dissenting.
Because I believe that neither the insured, Bowen Tree Surgeons, Inc., nor the insurer, Canal Indemnity, intended the policy in question to cover an auto accident caused by an off-duty employee of Bowen while driving his personal vehicle, I must respectfully dissent from the opinion of the majority.
Greatly summarized, the record shows that Bowen carried two policies of insurance: a commercial general liability policy issued by Canal and a motor vehicle liability policy issued by Auto-Owners Insurance Company. On December 18, 2000, Michael S. Black, an off-duty employee of Bowen driving his personal car, crashed into Joel and Brenda Cowart, thereby injuring them. The Cowarts subsequently filed suit against Bowen and Black, and Bowen notified Lisa Bertoch at Yeomans & Associates Agency, Inc., an independent insurance agency, about the lawsuit. Bowen had a longstanding practice of giving such notifications to Bertoch, who, in turn, relayed the notifications to Bowen’s insurers.
When Bowen notified Bertoch of the Cowarts’ suit, she relayed this information only to Auto-Owners, not Canal. Auto-Owners then notified Bowen that it would neither cover Black’s accident nor defend Bowen against the Cowarts. Bowen took no subsequent action, and, on April 19, 2002, a default judgment was entered in favor of the Cowarts in the amount of $1,250,000. On May 8, 2003, Bowen filed a complaint against Canal and Yeomans, contending that the commercial general liability policy with Canal covered the accident in question.
On June 9, 2003, the trial court granted summary judgment to Canal on Bowen’s claims, finding that Canal was never given proper notice of the Cowarts’ suit because Bertoch was not an authorized agent of Canal as a matter of law. On November 21, 2003, this Court reversed the trial court’s finding on the issue of notice, limiting our review strictly to the issue of whether a question of fact remained regarding Bertoch’s authority to accept claims on Canal’s behalf. See Bowen Tree Surgeons v. Canal Indem. Co.8 In that opinion, we also remanded the case with direction to the trial court, instructing it to consider whether Bowen was entitled to coverage under the terms of the policy. On the same day that we issued this opinion, Bowen entered into a settlement agreement with the Cowarts on November 21, 2003 whereby they agreed to limit their recovery of the default judgment to, among other things, any sums Bowen might be entitled to under the Canal policy.
*756On remand, Bowen filed for summary judgment, contending that the Canal policy covered its employee’s accident as a matter of law. On March 31, 2004, the trial court granted summary judgment in favor of Bowen, finding that the accident was an “occurrence” covered by the policy. Given the nature of the overlapping insurance policies issued to Bowen, however, this ruling was erroneous.
In our recent case of Strickland v. Auto-Owners Ins. Co.,9 we considered the standards applicable to overlapping commercial general liability policies and motor vehicle liability policies issued to motor common carriers. In that case, we observed:
Because of the many different arrangements of the drivers and equipment controlling the hauling of their freight loads, it is a common industry practice for motor common carriers ... to obtain two separate policies of insurance to provide seamless coverage for different risks: (1) a commercial general liability policy such as the one in question, which excludes motor vehicle liability and (2) a separate policy to cover motor vehicle liability exposure. To prevent duplicative premiums and overlapping coverage, exclusions are included in the commercial general liability policy to make it clear that, although it covers most accidents in the workplace, it explicitly does not cover motor vehicle collisions.
Id. at 663.
Just such an arrangement was used in this case. Bowen purchased a policy from Auto-Owners to cover motor vehicle collisions and liability and it purchased a separate commercial general liability policy from Canal under which such collisions were excluded.
In doing so, Bowen
fixed the limits of its risk by use of the motor vehicle exclusion language. . . . [Bowen] knowingly accepted the policy with this clear and unambiguous exclusion and obtained motor vehicle coverage from [Auto-Owners] to cover the specifically excluded risk in the [Canal] policy. The intent of the policy, coupled with the exclusion, controls coverage, not how artfully a claim is drafted to bring inclusion within the coverage language and to avoid the exclusion language. Thus, the underlying facts and circumstances of the claim, rather than the theory of the claim, determine whether or not the exclusion applies.*757Decided July 15, 2005 Reconsiderations denied July 28, 2005 Michael T. Thornton, for Yeomans & Associates Agency, Inc. Grim & Bassler, Harry W. Bassler, Joseph M. Murphey, for Canal Indemnity Company. Bell & Bell Associates, David B. Bell, Sharon B. Enoch, for Bowen Tree Surgeons, Inc. et al.
(Citations omitted.) Grain Dealers Mut. Ins. Co. v. Pat’s Rentals.10
Grain Dealers further explains that “the expectations of the insured and the insurers were that there would be two policies of insurance without overlapping coverage and that each insurer would accept a premium for a specific risk insured against as insurance specialists.” Id.
The rationale of Grain Dealers, supra, and Strickland, supra, apply here. Based on the clear language of the policies issued to Bowen, it is evident that seamless, nonduplicative coverage was purchased, pursuant to which Bowen received motor vehicle coverage through Auto-Owners and other coverage through Canal. Accordingly, the trial court erred by finding that the Canal policy covered the motor vehicle accident between Black and the Cowarts.
With regard to any duty of Canal to defend Bowen under its policy, we note that Bowen chose to settle its case following a default judgment rather than contesting that judgment or taking other action to overturn it. Following this settlement, there would have been no litigation in which Canal would have needed to defend Bowen, and, therefore, Bowen’s claims regarding such a duty to defend became moot. Moreover, we note that the accident in question “is expressly excluded under the motor vehicle exclusion of the [Canal] policy.... Thus, [Canal] has no duty to defend or to indemnify against general and special damages.” Grain Dealers, supra at 855 (a).
Bowen Tree Surgeons v. Canal Indem. Co., 264 Ga. App. 520 (591 SE2d 415) (2003).
Strickland v. Auto-Owners Ins. Co., 273 Ga. App. 662 (615 SE2d 808) (2005).
Grain Dealers Mut. Ins. Co. v. Pat’s Rentals, 228 Ga. App. 854, 856 (a) (492 SE2d 702) (1997).