This appeal involves a dispute over the amount of excess insurance coverage payable under OCGA § 33-34-3 d, which provides in general that, where a new or used car dealer provides a customer with a dealer-owned car to test drive or to use as a loaner while repairs are done on the customer’s car, and the customer is involved in an accident while driving the dealer’s car, the customer’s private automobile insurance provides primary coverage and the insurance policy covering the dealer’s car provides excess coverage. Specifically, subsection d provides: Each policy of liability insurance issued in this state providing coverage to motor vehicles owned by a person, firm, or corporation engaged in the business of selling at retail new and used motor vehicles shall provide that, when an accident involves the operation of a motor vehicle by a person who is neither the owner of the vehicle involved in the accident nor an employee of the owner and the operator of the motor vehicle is an insured under a complying policy other than the complying policy insuring the motor vehicle involved in the accident, primary coverage as to all coverages provided in the policy under which the operator is an insured shall be afforded by the liability policy insuring the said operator and any liability policy under which the owner is an insured shall afford excess coverages. If the liability policy under which the owner is an insured and which affords excess coverage contains a provision which eliminates such excess coverage based on the existence of coverage provided in the operator’s liability policy, such provision of the owner’s liability policy shall be void. The accident to which subsection d applies in this case occurred on October 1999 when a car driven by Tracy Hendrix collided with a car driven by Brad Fahey. Fahey was driving a car owned by a car dealer, Marietta Mitsubishi, and loaned to him while his car was being repaired. USAA Casualty Insurance Co. provided coverage on Fahey’s car, and Universal Underwriters Insurance Co. provided coverage on the loaner car owned by Marietta Mitsubishi. Hendrix, acting individually and on behalf of her minor daughter who was a passenger in the car, sued Fahey for injuries suffered by her and her daughter, and followed that suit with a declaratory judgment action against Universal seeking a declaration that a provision in the Universal policy limiting the policy’s excess insurance coverage was void under the provisions of subsection d. This appeal is from the trial court’s grant of summary judgment in favor of Universal in the declaratory judgment action and the denial of Hendrix’s motion for summary judgment in that action. Fahey’s USAA policy, which provided primary insurance coverage under subsection d, had motor vehicle liability coverage in excess of the statutory minimum limits in effect on the date of the accident. Marietta Mitsubishi’s Universal policy, which provided excess coverage under subsection d, provided motor vehicle liability coverage on the date of the accident in excess of the statutory minimum limits on cars being driven by some classes of insureds defined in the policy. For cars driven by these insureds, the liability insurance limit was $300,000 with additional umbrella coverage of $6,000,000. On the other hand, Fahey as a customer of the dealer driving a loaner car by permission was defined under the policy as being within a separate class of insureds for whom motor vehicle liability coverage was only a portion of the above higher limit set for cars driven by other insureds. The policy limited liability insurance on the loaner car driven by Fahey as follows: The most we will pay is that portion of such limit needed to comply with the minimum limits provision law in the jurisdiction where the occurrence took place. When there is other insurance applicable, the most we will pay is $5,000. Hendrix contended that the $5,000 coverage limit had the effect of eliminating excess coverages on the loaner car driven by Fahey and was therefore void under the last sentence of subsection d, which provides:
If the liability policy under which the owner is an insured and which affords excess coverage contains a provision which eliminates such excess coverage based on the existence of coverage provided in the operator’s liability policy, such provision of the owner’s liability policy shall be void. According to Hendrix, subsection d of § 33-34-3 required that the Universal policy be construed to provide $6,300,000 of coverage on the loaner car driven by Fahey rather than $5,000 of coverage. The trial court rejected this contention and denied Hendrix’s motion for summary judgment seeking a declaration to that effect. Finding that the provision limiting liability coverage to $5,000 was valid, the trial court granted Universal’s motion for summary judgment.
