The Georgia Court of Appeals, reversing a trial court's decision, has ruled that a truck parked in a residential driveway as a couple was "looking" at it, which allegedly rolled down the driveway and injured the woman, was not in "use" within the meaning of the truck owner's homeowner's insurance policy.

The Case

According to Barbara and Egbert Wilkinson, after Paul Buchanan – Mr. Wilkinson's friend and coworker – purchased a 1994 Ford F350, Mr. Wilkinson asked Mr. Buchanan if he could "look at" the truck, and Mr. Buchanan agreed.

According to Mr. Buchanan, the Wilkinsons were not going to test drive the truck but only wanted to look at the truck.

The Wilkinsons said that they went to Mr. Buchanan's house to look at the truck and that Mr. Buchanan drove the truck forward approximately eight feet from where it was parked in his driveway so that the Wilkinsons could walk around the vehicle to inspect it. The truck, which still was in front of Mr. Buchanan's garage in the driveway, was parked on an incline and facing the street.

Mr. Buchanan turned the truck on, placed it in neutral, and set the emergency brake.

As Mr. Wilkinson and Mr. Buchanan stood outside the truck conversing with each other, Ms. Wilkinson sat in the driver's seat of the truck. She then exited the truck and spoke with Mr. Buchanan.

As Mr. Buchanan and Ms. Wilkinson went to inspect the truck's engine, Mr. Buchanan told her to pull the truck's "hood latch," and warned her to not pull the emergency brake. She said that she looked under the truck's dashboard, pulled the emergency brake, and the truck "took off," after which Mr. Buchanan saw her lying under the truck.

According to Mr. Buchanan, Ms. Wilkinson had been holding on to the "door jamb" when she fell, and the truck rolled over her ankles as it traveled down the driveway. Mr. Buchanan ran after the truck, jumped inside, and stopped the truck. Ms. Wilkinson allegedly sustained multiple injuries, including an open fracture of her left ankle, a right shoulder avulsion fracture, fractures of the tibia and fibula, and a left knee effusion.

The Wilkinsons sued Mr. Buchanan, asserting claims for negligence, damages, and loss of consortium.

Georgia Farm Bureau Mutual Insurance Company ("GFB"), Mr. Buchanan's homeowner's insurance company, asked a Georgia court to determine whether it was obligated to defend Mr. Buchanan in the Wilkinsons' suit against him.

The trial court granted summary judgment in favor of GFB, and the Wilkinsons appealed. They argued that the trial court had erred in granting summary judgment because the incident giving rise to Ms. Wilkinson's injury did not arise from the use of a motor vehicle.

The Appellate Court's Decision

The appellate court reversed.

In its decision, the appellate court explained that the phrase "use of a motor vehicle" in the GFB policy was not defined. The appellate court then said that whether Ms. Wilkinson's alleged injuries arose out of the use of Mr. Buchanan's truck turned on consideration of:

• The physical proximity of the injury site to the truck;
• The nature of the conduct that caused the situation of jeopardy; and
• Whether the truck was being used in the "plain and ordinary sense of the word."

Applying these principles, the appellate court ruled that the trial court had erred in determining that the truck was in "use" so as to exclude coverage for Ms. Wilkinson's alleged injuries.

The appellate court reasoned that it was true that the evidence showed that Mr. Buchanan's truck was at or near the location of the accident, that the accident was caused by Ms. Wilkinson pulling the truck's emergency brake, and that at the time of the accident, Mr. Buchanan and Ms. Wilkinson were examining its components.

The appellate court found, however, that the evidence failed to show that the truck was in "use" as a truck at the time of the accident. The appellate court pointed out that the truck was parked in Mr. Buchanan's driveway and had not been employed for any purpose at the time of Ms. Wilkinson's injury. The appellate court concluded that the parked truck "merely . . . was being inspected at the time of the accident" and it could not be said that it was in "use" as a vehicle at the time of Ms. Wilkinson's injuries.

The case is Wilkinson v. Georgia Farm Bureau Mutual Ins. Co., No. A19A1447 (Ga. Ct. App. Sept. 20, 2019).

Steven A. Meyerowitz is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. He is the director of the Insurance Coverage Law Center and editor-in-chief of journals on insurance law, banking law, bankruptcy law, energy law, government contracting law, and privacy and cybersecurity law, among other subjects. He may be contacted at smeyerowitz@meyerowitzcommunications.com.