Great American Alliance Insurance Company v. Hensley et al

Filing 55

ORDER granting 37 Motion for Summary Judgment; denying 40 Motion for Summary Judgment. The Clerk shall enter judgment in favor of Great American and close this case. Signed by Judge J. Randal Hall on 05/06/2015. (thb)

IN THE

UNITED

STATES

DISTRICT

SOUTHERN DISTRICT OF

COURT

FOR THE

GEORGIA

AUGUSTA DIVISION
*

GREAT AMERICAN ALLIANCE
*

INSURANCE COMPANY,
*

*

Plaintiff,
*
*

v.

*

CV

114-112

*

BRIAN PRESTON HENSLEY and

ULYSSES RODNEY ANDERSON,
*
*

Defendants.

ORDER

This matter is before the Court on Plaintiff Great American

Alliance

Ulysses
(Docs.

Insurance

Rodney
37,

Company's

Anderson's

40.)

On

("Great

cross-motions

June

10,

2012,

"catastrophically permanent injuries"

Looper Cabinet Company,
Defendant

motorcycle.

Brian

Inc.

Preston

American")

after

judgment.

Anderson

Mr.

Defendant

summary

for

and

sustained

a vehicle owned by

("Looper Cabinet")
Hensley

struck

and driven by

Mr.

(Underlying Compl., Doc'. 40-3, % 23.)

Anderson's

Mr. Hensley

was under the influence of alcohol and allegedly fled the scene.

(Id.

UK 8,

13,

17.)

Great American seeks

to avoid

coverage

under Looper Cabinet's policies of insurance because Mr. Hensley
did not have permission to operate Looper Cabinet's truck while
intoxicated and therefore was not an "insured."

Alternatively,

Great American claims Mr. Hensley subjectively intended to cause

the wreck,

thereby invoking the "Expected or Intended Injury"

exclusion.
same

Mr.

Anderson moves for judgment in his favor on the

grounds.

"insured"

Great

As

under

the

Court

either

American's

finds

policy

Motion

of

for

Anderson's

DENIED.

(Doc.

Motion

for

Hensley

began

role at the company,

Summary

37)

Judgment,

43-44;

at

and

accordingly,

for

Looper

Cabinet

in

is

29-30,

Hensley Dep. II at 6,

and job sites.
Hensley Dep.

9.)

43-44;

Chuck Looper

that

I,

Doc.

Hensley Dep.

I needed

II at 7,

I at

26-28;

was the company-provided truck.

8

to use

At the time of the accident,

On June 10, 2012,

37-6,

at

II,
6-7;

Looper Cabinet also allowed him to

Hensley Dep.

if

of their

(C. Looper Dep.

use the truck on occasion for personal reasons.

II at 29-30,

1996.

When he assumed his current

Looper Cabinet permitted him to drive one

Doc.

at 44.)

(Doc.

GRANTS

which requires him to take measurements in

work,

it.");

Court

an

BACKGROUND

working

trucks between home,
37-9,

Judgment

not

alternative grounds for relief.

(Hensley Dep. II, Doc. 37-7, at 8.)

the field,

the

was

40.)

I.

Mr.

Hensley

insurance,

Summary

declines to address the parties'

Mr.

Mr.

(C. Looper Dep.

("I have been told by

the

truck

I could use

M. Looper Dep.,

Doc.

40-6,

Mr. Hensley's only vehicle

(Hensley Dep. I at 9.)

while driving home from his father's lake

house in a Looper Cabinet truck, Mr. Hensley collided with Mr.
Anderson's

motorcycle.

(Anderson

St.

of

Material

Facts

("DSMF"),

Doc.

40-2,

I

1;

PL's

PL's St. of Material Facts

Resp.

PSMF, Doc.

any services

30;

44-1,

Resp.

("PSMF"),

f 15.)

DSMF,

Doc.

Mr. Hensley was not performing

II at 10-11,

(C.

70;

C.

Hensley Dep.
however,

Looper Dep.

II

at

28;

consumed at

II at

M.

least

Looper Dep.

43; Hensley Dep.

had permission to make the personal trip
43-44,

% 1;

43-1,

% 15; Anderson

37-2,

for Looper Cabinet that day

C. Looper Dep.

Doc.

31;

(C.

II at

four beers

at

7)

Looper Dep.

Hensley Dep.

Looper Dep.

I at

I at

40) .

prior

Mr.

to

and

I at

12,

15;

Hensley,

driving.

(C.

Looper Dep. I at 71; Hensley Dep. II at 7, 29.)
To

take

advantage

of

certain

insurance

discounts,

Looper

Cabinet promulgated and posted a substance abuse policy in 1995
that

stated

DRUGS

("1995

CAN

"NO

WORK

ONE

IN

Policy");

Dep. at 27-28.)

UNDER

THE

SHOP

THE

ON

OFF

OF

THE

ALCOHOL

CLOCK.,,

II at 22-23,

M.

40-7

Looper

rules

(See Doc. 40-7; Hensley Dep.

II at 10-11.)
and policies

SHOP OR ON THE TRUCK,

to

In 2000,
state

Policy").)

ON OR OFF THE

"NO ONE

The 2000

CLOCK."

