Progressive Premier Insurance v. Newell

739 S.E.2d 756, 320 Ga. App. 301, 2013 Fulton County D. Rep. 663, 2013 Ga. App. LEXIS 172
CourtCourt of Appeals of Georgia
DecidedMarch 12, 2013
DocketA12A1999
StatusPublished

This text of 739 S.E.2d 756 (Progressive Premier Insurance v. Newell) 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.

Bluebook
Progressive Premier Insurance v. Newell, 739 S.E.2d 756, 320 Ga. App. 301, 2013 Fulton County D. Rep. 663, 2013 Ga. App. LEXIS 172 (Ga. Ct. App. 2013).

Opinion

Boggs, Judge.

In this insurance coverage case, Progressive Premier Insurance Company of Illinois (“Progressive”) appeals from the trial court’s grant of summary judgment in favor of American Insurance Company and R0H0H0, Inc. d/b/a Papa John’s Pizza (“Papa John’s”) as well as the denial of its motion for summary judgment in its favor. For the reasons explained below, we reverse.

On appeal from the denial or grant of summary judgment, [the appellate court] must conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation omitted.) Northwest Carpets v. First Nat. Bank, 280 Ga. 535, 538 (1) (630 SE2d 407) (2006). So viewed, the record shows that [302]*302Progressive issued an automobile insurance policy to Philip Newell with limits of $25,000 per person and $50,000 per accident for bodily injury liability and $25,000 per accident for property damage liability. This policy contained the following exclusion:

Coverage under this Part I [Liability to Others], including our duty to defend, will not apply to any insured person for . . . bodily injury or property damage arising out of the ownership, maintenance, or use of any vehicle or trailer while being used to carry persons or property for compensation or a fee. This exclusion does not apply to shared-expense car pools.

On March 7, 2008, Newell was driving his Jeep Cherokee when he collided with a car occupied by Michael and Kaitlin Lepper. At the time of the accident, Newell was delivering a pizza for his employer, Papa John’s. The record shows that Papa John’s paid Newell $4.00 per hour when he was making deliveries and $7.25 an hour when he was working inside the store. Newell would also keep any tips he received from customers. Generally, if Newell was not delivering pizza, he would have been working inside the store. Papa John’s also paid Newell $1.20 “per house” for deliveries. A Papa John’s representative testified that the purpose of this payment was “to cover their gas and wear and tear on their vehicle.” In its brief, Papa John’s asserts that the “per house payment was not some random fee that was disproportionate to the actual expenses incurred by the driver. Rather, this amount was generated by a computer program that addressed delivery mileage and other factors in setting the reimbursement.” But this assertion does not reflect the testimony of a Papa John’s representative, who testified that large arbitrary mileage numbers were plugged into the computer to ensure that the computer paid each driver $1.20 per delivery.

After the Leppers filed a personal injury action against Newell and Papa John’s, Progressive filed a declaratory judgment action against Newell, Papa John’s, the Leppers, Nationwide Insurance Company,1 and American Insurance Company (“American”)2 seeking a declaration that it had no duty to provide coverage or a defense [303]*303under its policy. Papa John’s and American asserted a counterclaim seeking coverage and a defense for Papa John’s, in addition to a declaration that Progressive’s policy was primary. Progressive filed a motion for summary judgment, and Papa John’s and American filed a cross-motion for summary judgment with regard to the exclusion in Progressive’s policy. The trial court concluded that the policy language was ambiguous and therefore construed it in favor of coverage. It also concluded that Newell’s Progressive policy was “primary to all other coverage” and denied Progressive’s motion and granted summary judgment in favor of Papa John’s and American.3

On appeal, the parties point to cases from other jurisdictions addressing similar exclusions in the context of pizza delivery, in addition to a nonbinding Georgia decision addressing different facts. Progressive asserts that its exclusion language (“carry . . . property for compensation or a fee”) is broader than the language at issue in the cases relied upon by Papa John’s and American (“carry property for a fee”). It also asserts that the $1.20 per delivery payment to Newell unequivocally triggers application of its exclusion.

