Georgia Farm Bureau Mutual Insurance Company (“Georgia Farm”) filed a complaint for declaratory judgment to determine its responsibility pursuant to a homeowner’s insurance policy to defend James Buckbee against a lawsuit filed by Martin Hays, who was injured while Buckbee was operating his vehicle on his property. Georgia Farm and Hays filed cross-motions for summary judgment. The trial court granted Georgia Farm’s motion for summary judgment and denied Hays’s summary judgment motion, finding that a policy exclusion applied because Hays’s bodily injury arose out of Buckbee’s use of a motor vehicle. Hays filed the instant appeal to challenge the trial court’s rulings. Finding no error, we affirm.
“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).”
Matjoulis v. Integon Gen. Ins. Corp.,
So construed, the evidence shows that, in August 2007, Buckbee and Hays attempted to lift a portable toilet onto the top of a deer stand that was located on Buckbee’s property. Buckbee attached a rope to the top of the modified portable toilet, ran it through a pulley attached to the top of the deer stand, and then attached the rope to the rear of his pickup truck. Hays was standing on top of the deer stand during the attempted maneuver. When Buckbee began driving his truck forward to lift the portable toilet, the deer stand fell 20 feet to the ground, as did Hays, who sustained various injuries.
Hays subsequently filed suit against Buckbee, alleging that Buck-bee negligently operated a motor vehicle and used excessive force on the pulley system. Buckbee was insured under a homeowner’s policy issued by Georgia Farm. Georgia Farm filed an action for declaratory judgment to determine whether it was obligated to defend Buckbee in Hays’s action against him. Georgia Farm and Hays subsequently filed cross-motions for summary judgment. In its motion for summary judgment, Georgia Farm asserted that its policy did not provide coverage for Hays’s claims based upon an exclusion stating that coverage “[did] not apply to bodily injury . . . arising out of . . . the ownership, maintenance, use, loading or unloading of motor vehicles . . . owned or operated by or rented or loaned to [Buckbee].” Hays, in turn, argued that the policy exclusion did not apply, because the phrase “use ... of a motor vehicle” in the exclusionary clause was ambiguous, and Buckbee’s truck was not being used as a motor vehicle in an “ordinary” way.
The trial court granted Georgia Farm’s motion for summary judgment and denied Hays’s summary judgment motion, finding that Hays’s claims arose out of the use of Buckbee’s truck, and that, therefore, the policy exclusion applied.
1. Hays contends that the trial court’s decision was erroneous since the phrase “use ... of a motor vehicle,” as used in the exclusionary clause, is ambiguous. He also asserts that the exclusionary clause did not apply because the truck was not being used as a motor vehicle, but as an external power source. We disagree.
[I]n Georgia, insurance is a matter of contract, and the parties to an insurance policy are bound by its plain and unambiguous terms. Thus, when faced with a conflict over coverage, a trial court must first determine, as a matter of law, whether therelevant policy language is ambiguous. A policy which is susceptible to two reasonable meanings is not ambiguous if the trial court can resolve the conflicting interpretations by applying the rules of contract construction.
(Punctuation and footnotes omitted.)
Old Republic Union Ins. Co. v. Floyd Beasley & Sons,
The phrase “use of a motor vehicle” is not defined in Georgia Farm’s insurance policy. This Court has defined the term “use” as “to employ for some purpose.” (Punctuation and footnote omitted.)
Lancer Ins. Co. v. United Nat. Ins. Co.,
Whether an injury arose out of “use” of a motor vehicle, turns on consideration of (i) the physical proximity of the injury site to the vehicle, (ii) “the nature of the conduct which caused the situation of jeopardy,” and (iii) whether the vehicle was “being ‘utilized’ in the plain and ordinary sense of the word.” (Punctuation and footnotes omitted.)
Old Republic,
supra,
Applying these considerations in the instant case, we conclude that the phrase “use of a motor vehicle” was not ambiguous, and that Buckbee’s truck was in “use.” The evidence showed that Buckbee’s truck was at or near the location of the accident, Buckbee had control of the truck at the time, and Buckbee’s operation of the truck was the conduct that caused the accident. Further, Buckbee deposed that he often towed and pulled heavy objects, using the hooks on the truck’s bumper. Buckbee’s testimony established that the truck’s utility function in this respect was an ordinary use of the truck.
See Assurance Co. of America v.
Bell,
Hays relies upon cases decided by foreign jurisdictions as persuasive authority in support of his contention that the truck was being “used” not as a “motor vehicle,” but as a power source. We are not persuaded since these cases are distinguishable. In both
Nationwide Mut. Fire Ins. Co. v. Johnson,
Hays’s reliance on
American Modern Home Ins. Co. v. Rocha,
Based on the evidence presented in this case, the trial court properly found that Buckbee’s truck was in “use” at the time of the accident, as that term is contemplated in Georgia Farm’s exclusionary clause.
2. Hays next contends that the exclusionary clause does not apply because the truck was not the predominating cause of the accident. We disagree.
When the phrase “arising out of” is found in an exclusionary clause of an insurance policy, we apply the “but for” test traditionally used to determine cause-in-fact for tort liability.
Barrett v. Nat. Union Fire Ins. Co. &c.,
[t]he exclusionary clause is focused solely upon the genesis of the underlying plaintiffs claims — if those claims arose out of the excluded acts . . . then coverage need not be provided. Claims arise out of [the] excluded conduct when “but for” that conduct, there could be no claim against the insured.
(Citations, punctuation and footnote omitted.)
Video Warehouse v. Southern Trust Ins. Co.,
Applying the “but for” analysis to this case, we conclude that Hays’s injuries would not have occurred but for Buckbee’s use of his truck. Significantly, Hays deposed that the deer stand would not have fallen over, “but for” Buckbee putting the truck in gear and pressing on the accelerator to pull the rope. Because the insurance policy specifically excluded any claim “arising out of” the use of a motor vehicle, Georgia Farm had no duty to defend against Hays’s claim that Buckbee negligently operated the truck.
To the extent Hays’s amended complaint alleged negligence based on Buckbee’s use of excessive force on the pulley system, rather than the use of his truck, it does not change the outcome of the case. The injuries which gave rise to the cause of action arose out of and were based on Buckbee’s use of his truck. There was no evidence that the pulley system was defective. Consequently, the trial court correctly found that the conduct
Accordingly, the trial court did not err in granting summary judgment to Georgia Farm in its declaratory judgment action.
Judgment affirmed.