Policy included

definitions,

and

enacting procedures

substance abuse and drug testing.
3

I at

Looper Cabinet
UNDER THE

CAN WORK

IN THE

(Doc. 37-10 at 1

eight additional

pages outlining the substance abuse policy generally,
forth

ILLEGAL

(Doc.

40-43;

INFLUENCE OF ALCOHOL OR NON-PRESCRIPTION DRUGS

("2000

OR

Mr. Hensley acknowledged receipt of and signed

Hensley Dep.

updated its

OR

C. Looper Dep.

the 1995 Policy upon hire.

16-17;

INFLUENCE

for

(See id. at 2-9.)

setting

investigating
Of note,

[a] n employee reporting to work visibly impaired will
be deemed unable to properly perform required duties
and

will

not

be

allowed

to

work.

...

If,

in

the

opinion of the supervisor, the employee is considered
impaired,
the employee will be sent home or to a
medical facility by taxi or other safe transportation
alternative - depending on the determination of the
observed
impairment
and
accompanied
by
the
supervisor or another employee if necessary.
A drug
and/or alcohol test may be in order.
An impaired
employee will not be allowed to drive.

(Id.

at 4

(§ III.A)

(emphasis added).)

Looper Cabinet did not

have a record that showed Mr. Hensley signed the 2000 Policy nor

did Looper Cabinet post it on its premises,
"sure"

that he had seen it before.

33-34,

40;

According

Hensley Dep.
to

Mr.

II at

Hensley,

given documentation like

[it]

(See C.

12; M.

Looper

but Mr. Hensley was

Looper Dep.

Cabinet

at 48

at

employees

several times."

at 12; see also M. Looper Dep.

Looper Dep.

II at

49-50.)

had

"been

(Hensley Dep. II

("I am not

aware that he

did not sign . . . , but we give him every policy."), 60.)
As a result of

the accident,

Mr.

Hensley was arrested for

and subsequently pled guilty to driving under the influence, but
later

moved

Hensley Dep.
that Mr.

to

withdraw

I at 21-25.)

his

plea.

Indeed,

(C.

Mr.

Looper

Dep.

at

35;

Hensley has maintained

Anderson caused the wreck when he lost control of

motorcycle in damp conditions and went into a skid.

the

(Hensley

Dep. I at 33-39, 66, 85-86; Hensley Dep. II at 14-15.)
At the time of the accident,

Great American insured Looper

Cabinet under Businesspro Policy # 250-34-88-00,

auto policy that provided coverage

for

a commercial

"[a]nyone else while

using

with

borrow,"
37-3,

your permission a

subject

at 44

addition,

Policy

to

certain

(§ II.A),

at 45

Great American

directors,

'auto'

(other

than

stockholders

owned

by

you

exceptions.
(§ II.A.l.b)

your
or

.

which

.

at

19

(§

V.J.10)

Policy,

"[a]ny

^executive
with

used

or

Doc.
In

by

person

respect

that

According

or

officers,'
to

any

person

(Umbrella Policy,

(emphasis added).)

Looper and Michelle Looper,

hire

Cabinet under Umbrella

partners,

and

own,

(emphasis added).)

^employees' )

.

you

(Auto

covered

organization with your permission."
4,

^auto'

insured Looper

# UMB-2-50-34-89-00,

organization

covered

Doc.

to

or

37-

Charles

Looper Cabinet expressly requested

and received coverage for Mr. Hensley as a named insured.

(C.

Looper Dep. I at 69; C. Looper Dep. II at 28-29; Hensley Dep. II
at

27;

M.

however,

Looper

does not

Dep.

at

20-21,

24.)

appear anywhere

Mr.

within

Hensley's

the Auto

name,

Policy or

Umbrella Policy.
II,

Mr.

Anderson

filed

PROCEDURAL HISTORY

suit

against

Mr.

Hensley

and

Looper

Cabinet in the Superior Court of Columbia County on January 15,

2013 (the "Underlying Action").

(Underlying Compl. at 1, 10.)

In the Underlying Action, Mr. Anderson alleges that as a result
of

the

collision

with

Mr.

Hensley,

he

sustained

"catastrophically permanent injuries to his lower right leg and
ankle,

and

numerous

other

injuries

to his

body,

scrapes, bruises, contusions, scars, and the like."

including

(Id. 1 23.)

Mr.

Anderson

Underlying

voluntarily

Action

after

dismissed
Looper

Looper

Cabinet

Cabinet
moved

from

for

the

summary

judgment,

and following Looper Cabinet's dismissal,

the parties

consented

to

of

County,
22.)

transfer venue

Georgia.
Trial

2015,

(PSMF

in the

§§

to

the

Superior

Court

21,

22;

Anderson Resp.

McDuffie

PSMF

§§

21,

Underlying Action commenced on January

12,

but concluded in a mistrial two days later.

(PSMF § 23;

Anderson Resp. PSMF § 23.)
Prior

to

against Mr.
the

Great

American

Anderson and Mr.

parties'

policies

trial,

rights

issued

and

to

filed

instant

case

Hensley seeking a declaration of

obligations

Looper

the

under

Cabinet.

both

(Doc.

insurance

1,

1f

2.)

Approximately two weeks after answering the complaint and prior
to the beginning of discovery in this case, Mr. Anderson filed a
motion

for

summary

judgment

in

which

he

contended

that

all

issues as to coverage of Mr. Hensley were "undisputed" based on

evidence produced during the course of litigating the Underlying
Action.

