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Haulers Ins. Co. v. Davenport

Court of Appeals of Georgia, Second Division

February 2, 2018

HAULERS INS. CO.
v.
DAVENPORT

          MILLER, P. J., DOYLE, P. J., and REESE, J.

          Miller, Presiding Judge.

         Appellee 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.

         "We 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).

         So 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.

         On the 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 conveyance."

         Davenport 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.

         In two 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.

         1. 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.

         Pretermitting 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.

         Moreover, 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 parties' arguments.

         2.An 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) (1971).

         This 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 ...

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