Progressive Mountain Insurance Company v. McCallister et al

Filing 48

ORDER granting Progressive's 44 Motion for Summary Judgment. The Clerk is DIRECTED to enter the judgment accordingly and close this case. Signed by Judge Lisa G. Wood on 5/2/2018. (ca)

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PROGRESSIVE MOUNTAIN INSURANCE

COMPANY,

Petitioner,
No. 5:16-cv-93

V.

RICKY MCCALLISTER, NIKKI
MCCALISTERR, CYNTHIA EVANS,
MARVIN PLATT, DANIEL TURNER,
EASTER SEALS OF SOUTHERN

GEORGIA, INC., DEBORAH BARNARD,
and JACK WILLIAMS,

Respondents.

ORDER

This

matter

comes

before

the

Court

on

Petitioner

Progressive Mountain Insurance Company's ("Progressive") Motion
for

Summary

respond.

Judgment.

Dkt.

No.

44.

Respondents

(And the deadline to do so has passed.)

is ripe for review.

failed

to

This Motion

For the following reasons, this Motion is

GRANTED.

BACKGROUND FACTS

Respondent
March

2,

2016

Ricky
("the

McCallister
collision").

had

a

vehicle

Progressive

collision

had

previously

issued him an automobile insurance policy ("the Policy").
A0 72A

(Rev. 8/82)

on

Dkt.

No.

44-3.

This

case

presents the

question

of

Progressive's

insurance obligation to McCallister.
I.

The Collision

Ricky

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;

Pierce

19:11-22.

County

Auto

repaired, McCallister

The

("the

arrangement

repair

was

shop")

as

needed

follows:

a

if

vehicle

would repair it, and Pierce County Auto

would make payment to Best Bet.

Id. 19:11-22.

Pursuant to this arrangement, McCallister was assigned the
job of repairing Respondent Jack Williams' 1997 Camaro Z28 ("the
Camaro").

Id.

accident, the

engine

could

McCallister.

24:2-6.

Camaro

be

Several

was

months

brought into the

rebuilt,

and

Id. 24:18-25; 25:1-8.

the

job

before

the

repair

shop so the

was

subject

assigned

to

After McCallister finished

rebuilding the engine but while it still remained at the repair
shop, the engine started leaking oil.

32:3-9.

On

March

2,

2016,

Id. 24:14-20; 25:13-18;

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.

While

test

McCallister

Super

driving

caused

Duty,

a

driven

the

collision

by

car

to

with

Respondent

17-18.

the

rear

Cynthia

Respondent Easter Seals of Southern
Dkt. Nos. 1/5

lunch

with

his

wife,

of

Ford

E-350

Evans

Georgia.

a

and

owned

Dkt. No.

by

44-5;

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.

Progressive filed the present action on October 12, 2016,
seeking

provide

a

declaration

coverage,

from

medical

the

Court

payments,

regarding

its

duty

indemnification,

or

to

a

defense for the bodily injury and property damage claims related
to the March 2, 2016 collision.

II.
The

Dkt. No. 1.

The Policy
Policy

provides

insurance

coverage

for

others, collision, and medical payments coverage.

liability

to

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

Id., p. 7.

vehicle

accident

because

of

bodily

injury."

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."
All

three

exclusion.

types

of

coverage

Id., p. 17, 20.

have

an

auto

business

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.
exclusion
auto."

same

does

not

Id., p. 4.

exclusion—that

arising

out

of

an

apply to

you . . . when

using

a

This

covered

The medical payment coverage has the exact

is,

it

accident

does

not

involving

apply
a

to "bodily

vehicle

while

injury
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."

similar exclusion.

Id., p. 8.

The collision coverage has a

It does not apply for loss "to a non-owned

auto while being maintained or used by a person while employed
4

or engaged in any auto business."

Id., p. 17.

