United States District Court, S.D. Georgia
LISA GODBEY WOOD, JUDGE
matter comes before the Court on Petitioner Progressive
Mountain Insurance Company's ("Progressive")
Motion for Summary Judgment. Dkt. No. 44. Respondents failed
to respond. (And the deadline to do so has passed.) This
Motion is ripe for review. For the following reasons, this
Motion is GRANTED.
Ricky McCallister had a vehicle collision on March 2, 2016
("the collision"). Progressive had previously
issued him an automobile insurance policy ("the
Policy"). Dkt. No. 44-3. This case presents the question
of Progressive's insurance obligation to McCallister.
McCallister ("McCallister") was doing subcontract
work for Pierce County Auto as a mechanic on March 2, 2016.
Dkt. No. 44-4 12:12-13:8; 15:14-18. McCallister performed the
work through his business, Best Bet Auto Repair ("Best
Bet"). Id. 18:18-25; 19:11-22. The arrangement
was as follows: if Pierce County Auto ("the repair
shop") needed a vehicle repaired, McCallister would
repair it, and Pierce County Auto would make payment to Best
Bet. Id. 19:11-22.
to this arrangement, McCallister was assigned the job of
repairing Respondent Jack Williams' 1997 Camaro Z28
("the Camaro"). Id. 24:2-6. Several months
before the subject accident, the Camaro was brought into the
repair shop so the engine could be rebuilt, and the job was
assigned to McCallister. Id. 24:18-25; 25:1-8. After
McCallister finished rebuilding the engine but while it still
remained at the repair shop, the engine started leaking oil.
Id. 24:14-20; 25:13-18; 32:3-9. On March 2, 2016,
McCallister performed more engine repairs, planning to repair
and reseal the engine and take it for a test drive.
Id. Mr. McCallister's wife, Nikki McCallister,
arrived at the repair shop that same day to go to lunch with
her husband. Id. 27:16-25. So that he could give the
Camaro a test drive, Mr. McCallister decided to drive it to
lunch. Id. Specifically, he testified that he test
drove the Camaro to lunch in order "to make sure it
wasn't going to leak." Id. 27:21-22.
test driving the car to lunch with his wife, McCallister
caused a collision with the rear of a Ford E-350 Super Duty,
driven by Respondent Cynthia Evans and owned by Respondent
Easter Seals of Southern Georgia. Dkt. No. 44-5; Dkt. Nos.
1/5 ¶¶ 17-18. The initial collision caused the
Camaro to leave the roadway, travel through a ditch, and
collide with an unoccupied vehicle, a 2008 Dodge Avenger
owned by Respondent Deborah Barnard, that was parked in a
private driveway. Dkt. No. 44-5.
filed the present action on October 12, 2016, seeking a
declaration from the Court regarding its duty to provide
coverage, medical payments, indemnification, or a defense for
the bodily injury and property damage claims related to the
March 2, 2016 collision. Dkt. No. 1.
Policy provides insurance coverage for liability to others,
collision, and medical payments coverage. The liability
coverage includes "damages for bodily injury and
property damage for which an'insured person becomes
legally responsible because of an accident." Dkt. No.
44-3, p. 3. The medical payments coverage includes "the
reasonable expenses incurred for necessary medical services
received within three years from the date of a motor vehicle
accident because of bodily injury." Id., p. 7.
The collision coverage includes sudden, direct, and
accidental loss to a covered auto or a "non-owned
auto" defined as an "auto that is not owned by or
furnished or available for the regular use of you, a
relative, or a rated resident while in the custody of or
being operated by you, a relative, or a rated resident with
the permission of the owner of the auto or the person in
lawful possession of the auto." Id., p. 17, 20.
three types of coverage have an auto business exclusion.
Specifically, the liability coverage excludes from coverage
"bodily injury or property damage arising out of an
accident involving any vehicle while being maintained or used
by a person while employed or engaged in any auto business.
This exclusion does not apply to you . . . when using a
covered auto." Id., p. 4. The medical payment
coverage has the exact same exclusion-that is, it does not
apply to "bodily injury arising out of an accident
involving a vehicle while being maintained or used by a
person while employed or engaged in any auto business. This
exclusion does not apply to you . . . when using a covered
auto." Id., p. 8. The collision coverage has a
similar exclusion. It does not apply for loss "to a
non-owned auto while being maintained or used by a person
while employed or engaged in any auto business."
Id., p. 17. (It does not have the additional
language limiting the exclusion shared by the liability and
medical payments exclusions for auto business.) All three
define "auto business" to mean the business of
selling, leasing, repairing, parking, storing, servicing,
delivering or testing vehicles. Id., p. 1.
judgment is required where "the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). A fact is "material" if it
"might affect the outcome of the suit under the
governing law." FindWhat Inv' r Grp. v.
FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). A dispute is "genuine" if the
"evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Id. In making
this determination, the court is to view all of the evidence
in the light most favorable to the nonmoving party and draw