Mr. Pride of Atlanta, Inc. v. Metropolitan Property & Liability Insurance

Beasley, Judge,

dissenting.

I respectfully dissent. The business of a car wash service is to provide maintenance for automobiles. Automobile maintenance includes keeping the vehicle clean. It is common knowledge that such type maintenance protects the finish; it makes more than an aesthetic *739difference. The exterior as well as the interior of a car and its operating mechanisms require maintenance. Here the car was not only being washed but also waxed, vacuumed, and filled with gas. Particularly since the exclusion is expressed in a comprehensive serialization of various aspects of that segment of American business which is related to motor vehicles and trailers, and each aspect is one which would embrace a number of different establishments, the term “servicing” should not be construed to excise car-washing from its common meaning. Just because the business specialized in cleaning rather than offer the full range of service, including washing which is provided by a service station, does not render it any less the business of “servicing.” See Haley v. State Farm &c. Ins. Co., 130 Ga. App. 258, 259 (202 SE2d 838) (1973). Upon analysis, the term is not ambiguous.

I agree with the trial court that the insurer did not contract to be liable for injuries arising out of the operation of the automobile by the employee of the car-wash enterprise while it was being serviced, which process it was still in at the time of the incident.

That being the case, it would become necessary to consider whether this exclusion from liability coverage is contrary to public policy, as urged by appellants, and thus unenforceable. It would appear not, as it does not disserve the purposes identified in Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335, 341 (329 SE2d 136) (1985) or the expression in Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692 (335 SE2d 186) (1987). The legislature has not stated, and the Supreme Court has not held, that all exclusions are invalid, or that all injuries and damages arising out of the use of the covered vehicle, regardless of who was operating it or in what context or for what purpose, are invalid. Each exclusion case must be evaluated individually. Southern Guaranty Ins. Co. v. Preferred Risk Mut. Ins. Co., 257 Ga. 355, 356 (359 SE2d 665) (1987).

In the circumstances here, which do not involve an uninsured motorist, nor any liability on the part of the car owner, the exclusion does not contravene public policy, as recourse is available against the business tortfeasor and parties related to her such as the business’ liability insurer. As said in Integon, supra at 693: “Expressions of the legislature through statutes are conclusive on the question of public policy; and courts cannot declare agreements or acts authorized by statute to be contrary to public policy. [Cit.]” Thus the auto insurer’s expressed intent in this case, not to cover the auto when it is turned over to the exclusive control of an establishment in the specified automobile industry businesses, should be honored.

I am authorized to state that Chief Judge Birdsong, Judge Carley, and Judge Sognier join in this dissent.

*740Decided June 14, 1988 Rehearing denied July 7, 1988 Kent T. Stair, Douglas A. Wilde, for appellants. W. Wray Eckl, Debra L. Mixon, for appellee.