Daniel and Teresa Card filed a wrongful death action against ap-pellee Perimeter Tractor & Trailer Repair, Inc. (Perimeter) and its employee, appellee Bussey, after a tractor-trailer truck which was owned by appellee Classic Motor Lines, Inc., and driven by Bussey, and which was the subject of a policy of insurance issued by appellee United States Fire Insurance Company (USF), struсk a pickup truck driven by Mrs. Card, resulting in the death of the Cards’ minor son. Perimeter asked appellee American States Insurance Company (American) to provide a defense, which request American rejected on the ground that it had not issued a policy of insurancе to Perimeter. USF also refused to provide a defense, asserting that the factual scenario had activated an exclusion сontained in its policy of insurance covering the tractor-trailer truck. Appellant Cincinnati Insurance Company, the errors and omissions carrier for appellant Jim Anderson & Company (Anderson), Perimeter’s insurance agent, filed this action for declaratory relief. In separate orders, the trial court granted USF’s and American’s motions for summary judgment and denied that of appellants. This appeаl followed.
1. At the time of the collision, Bussey was driving the tractor-trailer rig owned by Classic Motor Lines to Perimeter’s place of business for “tоuch-up” work on the paint job Perimeter had done on the vehicle. Perimeter offered “pick up” and “delivery” of the vehicle аs part of its services. Classic Motor Lines had no ownership interest in Perimeter. The USF policy insuring the vehicle stated that anyone *244 using the covered vehicle owned by Classic Motor Lines with Classic’s permission was an “insured” under the policy, except “someone using a covered auto while he or she is working in a business of selling, servicing, repairing or parking autos unless that business is owned by [Classic Motor Lines].” USF contended and the trial court agreed that servicing and repairing the vehicle included Perimeter’s business of painting the vehicle. Based on that сonclusion and the fact that Bussey was acting within the scope of his employment with Perimeter at the time of the collision, the trial cоurt applied the policy exclusion and granted summary judgment to USF.
Appellants maintain that the trial court was precluded from conсluding that Perimeter was a repair service facility because USF, by failing to respond to appellants’ statement of material fаcts as to which appellants contend there was no material dispute, had admitted that Perimeter was
not
in the business of servicing or reрairing vehicles. Appellants aptly cite this court’s decision in
Booker v. Eddins,
The exclusion before us “focuses on the person in whose charge the automobile is at collision-time. [Cits.]”
State Farm &c. Ins. Co. v. U.S.F.&G.,
2. We now turn to Perimeter’s claim of entitlement tо insurance coverage under a binder issued by American States. It is undisputed that American, through Anderson, issued to Perimeter two binders on a “garаgekeepers legal liability” policy, one effective January 14, 1986, and expiring February 14, 1986, and the other effective March 14, 1986, and expiring April 14, 1986. Unbeknownst to Perimeter, American sent a letter to Anderson on January 30, 1986, declining to issue the policy. The fatal collision for which Perimeter seeks coverage occurred on September 8, 1986.
Citing
State Farm &c. Ins. Co. v. Collins,
Judgments affirmed.