Cases addressing whether injury or damage was caused by “use of an auto” are often times interesting. They can arise under general liability or homeowner’s liability policies – does the “use of an auto” exclusion apply? And they can arise under auto policies, where the insuring agreement requires that injury or damage be caused “by use of an auto.”
It is not surprising that these cases would be interesting. After all, since automobiles are designed with a clear purpose in mind, what’s “use of an auto” shouldn’t be all that hard to figure out. So, if “use of an auto” is being litigated, then it’s probably because the claim involves something more than a person simply sitting behind the wheel, motoring down the road, minding their own business, en route to Point B.
And that’s what can be said about Wilkinson v. Georgia Farm Bureau Mutual Ins. Co., No. A19A1447 (Ga. Ct. App. Sept. 20, 2019).
For convenience sake I’ll set out the facts verbatim from the opinion (not to mention that the decision is fact intensive): “[T]he record shows that Paul Buchanan and Egbert Wilkinson were friends and coworkers. On August 18, 2015, Buchanan purchased a 1994 Ford F350. Egbert asked Buchanan if he could ‘look at’ the truck, and Buchanan agreed. According to Buchanan, the Wilkinsons were not going to test drive the truck but only wanted to look at the truck. On September 30, 2015, at approximately 8:30 p.m., Egbert and Barbara went to Buchanan’s house to look at the truck. Buchanan drove the truck forward approximately eight feet from where it was parked in his driveway so that the Wilkinsons could walk around the vehicle to inspect it. The truck, which was still in front of Buchanan’s garage in the driveway, was parked on an incline and facing the street. Buchanan turned the truck on, placed it in neutral, and set the emergency brake. As Egbert and Buchanan stood outside the truck conversing with each other, Barbara sat in the driver’s seat of the truck. Barbara then exited the truck and spoke with Buchanan. As Buchanan and Barbara went to inspect the truck’s engine, Buchanan told Barbara to pull the truck’s ‘hood latch,’ and warned her to not pull the emergency brake. Barbara looked under the truck’s dashboard, pulled the emergency brake, and the truck ‘took off,’ after which Buchanan saw her lying under the truck. According to Buchanan, Barbara had been holding on to the ‘door jamb’ when she fell, and the truck rolled over Barbara’s ankles as it traveled down the driveway. Buchanan ran after the truck, jumped inside, and stopped the truck. Barbara allegedly sustained multiple injuries, including an open fracture of her left ankle, a right shoulder avulsion fracture, fractures of the tibia and fibula, and a left knee effusion.”
You know where this is going. The Wilkinsons filed suit against Buchanan. Buchanan’s homeowner’s insurer, Georgia Farm Bureau, filed a declaratory judgment action seeking a determination whether it was obligated to defend Buchanan under a homeowner’s policy. GFB relied on numerous policies provisions that it believed precluded coverage. Most importantly was the exclusion for injuries “arising out of . . . [t]he ownership, maintenance, use, loading or unloading of motor vehicles. . . .owned or operated by or rented or loaned to an insured.”
The trial court granted summary judgment for GFB, concluding that the truck was “in ‘use’ at the time of the incident because ‘[t]he truck was being used … to demonstrate its function and operability,’ ‘and that such use resulted in [Barbara]’s injuries.’”
The case went to the Georgia appeals court which reversed, explaining: “It is true that the evidence shows that Buchanan’s truck was at or near the location of the accident, that the accident was caused by Barbara pulling the truck’s emergency brake, and that at the time of the accident, Buchanan and Barbara were examining its components. However, the evidence fails to show that the vehicle was in ‘use’ as a vehicle at the time of the accident. Indeed, the truck was parked in Buchanan’s driveway and had not been employed for any purpose at the time of Barbara’s injury. Instead, the evidence merely shows that the parked truck was being inspected at the time of the accident. Thus, it cannot be said that the vehicle was in ‘use’ as a vehicle at the time of Barbara’s injuries.” (emphasis in original).
