Allstate Indemnity Co. v. Denison

Pope, Judge. In this declaratory judgment action, appellant Allstate sought a determination that it was not obligated to pay appellee Ellen M. Den [391] ison, as widow and administratrix of her deceased husband’s estate, personal injury protection benefits under an automobile insurance policy in effect at the time of Mr. Denison’s death. The stipulated and undisputed facts were as follows. Mr. Denison was found dead of carbon monoxide poisoning in his Chevrolet van parked in Greensboro, North Carolina, on January 30, 1986. The source of the carbon monoxide was a propane fuel heater devised by Denison from a propane lantern on which he had replaced the glass globe with an open peanut can. The device was placed in a five-gallon bucket on the floor of the van. Denison was an independent contractor who did mobile home repair work in various locations in several southeastern states for a Georgia company. Denison purchased the van, which was insured by Allstate, in connection with his work and outfitted the entire rear portion with shelving and racks in which to transport and store tools, supplies and materials used in his repair jobs. Between the two front seats of the van Denison built a storage compartment which was approximately the height of the seats. As he was responsible for paying his own expenses, including lodging, to save money on his out-of-town trips on some occasions Denison would sleep in his van overnight by lying across the two front seats and storage compartment. During cold weather he used the propane heating device to warm the van while he slept. Denison’s auto insurance policy provided for no-fault benefits “in accordance with the Georgia Motor Vehicle Accident Reparations Act” and “only when bodily injury, sickness, disease or death is caused by an accident arising from the use of a motor vehicle as a motor vehicle.” The statute requires insurers to “pay basic no-fault benefits ... for economic loss resulting from . . . [accidental bodily injury sustained ... by the insured . . . while occupying any motor vehicle. . . .” (Indention omitted.) OCGA § 33-34-7 (a) (1). “ ‘Accidental bodily injury’ means bodily injury, sickness, or disease, including death at any time resulting from bodily injury, sickness, or disease, arising out of the operation, maintenance, or use of a motor vehicle which is accidental as to the person claiming basic no-fault benefits. . . .” OCGA § 33-34-2 (1). “ ‘Operation, maintenance, or use of a motor vehicle’ means operation, maintenance or use of a motor vehicle as a vehicle.” (Emphasis supplied.) OCGA § 33-34-2 (9). See Cole v. Allstate Ins. Co., 173 Ga. App. 454 (326 SE2d 817) (1985). Allstate moved for summary judgment on the ground that the use of a van which was not constructed for normal sleeping purposes as overnight lodging was a real and substantial departure from the normal and intended purpose of the vehicle; that thus Denison’s death did not arise from the use of the van as a motor vehicle; and, therefore, no-fault coverage did not exist. Mrs. Denison also moved for summary judgment, relying on the construction of the rule made [392] in Southeastern Fid. Ins. Co. v. Stevens, 142 Ga. App. 562, 563-564 (1) (236 SE2d 550) (1977), “that the term ‘arising out of [the use or operation of a vehicle] does not mean proximate cause in the strict legal sense, nor require a finding that the injury was directly and proximately caused by the use of the vehicle, nor that the insured vehicle was exerting any physical force upon the instrumentality which was the immediate cause of the injury [and that] almost any causal connection or relationship will do. ...” Insofar as “[e]ach case turns on its precise individual facts,” id. at 564, Mrs. Denison cited Kicklighter v. Allstate Ins. Co., 175 Ga. App. 586 (333 SE2d 670) (1985), as supporting authority. In Kicklighter, this court found that the insured’s injuries from a fire occurring while he was sleeping in his van, which had been modified and renovated to include cabinets, a sink and a bed, arose from the use of his vehicle while he was occupying it and was a covered insured event. Based on the law and facts recited above the trial court granted Mrs. Denison’s motion for summary judgment and denied Allstate’s motion. Allstate appeals. Held: We find the facts of this case are fundamentally distinguishable from those of Kicklighter v. Allstate Ins. Co., supra. In Kicklighter, the camper-van had been outfitted to include cabinets, a sink and a double bed at the time the policy was issued. One of the “visual and patent” purposes of the multi-purpose vehicle at the time it was insured was “for camping in, and it was being used in a regular way for that second pre-ordained purpose. Its use as a camper-van was intended and contemplated by insurer and insured.” Id. at 588. By contrast, transportation and storage were the only “visual and patent” purposes of the particular multi-purpose vehicle which is the subject of this case. The use of this van for overnight lodging was a substantial departure from its normal, intended and insured purposes. The renovations of the van in this case were made after the policy was issued. Even after the owner built the storage compartment between the two seats, which he used at night as a bed, a visual inspection would not have disclosed the van was to be used for regular overnight lodging. We agree with the dissenting opinion that drivers should not be discouraged from using their vehicles for occasional sleeping and resting in order to avoid the danger of fatigue on the highway. Occasional resting is an obvious and foreseeable use of any vehicle primarily used for transportation and, therefore, should be an insured use of such a vehicle. However, the transformation of an automobile, van or any other vehicle into a place of lodging, particularly by the installation of a dangerous instrumentality such as a propane heater, is a substantial departure from the normal and intended purpose of a motor vehicle. To hold otherwise would, as a practical matter, transform the auto [393] mobile insurer into a premises insurer. It follows that the trial court erred in granting Mrs. Denison’s motion for summary judgment and in denying that of Allstate. Judgment reversed. Birdsong, C. J., Banke, P. J., Carley and Beasley, JJ., concur. Deen, P. J., McMurray, P. J., Sognier and Benham, JJ., dissent.