(It does not

have the additional language limiting the exclusion shared by

the

liability

business.)

business

and

All

of

medical

three

selling,

payments

define

leasing,

exclusions

^'auto

business"

repairing,

servicing, delivering or testing vehicles.

for

to

auto

mean

parking,

the

storing,

Id., p. 1.

LEGAL STAin)ARD

Summary 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."
Civ. P. 56(a).

A fact is "material" if it "might affect the

outcome of the suit under the governing law."
Grp.

V.

FindWhat.com,

(quoting

Anderson

(1986)).

Fed. R.

v.

658

F.3d

Liberty

1282,

Lobby,

1307

Inc.,

FindWhat Inv^ r

(11th

477

Cir.

U.S.

2011)

242,

248

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

Johnson

v.

all

reasonable

Booker

T.

inferences

Washington

in

Broad.

that
Serv.,

party's
Inc.,

favor.

234

F.3d

501, 507 (11th Cir. 2000).

The moving party bears the initial burden of demonstrating
the absence of a genuine issue of material fact.
V. Catrett, 477 U.S. 317, 323 (1986).

Celotex Corp.

The movant must show the

court

that

nonmoving

there

party's

is

an

case.

absence

Id.

at

of

evidence

325.

If

to

the

support

moving

the

party

discharges this burden, the burden shifts to the nonmovant to go
beyond the pleadings and present affirmative evidence to show
that a genuine issue of fact does exist.

Anderson, 477 U.S. at

257.

The nonmovant may satisfy this burden in one of two ways.

First, the nonmovant "may show that the record in fact contains

supporting evidence, sufficient to withstand a directed verdict
motion, which was
who

^overlooked or ignored' by the moving party,

has thus failed to meet the

absence of evidence."

initial burden

of showing an

Fitzpatrick v. City of Atlanta, 2 F.Sd

1112, 1116 (11th Cir. 1993) (quoting Celotex Corp., 477 U.S. at

332 (Brennan, J., dissenting)).
forward

directed

with

additional

verdict

evidentiary

motion

deficiency."

Second, the nonmovant "may come

evidence

at
Id.

sufficient

trial
at

based

1117.

to

on

Where

withstand

the
the

a

alleged
nonmovant

attempts to carry this burden instead with nothing more "than a
repetition of his conclusional allegations, summary judgment for
the defendants [is] not only proper but required."

Morris v.

Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981) (citing
Civ. P. 56(e)).

Fed. R.

DISCUSSION

This case presents the question of whether an exclusion in
an automobile insurance policy applies.

Interpretation of an

insurance contract is a question of law.

Claussen v. Aetna Cas.

&

Sur.

Co.,

§ 13-2-1).

380

S.E.2d

686,

687

(Ga. 1989)

(citing

O.C.G.A.

Insurance policies are a ^'matter of contract[,] and

the parties to the contract of insurance are bound by its plain
and unambiguous terms."

Hurst v. Grange Mut. Cas. Co., 470

S.E.2d 659, 663 (Ga. 1996).

layman

would

read it and

'MT]he policy ^should be read as a

not as it might be

insurance expert or an attorney.'"
Co.
Mut.

V.

Smith, 784 S.E.2d

Auto.

Ins.

Co.

v.

422, 424
Staton,

analyzed

by an

Ga. Farm Bureau Mut. Ins.
(2016)

685

(quoting State

S.E.2d

263

(Ga.

Farm

2009))
.

^'Where the terms are clear and unambiguous, and capable of only
one

reasonable

interpretation,

the

court

is

to

contract alone to ascertain the parties' intent."

look

to

the

Lavoi Corp.,

Inc. V. Nat'1 Fire Ins, of Hartford, 666 S.E.2d 387, 391 (Ga.

Ct. App. 2008) (quoting Fireman's Fund Ins. Co. v. Univ. of Ga.
Athletic
^^courts

none

Ass'n,
^will

was

654

not

S.E.2d

strain

intended.'"

a

207

(Ga.

contract

Lavoi,

Ct.
to

666

App.

extend

S.E.2d

at

2007)).

