A. Atlanta Autosave, Inc. v. Generali - U. S. Branch

514 S.E.2d 651, 270 Ga. 757, 99 Fulton County D. Rep. 1127, 1999 Ga. LEXIS 307
CourtSupreme Court of Georgia
DecidedMarch 19, 1999
DocketS98G0978
StatusPublished
Cited by11 cases

This text of 514 S.E.2d 651 (A. Atlanta Autosave, Inc. v. Generali - U. S. Branch) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A. Atlanta Autosave, Inc. v. Generali - U. S. Branch, 514 S.E.2d 651, 270 Ga. 757, 99 Fulton County D. Rep. 1127, 1999 Ga. LEXIS 307 (Ga. 1999).

Opinions

Hines, Justice.

We granted certiorari to the Court of Appeals to consider its decision in A. Atlanta AutoSave v. Generali U. S. Branch, 230 Ga. App. 887 (498 SE2d 278) (1998), an appeal in an action for declaratory judgment about the priority of insurance coverage for a rental vehicle involved in a collision. We affirm because the Court of Appeals correctly concluded that the car rental agency, AutoSave, could not avail itself of the exemption provided a U-drive-it owner under OCGA § 40-9-102,1 rendering its insurance for the rental car primary for coverage of the collision.

The facts are set forth in the Court of Appeals opinion. On January 12, 1995, A. Atlanta AutoSave rented a car to Cabey. Cabey’s companion, Roberts, was named in the rental agreement in the space provided for additional drivers, but she did not sign the contract. Cabey and Roberts both presented insurance information to the rental agent and manager, Haraka. Cabey produced an insurance card showing she had automobile liability coverage with Southern General Insurance Company through February 24, 1995. Roberts provided an insurance card showing she had automobile liability insurance with Generali — U. S. Branch through April 14, 1995. [758]*758Cabey’s insurance information was entered on the contract under “Renter’s Applicable Insurance.” Roberts’ insurance information was handwritten in the middle of the rental agreement under the heading “Local.” Haraka averred that he called INSURGEORGIA, the agent for both Cabey and Roberts, and verified that both policies were in effect and applied to the rental. However, Cabey’s policy had been canceled with Cabey’s consent about three weeks before.

While driving the car, Roberts was involved in a collision with a vehicle driven by Williams. Williams and her passenger, Jones, alleged they received injuries and filed claims for damages with Generali and AutoSave. Generali and AutoSave each contended that the other had primary coverage for any bodily injury claims arising from the collision.

Generali filed a declaratory judgment action naming AutoSave, Roberts, Jones, and Williams as defendants. Williams moved for summary judgment on the issue of priority of coverage between Generali and AutoSave, contending that Generali’s coverage was primary because Roberts was driving. Generali also filed a motion for summary judgment, arguing that it provided only excess coverage and that primary coverage from the subject collision was with AutoSave. The trial court granted Generali’s motion and denied Williams’ motion, effectively declaring AutoSave’s coverage primary.2

The Court of Appeals affirmed the grant of summary judgment to Generali, concluding that despite AutoSave’s attempted verification of coverage, AutoSave’s insurance must become primary under OCGA § 40-9-102. It found undisputedly that Cabey did not have insurance at the time of the rental, and that Roberts was not a party to the rental agreement.

1. The clear language of OCGA § 40-9-102 addresses itself to the renter of the vehicle, not the operator, authorized or not, inasmuch as the relationship with the rental agency is a matter of contract. Thus, even though Roberts could be liable in a tort action if she was at fault in the collision, the priority of liability coverage between the renter’s insurance carrier and the insurer of the rental vehicle is the issue here.

AutoSave asserts Roberts’ alleged intent to be a co-renter, and thus a party to the contract, citing the affidavit of Haraka, Auto-Save’s manager/rental agent. But such assertion based on intent found outside the contract is unavailing. The rental agreement is [759]*759unambiguous on its face that Cabey is the sole renting party; there is nothing in the agreement demonstrating that Roberts assented to its terms or intended to be bound by the contract. See OCGA § 13-3-1. If Roberts was intended to be a co-renter, nothing prevented AutoSave from indicating it in the rental agreement; there is no allegation of fraud, mistake, or accident. That the agreement listed Roberts’ address and insurance information specifically as the listed additional driver did not, as a matter of law or fact, transform her into a contracting party. Accordingly, the contract is not susceptible to variance by parol evidence. OCGA § 13-2-2 (1); American Cyanamid Co. v. Ring, 248 Ga. 673, 674 (286 SE2d 1) (1982).

The Court of Appeals correctly determined that driver Roberts was not a renter or co-renter under the agreement, and therefore not subject to the provisions of OCGA § 40-9-102. Compare Jones v. Wortham, 201 Ga. App. 668 (411 SE2d 716) (1991), in which the driver was also the lessee of the rental vehicle.

2. OCGA § 40-9-102 imposes upon the car rental agency the duty to verify that the renter has insurance for the rental, and if not, mandates the purchase of “spot” liability insurance prior to furnishing the vehicle. Alamo Rent-A-Car v. Hamilton, 216 Ga. App. 659, 660 (455 SE2d 366) (1995). The rental is to be insured, through either the renter’s own vehicle insurance policy if it would cover the rental situation or by the purchase of insurance coverage for the rental vehicle from the rental agency. Atlanta Rent-A-Car v. Jackson, 204 Ga. App. 448 (419 SE2d 489) (1992). The Court of Appeals determined the existence of genuine issues of material fact as to AutoSave’s compliance with OCGA § 40-9-102. A. Atlanta AutoSave v. Generali - U. S. Branch, supra at 888 (1). But accepting for the sake of argument that AutoSave did all that it could or all that was reasonable to verify coverage before turning over the rental vehicle, the question is whether the car rental agency loses the statutory exemption provided by OCGA § 40-9-102 when it is later determined that the renter did not have insurance coverage. The answer to such question must be yes. This is so because of the clear legislative purpose behind OCGA § 40-9-102 and because of the public policy of this state.

OCGA § 40-9-102 is plainly remedial. Rabinovitz v. Accent Rent-A-Car, 213 Ga. App. 786 (446 SE2d 244) (1994). Its focus is not the effectiveness of the rental agency in ascertaining the renter’s coverage, nor is its ultimate aim to sanction the rental agency for a less-than-diligent or unsuccessful effort in that regard.

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A. Atlanta Autosave, Inc. v. Generali - U. S. Branch
514 S.E.2d 651 (Supreme Court of Georgia, 1999)

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Bluebook (online)
514 S.E.2d 651, 270 Ga. 757, 99 Fulton County D. Rep. 1127, 1999 Ga. LEXIS 307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/a-atlanta-autosave-inc-v-generali-u-s-branch-ga-1999.