(Doc. 14 at 3,

requesting in its

9.)

response

Great American opposed the motion,

(Doc.

16)

and subsequently in an

independent motion (Doc. 18) that the Court deny Mr. Anderson's
motion

or

conducted

defer

its

its

own

consideration until

discovery.

The

Anderson's motion to be premature.

Court

after

Great

agreed,

(Doc. 25.)

American

finding Mr.

Meanwhile, Great

American moved for and received a default judgment against Mr.

Hensley,

who

failed

to

file

an

answer

after waiving service of process.
The parties'
consideration.

the

Clerk

Anderson
affidavits

notice

the
or

consequences

of

pleading

for summary judgment are now ripe for

and

summary
other

responsive

(See Docs. 23, 24.)

Upon timely filing of

gave
of

motions

or

their respective motions,

informed

judgment

materials

default.

Great

rules,
in

(Docs.

American
the

right

opposition,

38,

requirements of Griffith v. Wainwright,

and

41.)

Mr.

to

file

and

the

The

notice

772 F.2d 822, 825

(11th

Cir. 1985) (per curiam), therefore, are satisfied.

Ill,

Summary

genuine

STANDARD FOR SUMMARY JUDGMENT

judgment

dispute

as

is

to

appropriate

any

material

only

fact

entitled to judgment as a matter of law."
Facts

are

"material"

if

they

could

in

the

light

Matsushita Elec.

587 (1986),
favor."

omitted) .

Indus.

Co.

favorable
v.

to

no

movant

is

the

outcome

Anderson v.

of

the

Liberty

The Court must view the
the

non-moving

Zenith Radio Corp.,

party,

475 U.S.

574,

and must draw "all justifiable inferences in [its]

U.S.

(11th Cir.

most

the

is

Fed. R. Civ. P. 56(a).

affect

Lobby, Inc., 477 U.S. 242, 248 (1986) .

"there

and

suit under the governing substantive law.

facts

if

v.

1991)

Four Parcels of Real Prop.,

(en banc)

941 F.2d 1428,

1437

(internal punctuation and citations

The
Court,

moving

by

motion.

How

carry

at

1115

reference
Celotex

to

proof

party
to

Corp.

this

trial.

(11th

has

the

initial

materials
v.

Catrett,

burden

depends

Fitzpatrick v.

Cir.

1993) .

on

When

burden

file,

477

on

the

U.S.

who

of

basis

317,

bears

non-movant

has

the

for

323

the

City of Atlanta,

the

showing

the

(1986) .

burden

of

2 F.3d 1112,
the

burden

of

proof at trial,

the movant may carry the initial burden in one

of

by

two

ways

—

negating

an

essential

element

of

the

non-

movant's case or by showing that there is no evidence to prove a
fact necessary to
Clark,

Inc.,

Adickes
477

U.S.

response

v.

929

S.H.

&

Before

opposition,

movant has met

genuine

F.2d 604,
Kress

317).

in

the non-movant's case.

its

issues

606-08

Co.,
the

it

U.S.

first

initial burden of

of material

fact

(11th Cir. 1997)

144

1991)

(1970)

can evaluate

must

judgment as a matter of law.
F.3d 248, 254

(11th Cir.

398

Court

See Clark v.

Coats &

(explaining
and Celotex,

the non-movant's

consider

whether

the

showing that there are no

and that it is entitled to

Jones v.

City of Columbus,

(per curiam) .

120

A mere conclusory

statement that the non-movant cannot meet the burden at trial is
insufficient.

Clark,

929 F.2d at 608.

If - and only if - the movant carries its initial burden,
the

non-movant

"demonstrat[ing]
that precludes

may

avoid

summary

judgment

only

by

that there is indeed a material issue of fact
summary judgment."

Id.

When the non-movant

bears the burden of proof at trial, the non-movant must tailor
8

its

response

to

the

initial burden.

method

by

which

the

movant

carried

If the movant presents evidence affirmatively

negating

a

evidence

sufficient

material

fact,
to

the

non-movant

withstand

a

"must

directed

respond

verdict

trial on the material fact sought to be negated."
2

F.3d at

1116.

material

its

If

fact,

the

the movant

non-movant

shows

must

an absence

either

motion

at

Fitzpatrick,

of

show

with

evidence on a

that

the

record

contains evidence that was "overlooked or ignored" by the movant
or

"come

withstand

alleged

cannot

a

with

directed

additional

verdict

carry

burden

conclusory

Morris

Rather,

its

v.

the

Ross,

F.2d

must

sufficient

trial

Id.

at

on

the

based

1117.

allegations

non-movant

at

relying

by

663

evidence

motion

evidentiary deficiency."

repeating
See

forward

contained

1032,

respond

in

with

the

The non-movant

pleadings

1033-34

on

to

the

(11th

or

by

complaint.
Cir.

affidavits

1981).

or

as

otherwise provided by Federal Rule of Civil Procedure 56.
That

this

matter

comes

before

the

Court

on

cross-motions

for summary judgment does not alter the standard of review, "but

simply requires a determination of whether either of the parties
deserves judgment as a matter of law on the facts that are not

disputed."

United States ex rel.

Care Holdings,

Saldivar v.

Fresenius Med.