And

coverage

where

391

(quoting

Jefferson Ins. Co. v. Dunn, 496 S.E.2d 696 (Ga. 1998))
.

Here,

the

McCallisters.

Policy

is

between

Progressive

and

the

It covers damages for bodily injury and property

damage

for

which the

McCallisters

become

legally

responsible

because of an accident, medical expenses incurred from a motor

vehicle accident, and collisions that arise from sudden, direct,
and accidental loss.

But the liability, medical payments, and

collision coverages each excludes coverage for damage arising
out of an accident involving a vehicle while being maintained or

used by a person while employed or engaged in any auto business.
The

first

question:

did

the

accident

involve

a

vehicle

^'while being maintained or used by a person while employed or
engaged

in

any

auto

business?"

The

undisputed

answer:

yes.

Here, McCallister had possession of the Camaro because its owner
(Jack Williams) had taken it to the repair shop to be repaired,

and the shop had assigned the job to McCallister, as part of his
employment

with Best Bet.

Through Best Bet, McCallister did

contract work as a mechanic for Pierce County Auto.
for the Camaro.
oil

leak

that

He did so

On the day of the accident, the Camaro had an
needed

attention.

McCallister

repairs and decided to test drive the Camaro.

made

further

He testified that

he test drove the Camaro while driving his wife to lunch.

did so ^'to. make sure it wasn't going to leak."

He

Dkt. No. 44-3

27:21-22.

There

is

auto business.

no

question

that

McCallister

was

engaged

in

an

He was employed by Best Bet as a mechanic and

contracted with Pierce County Auto to repair the very car in

question.

He was also engaged in an auto business at the time

of the accident.

Test driving is explicitly part of the auto

business, as the

business

of

Policy defines ^'auto business" to mean

selling,

leasing,

repairing,

servicing, delivering or testing vehicle."
Consistent

with

these

parking,

^'the

storing,

(emphasis added)

conclusions,

Georgia

courts

in

interpreting auto business exclusions that apply when used by a

person while engaged in an autobusiness instruct attention to
the question of ^^in whose charge the vehicle was at the time of
the collision."

Smith

v. State

Farm Mut. Auto. Ins. Co., 387

S.E.2d 623, 624 (Ga. Ct. App. 1989).
State

Farm,

the

Georgia

Court

of

Similarly, in Carter v.
Appeals

held

that

the

automobile was being used for an auto business purpose when the
mechanic

drove

the

car

to

look

for

deviating from his route to eat a meal.

the

customer,

despite

Carter v. State Farm

Mut. Auto. Ins. Co., 223 S.E.2d 252, 254 (Ga. Ct. App. 1976).
The auto business exclusion (in the liability and medical

payments sections) itself has a carveout: the exclusion ^Moes
not apply to you . . . when using a covered auto."
3, pp. 4, 8.

The second question: does this carveout to the

exclusion apply?

applies

when

Dkt. No. 44-

the

The undisputed answer: no.

insured

(McCallister)

auto, as opposed to a non-owned vehicle.

is

The carveout only

driving

a

covered

Here, McCallister did

not own the Camaro, and it was not listed as a covered auto in

the declarations page of the Policy.

So this does not fall

within the carveout to the auto business exclusion.

In conclusion, there is no genuine issue of material fact

regarding whether McCallister was engaged in an auto business
when

the

applies.

collision

occurred.

The

auto

business

exclusion

Summary judgment in favor of Progressive is in order.

Progressive is not obligated to insure the McCallisters under
the Policy for their liability, medical payments, or collision
coverage

for

losses

arising

from

Mr.

McCallister's

collision

with the Ford E-350 on March 2, 2016.
CONCLUSION

Progressive's Motion for Summary Judgment is GRANTED.
Clerk of Court is DIRECTED to

enter

judgment accordingly and

close the case.

SO ORDERED, this 2nd day of May, 2018.

HON. 4s^SA TODBEY (WOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

10

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