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Declaratory judgment, etc. Stephens Superior Court. Before Judge Smith.
This is an action for declaratory judgment brought to determine General Insurance Company of America's (hereinafter referred to as General or insurer) rights and obligations under a policy which it had issued to Camden Construction Company (hereinafter referred to as Camden or insured). The policy provided that it does not apply "to injury or destruction of property owned by, rented to, occupied or used by or in the care, custody or control of the insured or property as to which the insured for any purpose is exercising physical control." (Emphasis supplied.)
The action arose out of the following facts. Camden purchased a load of asphalt (f.o.b. Savannah) delivered to near Young Harris in a tractor-trailer or tanker owned by Coastal Tank Lines but under lease to Associated Petroleum Carriers. At the site, Camden's employees attached an asphalt heater unit (which heats asphalt to liquid and enables it to be unloaded) to the tanker. The driver of the tanker, after parking, went to sleep in the cab. During the unloading operations, the heater caught on fire, then the trailer, and both the heater and trailer were destroyed. Upon Coastal's filing suit against Camden who thereupon called on General to defend, General brought this action for declaratory judgment.
Both parties filed their written motions for summary judgment and after a hearing the trial judge entered an order denying General's motion and granting Camden's motion. Appeal from that judgment was taken to this court by General.
The sole question is whether under the facts of this case the above quoted exclusion is applicable. The evidence as to who had custody and control of the tanker during the unloading process was as follows.
The President of Camden by deposition testified that Camden's employees directed the place of unloading, attached the booster to the tanker where it remained until the asphalt was unloaded; that, while if necessary the truck driver moved the truck, so long as the booster was attached to the trailer the driver had no duties regarding it; that it was the duty of the booster operator (Camden's employee) to make the hook-up of the booster and tanker, unload the tanker, and then disconnect. By affidavit, Camden's president stated that Camden was "allowed to connect two hoses to the tanker for the sole purpose of heating the asphalt and removing it into Camden's own units as explained in my depositions taken on April 5, 1966. Unless this constitutes such, the tanker was not owned by, rented to, occupied or used by or in the care, custody or control of Camden Construction Company, and Camden Construction Company was not exercising physical control over the tanker. On a prior occasion, we had wished the tanker moved to another site and the driver would not do so until he had received instructions to that effect from his employer, Associated Petroleum Carriers, Inc."
The driver of the truck, an employee of Coastal Tank Lines, Inc., testified that Camden's employees told him where they wanted the truck parked, where they wanted it unloaded; that he was under their direction after he got on the job site; that from the time he parked the tractor-trailer until the unloading operations were over he had no duties in regard to the operation of the truck unless Camden's employees asked him to move the truck "further up the job or something like that I'd do it." The driver reiterated that he was the only one with authority to move or drive the truck; that he was not working for Camden; that he had exclusive control over the tractor-trailor which control was not surrendered to Camden; that only he, as the driver, had the right to move the truck. The driver testified that he drove the unit and parked it right where Camden told him to; that he didn't move it until they told him to; that he moved it when they told him and wherever they wanted it; that he was under Camden's direction until the unloading operations were completed; that he did not "guess" Camden could keep him there if his office told him to return; that "any time we're on a job like that--any place, they want us to take it would be all right, but before we could leave the tanker--if they tell us to leave it up there, we would have to call in and tell him about it before we left"; that he had no duties or obligations insofar as the unloading was concerned since that was wholly and completely conducted by Camden.
We recognize the rule that: "Where a provision in an insurance policy is susceptible of two or more constructions, the court will adopt that construction which is most favorable to the insured." John Hancock Mutual Life Ins. Co. v. Frazer, 194 Ga. 201 (20 SE2d 915); North British &c. Ins. Co. v. Mercer, 211 Ga. 161 (84 SE2d 570). "While it is the general rule that ambiguities in an insurance contract must be construed most favorably to the insured, this rule has no application when the contract is unambiguous." Hulsey v. Interstate Life &c. Ins. Co., 207 Ga. 167 (1) (60 SE2d 353); Queen Ins. Co. of America v. Nalley Discount Co., 215 Ga. 837 (114 SE2d 21).
While the truck driver testified that during the unloading operations the tractor-trailer was under his "exclusive control," this can only be construed as a conclusion of law. Thus, the rule is applicable: "A witness will not be permitted to decide the very question which the jury are to pass upon, but must state the relevant facts, and let the jury draw their own conclusion therefrom." Georgia R. & Power Co. v. Head, 155 Ga. 337 (1) (116 SE 620). Such testimony is inadmissible and could not be considered on summary judgment. As held in Moore v. Atlanta Transit System, 105 Ga. App. 70, 72 (1) (123 SE2d 693): "The purpose of the Summary Judgments Act of 1959 was to eliminate the necessity for a jury trial where there is no genuine issue as to any material fact in the case. Scales v. Peevy, 103 Ga. App. 42, 46 (118 SE2d 193); Dillard v. Brannan, 217 Ga. 179 (121 SE2d 765). The 'genuine issue' test is not met unless the evidence offered is competent and admissible."
There being no conflict in the evidence, here we are faced with a purely legal question, that is: do the facts show that the trailer was in the care, custody or control of Camden or that Camden was for any purpose exercising physical control? We hold that they do. In our view the fact that only the truck driver could move the truck from one site to another, as contended for by Camden, is not decisive. For it also appears that the asphalt belonged to Camden, its employees supervised and accomplished the actual unloading, attaching the hose connections from the heater to the tanker, its employees chose the unloading site and directed any changes or moves from that site. Therefore, during the unloading process, control of the tanker was in Camden and the exclusion clause would apply. See Hardware Mut. Cas. Co. v. Mason-Moore-Tracy, Inc., 194 F2d 173; International Derrick & Equip. Co. v. Buxbaum, 240 F2d 536, 538. See in this connection Vaughan v. Home Indemnity Co., 86 Ga. App. 196 (71 SE2d 111). The trial judge erred in denying General's motion for summary judgment and in granting Camden's motion for summary judgment.
Judgment reversed. Frankum, P. J., and Deen, J., concur.
Telford, Wayne & Greer, Joe K. Telford, Joseph H. Blackshear, for appellees.
Robinson, Thompson, Buice & Harben, B. Carl Buice, for appellant.
Friday May 22 19:19 EDT

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