Inc. , 972 F. Supp. 2d 1339, 1341

(N.D. Ga. 2013)

(citing Am. Bankers Ins. Grp. V.
1331

(11th

considered

Cir.
"on

2005)).
its

own

United States, 408 F.3d 1328,

Accordingly,
merits,

each

resolving

motion
all

must

be

reasonable

inferences

against

consideration."

the

Id.

As

party

whose

motion

is

under

the Eleventh Circuit has held:

Cross-motions
for
summary
judgment
will
not,
in
themselves,
warrant the court in granting summary
judgment unless one of the parties is entitled to
judgment as a matter of law on facts that are not
genuinely disputed ....
Nonetheless, cross-motions
may be probative of the non-existence of a factual
dispute when []
they demonstrate a basic agreement
concerning what legal theories and material facts are
dispositive.
United States v. Oakley,

744 F.2d 1553,

1555-56

(quoting Bricklayers Int'l Union,

Local 15 v.

Co.,

(11th Cir.

1984)

1975)).

512 F.2d 1017,

1023

(5th Cir.

IV,

It
drive

is undisputed that

Looper

Cabinet's

Stuart Plastering

DISCUSSION

Mr.

vehicle

Hensley received permission to
to

and

from

his

father's

lake

house on the day of the accident and that he did not engage in
any work for Looper Cabinet that day.
however,

Great American argues,

that Mr. Hensley's use of the vehicle after consuming

alcohol violated Looper Cabinet's express policies - a point Mr.

Hensley

concedes

—

rendering

his

use

covered under either policy of insurance.
1,

at

11-12;

Pl.'s

Resp.,

Doc.

43,

at

unauthorized

and

not

(Pl.'s Br., Doc. 374-5.)

Mr.

Anderson

contends that Looper Cabinet's policies apply only to the use of
drugs or alcohol while performing work.

1,

at 8-9;

Anderson Resp.,

Doc.

44,

(Anderson Br., Doc. 40-

at 6-7.)

He emphasizes

Looper Cabinet never had any policy governing its employees'
10

consumption of

alcohol when not performing services for Looper

(DSMF % 7;

Cabinet.

Pl.'s Resp. DSMF 1f 7.)

In addition,

Mr.

Anderson maintains that Looper Cabinet's updated substance abuse

policy,
its

which extended its

fleet

of

trucks

respect to this

nor

signed

2000,

"has

no

action" because Mr.

it.

(Anderson Br.

at

force

consumption to

and

effect

with

Hensley neither received it

9;

Anderson

Resp.

at

7-8.)

Mr. Anderson argues that Great American merely seeks to

Finally,
create

in

rule against alcohol

a

non-existent

of public policy.

exclusion for drunk driving

in violation

(Anderson Br. at 13-15; Anderson Resp.

at 12-

14.)

The
use

or

where

law in Georgia
omnibus

an

clause

employee

858-59

Ins.

Register,

(citing Ditmyer

(Ga. Ct. App.
rules,

or

establish

Barfield v.

App.

239.
this

v.

(Ga.

Am.

1968)).

scope

Ct.

384

company

App.

vehicle

Bay

Ins.

Co.

Ins.

239
Co.,

(Ga.
160

of

define

permissive
Co.

when

use

v.

With these principles in mind,
different

outcome
11

Wooten,

added);

Ct.

1989)

844,

850

oral instructions,

its

859);

450

Select

App.

S.E.2d

arises

and

vehicles.

of Am. , 492 S.E.2d 688,

450 S.E.2d at

expressly

an

permission

of

permissive

circumstances

in

1994) (emphasis

S.E.2d 238,

thus

1997)(citing Wooten,

a

insurer's

An employer's actions,

Royal Ins.

case demands

an

relied upon under

Liberty

regulations

the

a

that

Massachusetts

S.E.2d 857,

v.

clear

"may be

use [s]

forbidden manner."

Co.

is

690

Register,

See

(Ga.

Ct.

384

at

it is difficult to see how
than Charter Oak Fire

Ins.

Co.

13,

v.

Scott,

2015)

Barfield,

In

and

to

Georgia

Oak,

an

2015

WL

Court

employee's

transport

despite

WL

413-197,

the

Charter

vehicle

CV

1137775

of

(S.D.

Appeals'

Ga.

March

decision

in

492 S.E.2d 688.

permission

2015

No.

the

1137775,

some

direct

personal

supervisor

furniture

in

gave

a

him

company

company's prohibition on such personal use.

at

expressly

prohibited

influence

of

*1.

the

Additionally,

use

alcohol.

Id.

of

its

company

vehicles

Subsequent

to

regulations

while
a

under

collision,

the
the

employee pled guilty to driving under the influence of alcohol.
Id.

In granting summary judgment for the

reasoned as

insurer,

Judge Moore

follows:

[Defendant
while

Scott]

under

the

admittedly
influence

operated
of

the

alcohol

vehicle

in

direct

contravention of BES company regulations.
As the
court in Barfield explained, it is immaterial whether
an employee received permission to use a
company
vehicle for a specific and personal purpose if the
actual manner in which the employee uses the vehicle
was prohibited by the employer.
The undisputed facts
in

this

case

establish

that

Defendant

Scott

was

not

a

permissive user at the time of the accident because he
used the vehicle in a manner prohibited by BES.
Therefore,

this

cannot qualify
policy.
Id.

at

Court

as

an

concludes

insured

that

under

Defendant

either

Scott

insurance

*2-3.

