insurance policy is a contract. State Farm Fire &
Cas. Co. v. Bauman, 313 Ga.App. 771, 773 (723 S.E.2d 1)
(2012). "Construction and interpretation of a contract
are matters of law for the court;" therefore, the
interpretation of the exclusion at issue here is a question
of law that we may decide. (Citation omitted.) Zurich
American Ins. Co., supra, 332 Ga.App. at 723.
"Where the insurer seeks to invoke an exclusion
contained in its policy, it has the burden of proving the
facts come within the exclusion." (Citations omitted.)
Interstate Life & Accident Ins. Co. v.
Wilmont, 123 Ga.App. 337 (1) (180 S.E.2d 913)
Court must construe an insurance contract using ordinary
rules of contract construction. State Farm Fire &
Cas. Co., supra, 313 Ga.App. at 773.
[T]he parties to an insurance policy are bound by its plain
and unambiguous terms. Thus, when faced with a conflict over
coverage, a trial court must first determine, as a matter of
law, whether the relevant policy language is ambiguous. . . .
If a policy ...