A suit was filed against Albert Boerste, appellee in the case sub judice, as executor of the Estate of Francis J. Boerste, and Augusta Aviation, Inc. (“Augusta Aviation” in the case sub judice), seeking damages for injuries suffered by Philip Brian Clark on June 25, 1987, as the result of the alleged negligence of Francis J. Boerste while operating an airplane owned by Allgood Healthcare, Inc. (“Allgood Healthcare” in the case sub judice). Francis J. Boerste had been provided as a pilot by Augusta Aviation at the request of Allgood Healthcare to fly its aircraft for the business purposes of Allgood Healthcare. Clark was a passenger in the plane, which was insured by appellant Southern General Insurance Company (“Southern General”) for liability for bodily injury and property damage. Francis J. Boerste and Augusta Aviation were covered by a Federal Insurance Company (“Federal” in the case sub judice) policy, and pursuant to its provisions Federal assumed their defense. Southern General refused to *666 provide any defense and denied liability for any judgment that might be entered against the Boerste estate.
On January 3, 1989, Albert Boerste brought a declaratory judgment action against Southern General, Federal, Augusta Aviation and Clark, seeking to have Southern General declared primarily responsible for defending the underlying case and paying any judgment rendered up to the limits of the policy’s liability coverage. Federal’s policy had a clause providing that “[i]f an Insured other than a Named Insured has other insurance against a loss covered by . . . this policy, this insurance shall be excess insurance only over any other valid and collectible insurance with respect to such Insured and then only to the extent necessary so that the total applicable limits of all valid and collectible insurance for the benefit of such Insured shall be not less than the limits of liability stated in the Declarations.” The Southern General policy contained no “other insurance” clause. The trial court found in favor of Albert Boerste, as executor of the Estate of Francis J. Boerste, on his motion for summary judgment and Southern General appeals. Held:
1. Southern General contends that Francis J. Boerste was excluded from coverage by the terms of its policy because he was an employee of Augusta Aviation, which was an independent contractor to Allgood Healthcare. The Southern General policy defines “insured” as, in addition to the named insured, “any person while using or riding in the aircraft and any person or organization legally responsible for its use, provided the actual use is with your permission. This does not apply to any employee with respect to bodily injury of another employee of the same employer injured in the course of such employment. This does not apply to any person or organization or to any agent or employee thereof (other than an employee of the Named Insured while acting in the course of his employment by the Named Insured) engaged in the manufacture or sale of aircraft or aircraft parts, nor in the operation of an aircraft repair shop, airport hangar, aircraft sales agency, aircraft rental service, commercial flying service or flying school with respect to any occurrence arising out of such manufacture, sale or operations. This does not apply to any person operating the aircraft under the terms of any rental agreement or training program which provides any remuneration to you for use of said aircraft.”
The trial court held, in ruling on plaintiffs motion for summary judgment, that Francis J. Boerste “was at the time of the incident at issue an insured under the policy of insurance issued by Southern General Insurance Company and Southern General Insurance Company has the primary obligation to defend the Estate of Francis J. Boerste in the action pending in the Superior Court of Richmond County, Georgia, Civil Action File No. 88-RCCV-596, captioned
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Philip Brian Clark, a Minor, by P. J. Clark, as father and natural guardian vs. Albert Boerste as Executor of the Estate of Francis J. Boerste and Augusta Aviation, Inc.” While there have been no Georgia cases interpreting this issue in regard to aviation liability insurance policies, the automobile liability insurance decisions are clearly analogous. See also
State Farm Fire &c. Co. v. Holton,
2. Southern General’s argument that Francis J. Boerste was excluded as an insured under its policy because he was an employee of Augusta Aviation, and merely an independent contractor as to All-good Healthcare, must likewise fail. “ ‘ “ ‘The true test whether a person employed is a servant or an independent contractor is whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work, as contra-distinguished from the right to insist upon the contractor producing results according to the contract, or whether the contractor in the performance of the work contracted for is free from any control by the employer of the time, manner, and method in the performance of the work. (Cits.)’ (Cit.)” (Cits.)’ [Cits.] ‘ “Where one is employed generally to perform certain services for another, and there is no specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the employer has retained the right to control the manner, method and means of the performance of the contract, and that the employee is not an independent contractor.” The test is not whether the employer
did in fact control
and direct the employee in the work, but it is whether the employer had that right under the employment contract.
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(Cit.)’ (Emphasis in original.) [Cit.]”
Atlanta Braves v. Leslie,
In the case sub judice, the test is whether, when Allgood Healthcare obtained Francis J. Boerste’s services as a pilot from Augusta Aviation it retained the right to control and direct him in the accomplishment of his assigned task. While Boerste’s special skills as a pilot were obviously necessary for the services to be rendered, it is undisputed that Allgood Healthcare controlled the destination and time of the flight, and had it changed these plans Boerste would have been obligated to comply. “It is the control of the relationship and not of the instrument which determines the relationship between the parties. One may be a servant or agent of another even though the employee is so much more skilled in the endeavor that actual assumption of the control would be a ‘folly.’ [Cit.] The fact that [Francis J. Boerste] was also an employee of [Augusta Aviation] is not controlling. Under the common law of master and servant, a servant can at one time be generally the employee of his general employer and specially the employee of a special employer. [Cit.]”
Fort Myers Airways v. American States Ins. Co.,
supra at 886. See also
Moss v. Central of Ga. R. Co.,
3. Southern General further contends that Clark’s presence as a passenger in the airplane was outside the permission granted by All-good Healthcare for the use of the plane, and therefore voided coverage under its policy. However, the appellate courts of this State have taken an adverse position in considering similar omnibus clauses in automobile policies dealing with “actual use” of the insured vehicle with permission by the named insured. As stated in
Strickland v. Ga. Casualty &c. Co.,
Judgment affirmed.