Similarly,

in Barfield,

an employee was driving a company

vehicle with permission and within the scope of

his employment

when he

S.E.2d at

was

involved

in a

serious

accident.

4 92

690.

The employee was charged and later pled guilty to driving under
12

the

influence.

Id.

The

Georgia

Court

of

Appeals

held

the

employee's use of the vehicle was unauthorized and nonpermissive
based

on

his

employer's

rule

that

consumption of alcoholic beverages
employee's

admission

rule.

Id.

at

insured

under

because

the manner

that

he

690-91.

the

was

prohibited

of

aware

the

in which the

that

the

Anderson
plain

attempts

language

to

of

of

the

and

employee

was

not

insurance

used

that

an

policy

the vehicle was

Id. at 691.

distinguish
Looper

understood

employee

employer's

not permitted by company regulations.
Mr.

and

in company vehicles and the

Therefore,

terms

possession

Barfield

Cabinet's

by

arguing

substance

abuse

policy prohibits intoxication only when work is being done with
the

vehicle:

"NO

PRESCRIPTION DRUGS

THE CLOCK."1

ONE

UNDER

THE

INFLUENCE

OF

CAN WORK IN THE SHOP OR ON A

ALCOHOL

TRUCK,

(Anderson Br. at 8-10; Anderson Resp.

Anderson Reply,

Doc.

50,

at

2-4;

Doc.

37-10

OR

NON

ON OR OFF

at 6-7,

(emphasis

9;

added).)

The corollary to his argument is that the plain language of the
substance
1

abuse

policy

does

not

prohibit

a

Looper

Cabinet

Mr. Anderson's argument that the 2000 Policy has "no force and effect"

in this case because Mr. Hensley purportedly had no notice of its existence
is unavailing.
Even though Mr. Hensley did not recall signing a copy of the
2000 Policy and Looper Cabinet did not post the 2000 Policy on its premises,
Mr. Hensley testified that he was "sure" that he had seen it before, agreed
with the statement that "Mr. Looper made sure that [he] as an employee knew

the policies and procedures," and understood what the 2000 Policy required.
(See Hensley Dep. II at 12.)
In any case, Mr. Hensley — by nature of his
default — did not raise any argument regarding the sufficiency of notice.
The Court is not convinced that Mr. Anderson may make that argument for him
as Mr. Anderson is not in privity with Looper Cabinet,
nor is he a

beneficiary of Looper Cabinet's employee regulations.
Cf. Capitol Indem.
Corp. v. Fraley, 597 S.E.2d 601, 603 (Ga. Ct. App. 2004) (holding an injured
third-party lacks standing to complain about an insurer's failure to provide
a timely reservation of rights notice) .
13

employee from driving a Looper Cabinet truck under the influence
so long as

Mr.

the employee uses

Anderson

Cabinet
policy
47) .

supports

never
(C.

with

implemented

Looper Dep.

II

the truck on his

unrefuted
an

at

testimony

off-the-clock
42-44;

own time,

M.

that

personal

Looper Dep.

which

Looper
conduct

at

37,

46-

In a very literal sense, Mr. Anderson thus argues that the

substance abuse policy does not expressly forbid Mr.
conduct.

engage

legal

Yet,

Mr.

Anderson's

in a technical,

support.

The

position

that

the

word-by-word analysis

Court

will

not

Hensley's

Court

is bereft

must

of

any

apply regimented contract

interpretation principles to Looper Cabinet's internal policy in
the

complete

enforceable

absence

contract

of
in

argument
the

first

that

the

place,

policy

much

less

creates
a

an

contract

that Mr. Anderson has standing to challenge.

Instead,

the

test

of

permission

under

a

permissive

use

clause like the one in Great American's Auto Policy and Umbrella

Policy is objective.
v. Grange Mut.

Cas.

Barfield, 492 S.E.2d at 691 (citing Hurst
Co.,

470 S.E.2d 659,

relevant question before the Court,

661 (Ga. 1996)).

therefore,

The

is "whether a

reasonable person could conclude under the circumstances that
the use

of

the

[Looper truck]

fell

within

permission granted by the policyholder."

the

scope

of

the

See Allstate Ins. Co.

v. Spillers, 555 S.E.2d 489, 491 (Ga. Ct. App. 2001)

(involving

identical policy language on permissive users); see also Hurst,
470 S.E.2d at 661

(describing the inquiry as "whether the owner
14

or

one

in

legal

permission").

possession

of

the

car

gave

the

user

Reasonable persons could not differ on the answer

to that question in this case.
It

is

dominion

clear
over

circumstance.

11.)

7.)

Hensley

truck,

Hensley

alcohol,

impaired.

at

the

Mr.

admittedly
though

he

(See Hensley Dep.

In response

to

did

at

30;

claims

been aware the whole time you've worked

you're not

supposed to

drink alcohol

drunk in their truck?" Mr.
"not

supposed

beer.

in

II

at

12

"And

to

drive

(Q:

Looper

correct?"

or

that

II

you've
that

and drive

Hensley admitted that he knew he was
(Hensley Dep.

that

deny

9,

after

"drunk"

their trucks

that."

Is

I at

[at Looper Cabinet]

do

the

not

or

81; Hensley Dep.

you

to

supposed

time

vehicle

was

Dep.

