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Motors Ins. Co. v. Auto-Owners Ins. Co.

Defendant provided primary coverage for an accident involving a car being test-driven by an employee of its insured, regardless of whether the employee was acting within the scope of his employment at the time of the accident.

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The primary issue in this appeal involves construction of the automobile insurance provision set forth in OCGA § 33-34-3 d which provides in general that, where a car owned by a car dealer engaged in the business of selling new or used cars is involved in an accident while being test-driven by a person who is neither the dealer-owner nor an employee of the dealer-owner, the test-driver’s private automobile policy affords primary coverage and the dealer-owner’s automobile policy affords excess coverage. It is undisputed that the car at issue was owned by a dealer engaged in the retail sale of cars and that the car was involved in an accident while it was being test-driven by an employee of the dealer who wished to purchase the car.1 Motors Ins. Co., which provided insurance for the dealer’s automobile inventory, contends that, even though an employee of the dealer was test-driving the car when the accident occurred, § 33-34-3 d should be construed to impose primary coverage on the employee’s private automobile insurer, Auto-Owners Ins. Co., because the employee was not acting in the course of his employment, but was test-driving the car on a personal mission as a customer of the dealer.

1. The statute at issue provides as follows:

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