Grange Mutual Casualty Co. v. King

Beasley, Judge,

concurring specially.

I agree but upon a somewhat different basis.

Section I of this homeowners policy deals with losses to the insured’s property of various types, from certain perils, and so is not relevant here. Section II relates to liability of the insured for bodily injury to someone else and to property damage to someone else’s *719property. This suit involves injury to a third person, off the premises, by defendants’ minor son while using an unregistered trail bike. Thus the question is whether defendants’ liability for that incident, if there is any, is covered by Section II.

As to personal liability, the appellant in Coverage E “ . . . agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence.” In Coverage F it “agrees to pay all reasonable medical expenses, ... to or for each person who sustains bodily injury to which this insurance applies caused by an accident, while such person is: ... 2. elsewhere [i.e., not on the insured premises], if such bodily injury ... b. is caused by the activities of any insured, . . .”

An “insured” is defined in the General Conditions relating to both Sections I and II to mean “8. a. (2) . . . residents of the Named Insured’s household, . . .” Thus, so far, the incident being complained of here is covered.

Of course, as is usual, this coverage under E and F do not apply to the use, et cetera, of aircraft and most motor vehicles. It does cover personal liability and medical payments to others for bodily injury or property damage if the vehicle is of a certain premise-kept type (like a rideable lawn mower, I suppose). It does not apply to certain recreational motor vehicles, but as the majority has shown, the trail bike here would not, under the policy definition, constitute an excluded “recreational motor vehicle” because it is subject to motor vehicle registration.

We must therefore back up to determine if it is an excluded “motor vehicle,” and under the definition of that term as used in Section II, it is just that because it is “a land motor vehicle . . . designed for travel on public roads.”

Since the personal injury here complained of arose out of the “ownership, . . . operation, [and/or] use ... of any motor vehicle owned or operated by . . . any insured,” which motor vehicle was “subject to motor vehicle registration,” the incident involving it was clearly excluded. Addison v. Southern Guaranty Ins. Co., 155 Ga. App. 536 (271 SE2d 674) (1980). Whether the insureds intended that it not be used on public roads would be irrelevant. Cotton States Mut. Ins. Co. v. Statiras, 157 Ga. App. 169, 172 (276 SE2d 853) (1981). And whether it was in fact registered or not also makes no difference. See Farlow v. Vigilant Ins. Co., 165 Ga. App. 696, 698 (302 SE2d 578) (1983), distinguishing the language used here. Likewise, whether the alleged liability was based on a theory of negligence or negligent entrustment or any other theory would not require or allow a different answer; the policy makes no distinction.

*720Decided April 19, 1985 Rehearing denied May 7, 1985 Ray L. Allison, for appellant. Douglas L. Breault, John T. Laney III, for appellees.