Hensley

to

the

77,

"Do

unfettered

Hensley Dep.

he

question

have

as

operated

I at 21-32,

the

not

unrestricted

(See C. Looper Dep.

Mr.

consuming

that

A:

you

truck

I

knew

when

at

17;

that

you'd

"Correct.").)

see

you

been

When

also

weren't

drinking

asked

if

he

deliberately violated the Looper Cabinet substance abuse policy

on the
Mr.

day of

the

accident by drinking and driving the truck,

Hensley replied,

18-19.)

Charles

"That would be

Looper

policy that nobody was
when

they

affirmed

had
that

explained

true."

that

(Hensley Dep.

"[he]

had

a

company

to be driving the company vehicle

been

drinking"

"Mr.

Hensley

(C.

had

Looper
been

Dep.

given

a

II

at

copy

I at

. . .

12)
of

and
[the]

company's policy that informed the employees that they were not
15

to be

driving

Looper

when

further

they were

testified

drinking"

that

"[a]11

(id.

at

13) .

our policies

Michelle

state

-

even

up to our current policy states that you are not supposed to be

using

alcohol

vehicles."

or

(M.

illegal

Looper

substances

Dep.

at

in

39-30.)

our
She

shop

or

in

our

contested defense

counsel's characterization of the substance abuse policy as "not

necessarily

condemn[ing]

them

drinking

and

driving

a

motor

vehicle," insisting that "it says no alcohol use in our policy."
(Id.

at 32-33.)

There
Looper

is

no

contradictory

Cabinet's

substance

testimony

abuse

from

policy

any

did

source

not

that

outright

prohibit its employees from driving its vehicles after drinking
or

that

Pointing
employee

Looper

out

Cabinet

the

conduct

Mr.

Hensley's

of

such

a

absence

after

and Mr.

policy

did not

of

hours

an

internal

likewise

Looper's

imply

actually enforce

does

testimony,

that

Mr.

it

that

policy
not

governing

directly .rebut

nor does

Hensley

way.

had

the

absence

affirmative

permission to drive the company truck while intoxicated when he

was not "at work."2

2

Mr.

Thus,

the only evidence the Court has to

Anderson elicited testimony from Michelle

Looper

that

"to

[her]

knowledge" "there [also] wasn't some oral policy . . . that governed [Mr.
Hensley's] operation of a Looper Cabinet truck" and responded affirmatively
to the question "is i t accurate to say the only policies that governed Brian
Hensley's operation of a Looper Cabinet vehicle would have been in writing?"
(M. Looper Dep. at 38.)
Again, however, pointing out Ms. Looper's lack of
knowledge about oral instructions does not directly rebut Mr. Hensley's or
Mr. Looper's testimony.
Moreover, even if the Loopers' testimony about the
absence of an after-hours personal conduct policy actually contradicts their

testimony about what the Looper Cabinet substance abuse policy prohibits, the
conflicting testimony cannot be construed against Great American because
Looper Cabinet is not party to this declaratory judgment action.
See
16

balance

against

Anderson's

language

dispute

the

bare

presentation

itself,

when

undisputed

which

not

a

is

testimony
of

the

party

this

substance

insufficient

single

in

to

whose

case

is

abuse

create

conduct

Mr.

policy

a

factual

it

actually

governs disagrees about what it prohibits.

Thus, the undisputed

facts

Hensley

in

this

case

establish

that

Mr.

was

not

a

permissive user at the time of accident because he violated a

specific restriction on his use of the truck and cannot qualify
as

an

insured.

Accordingly,

Great

American's

request

for

summary judgment must be granted.
To

rebut

this

conclusion,

Mr.

Anderson

latches

onto

the

Supreme Court of Georgia's language in Strickland v. Ga. Cas. &
Sur.

Co. , 162 S.E.2d 421

(Ga. 1968),

which the Court of Appeals

cited with approval in Gaither v. State Farm Fire & Cas.
Co. , 494 S.E.2d 27
to Barfield.
In

(Ga. Ct. App.

(Anderson Br.

Strickland,

the

at

Court

1997),
10-12;

Ins.

an opinion contemporary
Anderson Resp.

considered

whether

the

at

9-11.)
omnibus

provision of an insurance policy extended coverage to a vehicle
used for a permitted purpose by a driver expressly prohibited

from operating it.
to use

contained

Id. at 423.

The Court held the permission

in an omnibus

clause refers

be served and not the manner of

the vehicle's

to

the purpose to

operation or the

identity of the operator.

Id. at 424 (emphasis added); see also

Ditmyer,

850

160

S.E.2d

at

(contemporaneously

holding

that

Gaither, 494 S.E.2d at 28 (citing English v. Crenshaw Supply Co., 387 S.E.2d
628,

633

(Ga. Ct. App.

1989)).
17

"there

is

omnibus

place

an

absence

clause]

or

if

for

Accordingly,

a

of

permission within

the vehicle

purpose

Mr.

is

not

meaning

being driven at a

authorized

Anderson

the

argues

by

that

the

Hensley drove the truck —

unlawfully —

considered.

cannot

be

[an

time or a

insured") .3

Looper

restrictions on how Mr.

of

Cabinet's

impaired and

He emphasizes

that

it is

undisputed Mr. Hensley had permission for the purpose of driving
to and from his father's lake house and the Court's inquiry must

3

The

Court

notes

that

since

Strickland,

the

terms

"use/'

"purpose,"

"manner,"
"permission,"
and
"scope
of
permission"
have
been
used
interchangeably in much of the Georgia Court of Appeals' precedent addressing
permissive use clause language identical to that in this case.
See, e.g.,
Metro. Prop. & Cas. Ins. Co. v. McCall, 581 S.E.2d 651, 652 n.l (Ga. Ct. App.

