I must respectfully dissent from the decision reached by the majority in this case.
The insurance policy issued by appellant, State Auto Mutual Insurance Company, to McMichael, covered only McMichael and in no way dealt with Colonial Auto Sales or the individuals who operated such business. Therefore, the business exclusion at issue in the policy issued by appellant to McMichael pertained only to McMichael. Whether or not Colonial Auto Sales was in the business of trading and selling new and used motor vehicles was irrelevant. Rather, it was incumbent upon appellant to demonstrate that McMichael was personally engaged in his own business.
I would agree with the court magistrate and the trial court that appellant failed to establish by a preponderance of the evidence that McMichael's activity constituted employment or engagement in a "business," as such term was clearly defined in the policy at issue, to wit: "trade, profession or occupation."
Accordingly, I would find that the court magistrate and the trial court were correct in granting appellee declaratory judgment. Therefore, I would affirm the decision of the trial court.
APPROVED:
______________________________ EDWARD A. COX, PRESIDING JUDGE