Based upon our review of relevant cases from other jurisdictions, it appears a majority have concluded that the “for a fee” language is ambiguous and must therefore be construed in favor of the insured. See Prudential Property & Cas. Ins. Co. v. Sartno, 588 Pa. 205 (903 A2d 1170) (2006); United States Fidelity & Guaranty Co. v. Lightning Rod Mut. Ins. Co., 80 Ohio St. 3d 584, 586 (687 NE2d 717) (1997); Progressive Cas. Ins. Co. v. Metcalf, 501 NW2d 690, 692 (Minn. App. 1993); RPM Pizza v. Automotive Cas. Ins. Co., 601 S2d 1366, 1368-1369 (La. 1992); Pizza Hut of America v. West Gen. Ins. Co., 36 Ark. App. 16, 21 (816 SW2d 638) (1991). Compare Dhillon v. Gen. Accident Ins. Co., Case No. C14-90-00714, 1991 Tex. App. LEXIS 891 (Tex. App. April 11, 1991); Krauss v. DeRocili, Case No. 86C-NO-60, 1988 Del. Super. LEXIS 276 (Del. Super. August 2, 1988). The explanation of the ambiguity varies somewhat from jurisdiction to jurisdiction. For example, “the meaning of ‘fee’ may be construed narrowly to encompass only specific contracts of carriage such as when a person makes a definite payment to another to carry a specific piece of property.... On the other hand, the meaning sometimes might contemplate that a ‘fee’ could be compensation for labor.” RPM Pizza, supra, 601 S2d at 1368. See also Metcalf, supra, 501 NW2d at 692.

[304]*304The Pennsylvania Supreme Court found the “for a fee” language ambiguous because

there are at least two perspectives that are reasonable: (1) using a broad interpretation, [the driver] did carry property for a fee because his deliveries occurred during the course of his employment, for which he received wages; or (2) under a narrower interpretation, [the driver] did not carry property for a fee because there was no delivery charge.

Sartno, supra, 903 A2d at 1177.

The Ohio Court of Appeals also concluded that the “for a fee” language can be read in two ways: “[F]irst, as excluding from coverage use of a vehicle to transport property when there is any kind of payment to the insured, and second, as excluding coverage only when a fee is paid specifically for the particular act of transporting property.” (Emphasis in original.) Lightning Rod, supra, 687 NE2d at 719. In a special concurrence, Judge Cook noted:

Although the decisions that find the “for a fee” exclusions ineffective to deny coverage typically on their faces narrowly rely on an “ambiguity” analysis focusing on the word “fee,” many of the decisions, often without directly so stating, appear to be influenced by the practical implications that would accompany allowing the exclusion to operate.

Id. at 720. The Pennsylvania Supreme Court agreed, listing examples of the “many potentially absurd results that could arise with a contrary holding.” Sartno, supra, 903 A2d at 1178.

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Related

First Georgia Insurance v. Goodrum
370 S.E.2d 162 (Court of Appeals of Georgia, 1988)
Progressive Casualty Insurance Co. v. Metcalf
501 N.W.2d 690 (Court of Appeals of Minnesota, 1993)
Northwest Carpets, Inc. v. First Nat. Bank of Chatsworth
630 S.E.2d 407 (Supreme Court of Georgia, 2006)
Prudential Property & Casualty Insurance v. Sartno
903 A.2d 1170 (Supreme Court of Pennsylvania, 2006)
Pizza Hut of America, Inc. v. West General Insurance
816 S.W.2d 638 (Court of Appeals of Arkansas, 1991)
Woody v. Georgia Farm Bureau Mutual Insurance
551 S.E.2d 836 (Court of Appeals of Georgia, 2001)

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Bluebook (online)
739 S.E.2d 756, 320 Ga. App. 301, 2013 Fulton County D. Rep. 663, 2013 Ga. App. LEXIS 172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/progressive-premier-insurance-v-newell-gactapp-2013.