Mr. Pride of Atlanta, Inc. v. Metropolitan Property & Liability Insurance

Court of Appeals of Georgia

Mr. Pride of Atlanta, Inc. v. Metropolitan Property & Liability Insurance

371 S.E.2d 211, 187 Ga. App. 737, 1988 Ga. App. LEXIS 813

CourtCourt of Appeals of Georgia

DecidedJune 14, 1988

Docket76425

StatusPublished

Cited by8 cases

This text of 371 S.E.2d 211 (Mr. Pride of Atlanta, Inc. v. Metropolitan Property & Liability Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Mr. Pride of Atlanta, Inc. v. Metropolitan Property & Liability Insurance, 371 S.E.2d 211, 187 Ga. App. 737, 1988 Ga. App. LEXIS 813 (Ga. Ct. App. 1988).

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Opinions

Banke, Presiding Judge.

Mr. and Mrs. Eldon Fritz were struck and killed by an automobile on the premises of a “Mr. Pride” car wash which, for purposes of this appeal, is assumed to have been owned and operated by the appellants. The automobile, which was owned by a third party, had just been pulled mechanically through the car wash tunnel and was being driven to the “drying bay” by a Mr. Pride employee when the accident occurred. The Fritz’s surviving children brought a wrongful-death action against the appellants, who, in turn, filed a third-party complaint against the insurer of the automobile in question, appellee Metropolitan Property & Liability Insurance Company. Metropolitan denied any obligation under the policy, based on the applicability of an “automobile business” exclusion contained therein. Cross-motions for summary judgment were filed on this issue, and the trial court granted Metropolitan’s motion while denying the appellants’ motion. This appeal followed.

The exclusion provided as follows: “We do not cover . . . (e) bodily injury or property damage arising out of automobile business operations.” The term “automobile business” was elsewhere defined in the policy as follows: “ ‘Automobile business’ means the business or occupation of selling, leasing, repairing, servicing, storing or parking motor vehicles or trailers.” Held:

1. Pretermitting consideration of appellants’ contention that the exclusion contravenes public policy by purporting to relieve the insurer of its obligation to provide the minimum liability insurance coverage required by law, we hold that the exclusion is not applicable by its terms. The only one of the categories listed in the policy’s definition of “automobile business” which would even arguably encompass [738]*738the operation of a car wash is that of “servicing” motor vehicles. While the dictionary definition of the verb, “service,” includes “to repair or provide maintenance for,” (Webster’s Third New International Dictionary, Unabridged (1981 ed.)), it does not include cleaning or washing.

It is a well-settled principle of Georgia law that any ambiguity in an insurance policy will be strictly construed against the insurer. See Richards v. Hanover Ins. Co., 250 Ga. 613, 615 (299 SE2d 561) (1983). Such construction is particularly applicable in the case of exceptions, limitations, and exclusions to coverage, on the theory that the insurer, having extended coverage by language which would otherwise encompass the loss, may reasonably be charged with the duty of setting forth any limitations on that coverage in clear and explicit terms. Id. See also U. S. Fidelity & Guar. Co. v. Gillis, 164 Ga. App. 278, 281 (296 SE2d 253) (1982).

Had the appellee insurer wished to exclude from the ambit of the coverage offered by its policy losses arising from the operation of a car wash, it could easily have done so simply by adding the words “cleaning” and/or “washing” to the list of activities subsumed within its definition of “automobile business.” Because those activities were not expressly included in the appellee’s definition, it is at best unclear whether the operation of a car wash is encompassed by the exclusion. It follows that the exclusion must be considered inapplicable to the plaintiffs’ claim.

Metropolitan’s reliance upon Sanders v. Liberty Mut. Ins. Co., 354 F2d 777 (5th Cir. 1965), as authority for a contrary construction of the exclusion is misplaced for at least two reasons. First, that decision was based on application of Alabama law, and, second, the business involved there was a “service station,” which, presumably, provided at least some automobile maintenance and repair services to its customers.

