United States Court of Appeals,
Eleventh Circuit.
No. 96-9328.
Natasha N. PAYNE, by next friend, Harriet C. GLEATON, Plaintiff-Appellee,
v.
SELECTIVE INSURANCE COMPANY, Defendant-Appellant.
Aug. 6, 1998
Appeal from the United States District Court for the Middle District of Georgia (No. 94-CV-103);
Hugh Lawson, Judge.
Before BLACK, Circuit Judge, and HILL and HENDERSON, Senior Circuit Judges.
PER CURIAM:
Plaintiff Natasha N. Payne brought this action against the Twiggs County School District and
several employees thereof seeking damages for an injury she suffered when she was attacked by a
fellow student on a county school bus. She subsequently amended her complaint to assert a claim
for direct contractual liability, pursuant to O.C.G.A. § 20-2-1090, against Selective Insurance
Company ("Selective"), which had issued a liability insurance policy to the school district. Selective
moved to dismiss the claim against it on the ground that its policy covered only injuries which
resulted from negligent operation of a school bus. The district court denied that motion, but
subsequently certified its order for immediate review 28 U.S.C. § 1292(b). This court granted
Selective's petition for permission to appeal.
In our earlier decision in this case, Payne by Gleaton v. Twiggs County School District, 127
F.3d 1407 (11th Cir.1997), we concluded that the resolution of the issue in this case was not dictated
by clear and controlling precedent of the Georgia Supreme Court. Accordingly, we certified the
following question to the Supreme Court of Georgia:
WHETHER O.C.G.A. § 20-2-1090, A STATUTE REQUIRING COUNTY SCHOOL
BOARDS TO PURCHASE INSURANCE FOR THE PURPOSE OF INSURING SCHOOL
CHILDREN RIDING SCHOOL BUSES TO AND FROM SCHOOL AGAINST BODILY
INJURY RESULTING FROM AN ACCIDENT OR COLLISION IN WHICH SUCH
BUSES ARE INVOLVED, ALLOWS A DIRECT ACTION AGAINST A SCHOOL BUS
INSURER WHERE ONE STUDENT SUSTAINS AN INJURY RESULTING FROM AN
ATTACK BY ANOTHER STUDENT ON THE SCHOOL BUS. THE INSURANCE
POLICY IN QUESTION PROVIDES AS FOLLOWS:
"WE WILL PAY ALL SUMS AN "INSURED' LEGALLY MUST PAY AS
DAMAGES BECAUSE OF "BODILY INJURY' OR "PROPERTY DAMAGE' TO
WHICH THIS INSURANCE APPLIES, CAUSED BY AN "ACCIDENT' AND
RESULTING FROM THE OWNERSHIP, MAINTENANCE OR USE OF A
COVERED "AUTO.' "
Payne, 127 at 1410.
The Georgia Supreme Court answered the certified question in the negative, holding that the
statute does not allow a direct action against a school bus insurer to recover damages for injuries
sustained solely due to one student physically attaching another student while on a school bus.
Payne v. Twiggs County School District, 269 Ga. 361, 496 S.E.2d 690 (1998). Based on this
decision, we REVERSE the district court's decision denying Selective's motion to dismiss and
REMAND for entry of judgment in favor of Selective.
2