2003) (noting "this is not a case dealing with the *scope of permission'"
because the insurance policy language at issue "was amended to 'any other

person using it with your permission'") (first emphasis added); Spillers, 555
S.E.2d at 491 (noting that the objective inquiry may be framed either as
"whether the owner or one in legal possession of the car gave the user

permission"
circumstances

and "whether
that

the

a

use

reasonable
of

the

person

[vehicle]

could
fell

conclude
within

the

under
scope

the
of

permission granted by the policyholder")(emphasis added); Wooten, 450 S.E.2d
at 858-59 (noting that permissive use clauses "may be relied upon under
circumstances where an employee used a company vehicle in an expressly
forbidden manner," but emphasizing that the insurer was arguing that the

employee "was driving the vehicle for a purpose expressly forbidden by his
employer")(emphasis added); Register, 384 S.E.2d at 240 (holding that
"Register deviated substantially from the scope of permission," that the
personal x"use which Register made of the company truck was expressly
forbidden,"

and

"[s]ince

Register

used a company truck

in an expressly

forbidden manner, he would not be insured") (emphasis added); Allstate Ins.
Co. v. Martin, 220 S.E.2d 732, 733 (Ga. Ct. App. 1975) (framing the issue as
whether "the car was used by others in a manner which was not within the

permitted use authorized by the father to the son and in turn by the son to
others," but finding "the car at the time of the accident was not being used
within the permitted purpose as defined Strickland")(emphasis added), aff'd
sub nom., State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co., 225 S.E.2d 1
(Ga. 1976); Ditmyer, 160 S.E.2d at 850 (holding there cannot "be any implied

permission or consent when the use of the truck was at a time and in a manner
beyond the scope of employment or of the permission granted, when the
departure therefrom was complete," but finding the uncontradicted evidence
showed the employee had been forbidden to use the truck on a personal
mission).
18

end there.4
Ins.

Co.

v.

(See Anderson Br. at 10 (citing Metro. Prop. & Cas.
McCall,

581 S.E.2d 651

(Ga.

Ct.

App.

2003)

for the

proposition that "the unrebutted testimony of the insured/owner
of a car regarding another person's permission to use the car is
dispositive").)

The Court disagrees.
courts

foreclosed

Although the Gaither and Strickland

consideration

of

the

manner

of

a

vehicle's

operation when answering the permissive use question,
acknowledge that "[a]t most

[permissive use]

to whether or not

permission to

given."

494

Gaither,

S.E.2d at 424).

permission to

not

an

S.E.2d at

28

could relate only

the

vehicle

(quoting

had been

Strickland,

162

Having determined that Mr. Hensley did not have

operate

Cabinet's policy,
was

operate

they did

the

truck

in clear violation of

then the Court's conclusion that Mr.

"insured"

is

consistent

with

the

Looper
Hensley

Strickland

and

Gaither holdings.

Longstanding precedent in Georgia favors employers'
to

place

certain

explicit

restrictions

on

the

use

of

ability
company

4
In this regard, Mr. Anderson's argument resembles the "first instance
permission rule," under which "permission granted to use a vehicle at the
time of delivery to another extends to any and all use made of it by the
bailee until i t is returned to the owner."

Ditmyer,

rule, however, has never been the law in this state.

60 S.E.2d at 849.

See,

e.g., Wooten,

That

450

S.E.2d at 859 (declining to reach the question whether to adopt the first
instance permission rule as the law of Georgia) ; Transp. Ins. Co. v. Allstate
Ins. Co. , 432 S.E.2d 259, 262 (Ga. Ct. App. 1993) (noting the first instance
permission doctrine was rejected in Hodges v. Ocean Accident & Guarantee
Corp., 18 S.E.2d 28, 31-32 (Ga. Ct. App. 1941)).
19

vehicles by employees,5 and Barfield merely extends this rule in
the limited circumstance where an employer conditions permission

on sobriety,

691.

however

clause

place

or

Ditmyer,

160

Barfield,

if an individual drives a

for

purpose

a

S.E.2d at

allowable

restrictions

Barfield

is

that

independently
are

See

492

S.E.2d at

No permission exists within the meaning of a permissive use

or omnibus

a

formulated.

on

of

the

precedent

to

they

what

wheel;

not

authorized

The

850.
and

common element

the

are

one

at

wholly

physically
they

vehicle at a

issue

the

in

when

a

insured.

between
this

unrelated

occurs

are

by

to

Based on

these

case

and

and

exist

driver's

hands

easily-demarcated

obtaining permission.

time or

this,

conditions
this

Court

finds the Barfield court's reasoning, although sparse, sound.
Under
remains

the

circumstances

the case

that

presented

no proof exists

find that the mission [Mr. Hensley]
to

be

served

S.E.2d

at

by

621

the

therefore,

"from which a

it

jury could

set out on was for a purpose

permission."