2. It being apparent from the briefs of the parties that the only issue involved in either of the motions for summary judgment was the applicability of the policy exclusion, we hold that the trial court erred in denying the appellants’ motion for summary judgment as well as in granting Metropolitan’s motion.

Judgment reversed.

Deen, P. J., McMurray, P. J., Pope and Benham, JJ., concur. Birdsong, C. J., Carley, Sognier, and Beasley, JJ., dissent.

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Banke, Presiding Judge.

Mr. and Mrs. Eldon Fritz were struck and killed by an automobile on the premises of a “Mr. Pride” car wash which, for purposes of this appeal, is assumed to have been owned and operated by the appellants. The automobile, which was owned by a third party, had just been pulled mechanically through the car wash tunnel and was being driven to the “drying bay” by a Mr. Pride employee when the accident occurred. The Fritz’s surviving children brought a wrongful-death action against the appellants, who, in turn, filed a third-party complaint against the insurer of the automobile in question, appellee Metropolitan Property & Liability Insurance Company. Metropolitan denied any obligation under the policy, based on the applicability of an “automobile business” exclusion contained therein. Cross-motions for summary judgment were filed on this issue, and the trial court granted Metropolitan’s motion while denying the appellants’ motion. This appeal followed.

The exclusion provided as follows: “We do not cover . . . (e) bodily injury or property damage arising out of automobile business operations.” The term “automobile business” was elsewhere defined in the policy as follows: “ ‘Automobile business’ means the business or occupation of selling, leasing, repairing, servicing, storing or parking motor vehicles or trailers.” Held:

1. Pretermitting consideration of appellants’ contention that the exclusion contravenes public policy by purporting to relieve the insurer of its obligation to provide the minimum liability insurance coverage required by law, we hold that the exclusion is not applicable by its terms. The only one of the categories listed in the policy’s definition of “automobile business” which would even arguably encompass [738]*738the operation of a car wash is that of “servicing” motor vehicles. While the dictionary definition of the verb, “service,” includes “to repair or provide maintenance for,” (Webster’s Third New International Dictionary, Unabridged (1981 ed.)), it does not include cleaning or washing.

It is a well-settled principle of Georgia law that any ambiguity in an insurance policy will be strictly construed against the insurer. See Richards v. Hanover Ins. Co., 250 Ga. 613, 615 (299 SE2d 561) (1983). Such construction is particularly applicable in the case of exceptions, limitations, and exclusions to coverage, on the theory that the insurer, having extended coverage by language which would otherwise encompass the loss, may reasonably be charged with the duty of setting forth any limitations on that coverage in clear and explicit terms. Id. See also U. S. Fidelity & Guar. Co. v. Gillis, 164 Ga. App. 278, 281 (296 SE2d 253) (1982).

Had the appellee insurer wished to exclude from the ambit of the coverage offered by its policy losses arising from the operation of a car wash, it could easily have done so simply by adding the words “cleaning” and/or “washing” to the list of activities subsumed within its definition of “automobile business.” Because those activities were not expressly included in the appellee’s definition, it is at best unclear whether the operation of a car wash is encompassed by the exclusion. It follows that the exclusion must be considered inapplicable to the plaintiffs’ claim.

Metropolitan’s reliance upon Sanders v. Liberty Mut. Ins. Co., 354 F2d 777 (5th Cir. 1965), as authority for a contrary construction of the exclusion is misplaced for at least two reasons. First, that decision was based on application of Alabama law, and, second, the business involved there was a “service station,” which, presumably, provided at least some automobile maintenance and repair services to its customers.

2. It being apparent from the briefs of the parties that the only issue involved in either of the motions for summary judgment was the applicability of the policy exclusion, we hold that the trial court erred in denying the appellants’ motion for summary judgment as well as in granting Metropolitan’s motion.

Judgment reversed.

Deen, P. J., McMurray, P. J., Pope and Benham, JJ., concur. Birdsong, C. J., Carley, Sognier, and Beasley, JJ., dissent.

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371 S.E.2d 211, 187 Ga. App. 737, 1988 Ga. App. LEXIS 813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mr-pride-of-atlanta-inc-v-metropolitan-property-liability-insurance-gactapp-1988.

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