(emphasis

here,

Ga.

added).

Farm

The

Bureau

Mut. ,

undisputed

379

evidence

requires a finding that immediately prior to and at the time of

the

collision

granted.

Mr.

Hensley

left

the

ambit

Permission under Looper Cabinet's

conditioned upon sobriety:

internal

who was

is

on notice of

was not sober and thus could not operate the vehicle for
Wooten,

admittedly

rules

rules,

See, e.g.,

and

permission

Cabinet's

40; Ditmyer,

rules

Hensley,

the

Looper

5

internal

Mr.

of

450 S.E.2d at 858-59; Register,

160 S.E.2d at 850.
20

violated

those

384 S.E.2d at 239-

any purpose within the scope of permission granted to him.

His

deviation

it

was

Ditmyer,

160

was

complete —
S.E.2d at

even

American's
at

slight

in defiance

nor

of

the

inconsequential;

forbidden."

850.

Finally,

Br.

"neither

Mr. Anderson claims that public policy bars Great

"strained

interpretation"

13-14;

Anderson

that

defining

contends

employer's

rules

and

Resp.
an

of

at

this

12-13.)

"insured"

policies

case.

(Anderson

Specifically,

by

reference

manipulates

an

permissive

the

to

use

clause into a "back door" exclusion for drunk driving.

at

14.)

The

Court

compensation of
Ins.

that

public

innocent accident victims.

Co. v. Neese,

Georgia

recognizes

courts

329 S.E.2d 136,

have

determined

141

policy

(See id.

favors

the

Cotton States Mut.

(Ga. 1985).

that

he

public

Accordingly,

policy

precludes

enforcement of coverage exclusions in a number of circumstances,
for instance,
arrest,

when an insured attempts to avoid apprehension or

Neese,

329

S.E.2d at

141-42,

while intoxicated,

Ryan v. Boyd,

1996).

these

Indeed,

or when an

911 F. Supp.

examples

heed

the

insured drives

524,

528

Supreme

(M.D. Ga.
Court

of

Georgia's warning in Strickland that to permit use of a vehicle
and

at

the

same

time

prohibit

its

negligent

defeat the very purpose of insurance.

on

intoxicated

the

fact

condition

that
at

the

Mr.
time
21

would

162 S.E.2d at 424.

As distinguished in Wooten, however,

relying

operation

Great American is not

Hensley
of

the

was

driving

accident

to

in

an

exclude

coverage.
a

See Wooten,

case

450 S.E.2d at 859.

where

the

the

"lawful

regulated

mandated that
manner."

Cf.

employer,

they be
Neese,

with

operation"

Moreover,

resounding

of

its

this is not
overbreadth,

company

vehicles

or

operated "safely" or "in a non-negligent

329 S.E.2d at

139

(noting that an insurer's

exclusion of for "exceeding the speed limit" "would appear to be
unenforceable

Leasing Sys.

(finding
vehicle

as

a matter

v. Woodruff,

a

blanket

code

is

of public policy");

447 S.E.2d 97, 100

exclusion

void

as

for

any

against

Gen.

Truck

(Ga. Ct. App.

violation

public

Car &

of

policy

1994)

the

motor

regardless

whether other insurance coverage is available).

Instead,

American

as

argues

because he

vehicle

Mr.

Hensley

could

could not and did not

given

Looper

Cabinet's

not

qualify

an

Great

insured

gain permission to drive

express

prohibition

of

the

against

operating company trucks while under the influence and explicit
rule that impaired employees were not allowed to drive.

Although
exclusionary

the

distinction

provisions

may

between
be

manipulation in some circumstances,

declare a contract

[provision]

coverage

technical

provisions

and

"the power of

and

amenable

to

the courts to

void for being in contravention

of a sound public policy is a very delicate and undefined power,
and,

like

the

power

to

declare

a

statute

unconstitutional,

should be exercised only in cases free from doubt."

S.E.2d

Waring,

at

139

44 S.E.

n.4

(quoting

320,

343

Equitable

(Ga.

1903)).
22

Loan

The

&

Neese,

Security

329

Co.

Court is not

v.

free

from

doubt

here:

Georgia

courts

steadfastly

permissive use provisions of insurance policies
state

even

innocent

though

injured

employer/employee

such

party

enforcement

without

situations,

instructions,

the

insurance

Anderson
exclude

alcoholic

rules,

an

The

none,

employer's

beverages

the

damages.

for

leaves

In

whether

involve review of

an

the

employee

employer's

and regulations that exist independently of

policy.

provides

compensation

the

issued in this

potentially

determining

has permission naturally will

enforce

or

Court

that

finds

prohibitions

driving under

authority,

it

dictates

no

must

against

the

and Mr.

categorically

consumption

influence

of

in company

vehicles from consideration.

V,

CONCLUSION

For the foregoing reasons, the Court GRANTS Great American
Alliance Insurance Company's Motion for Summary Judgment.

37.)

Mr. Anderson's motion for summary judgment,

DENIED.

(Doc. 4 0.)

(Doc.

therefore,

is

The Clerk SHALL enter judgment in favor of

Great American and CLOSE this case.

ORDER ENTERED at Augusta, Georgia, this

(p

day of May,

2015.

l l J.

RANDAL HALL

UNITED S/TATES DISTRICT JUDGE
DISTRICT OF GEORGIA

23