Gregory v. Audubon Indemnity Co.
| Docket Number: | 2006-CA-00267-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 03-13-2007 Opinion Author: ROBERTS, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Insurance - Third party beneficiary - Auto exclusion - Parking exception Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE AND CARLTON, JJ. Non Participating Judge(s): BARNES, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - INSURANCE |
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| Trial Court: |
Date of Trial Judgment: 01-06-2006 Appealed from: LEE COUNTY CIRCUIT COURT Judge: Thomas J. Gardner Disposition: SUMMARY JUDGMENT FOR THE APPELLEE Case Number: 00-190(G)L |
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| Party Name: | Attorney Name: | |||
| Appellant: | NEIL A. GREGORY AND SHERRY A. GREGORY |
JEFFREY DEAN LEATHERS |
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| Appellee: | AUDUBON INDEMNITY COMPANY | DENISE WESLEY, EDWARD J. CURRIE |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Insurance - Third party beneficiary - Auto exclusion - Parking exception |
| Summary of the Facts: | After being injured at the Sand Creek Dirt Pit, Neil Gregory and his wife, Sherry, sued numerous parties, both individually and as their respective business entities, one of which was Audubon Insurance Group, the insurance company that issued a commercial general liability insurance policy to Hodges Construction Company, Inc. The Gregorys claimed that they were entitled to compensation as a third party beneficiary of Hodges Construction Company’s policy with Audubon. Audubon filed a motion for summary judgment which the court granted. The Gregorys appeal. |
| Summary of Opinion Analysis: | Audubon argues that because an employee of Hodges Construction was driving a dump truck leased to Hodges Construction when he backed into Gregory, the Gregorys are not entitled to recover under the “auto exclusion” of the policy. Pursuant to the “auto exclusion,” Audubon will not pay benefits for “‘bodily injury’ or ‘property damage’ arising out of the ownership, maintenance, use or entrustment to others of any . . . ‘auto’ . . . Owned or operated by or rented or loaned to any insured. Use includes operation and ‘loading and unloading.’” The Gregorys argue that they are entitled to coverage by virtue of the “parking exception” to the “auto exclusion” which states that the “auto exclusion” does not apply to “parking an ‘auto’ on or on the ways next to, premises you own or rent, provided the ‘auto’ is not owned by or rented or loaned to you or to the insured.” There is no dispute as to whether the driver of the dump truck was acting within the scope of his employment or that he was performing duties related to the conduct of Hodges Construction’s business. Since the employee, an insured, used Hodges Construction’s dump truck, an “auto” as contemplated by the policy language, when he backed into Gregory, the language of the “auto exclusion” applies. The parking exception specifically states that the exception does not apply to vehicles loaned to the insured. Since the dump truck driven by the employee was loaned or leased to Hodges Construction at the time of the accident, the exception does not apply. Moreover, the parking exception only applies to parking an auto on premises Hodges Construction either owns or rents. There is no evidence to suggest that Hodges Construction owned or rented the Sand Creek Dirt Pit. |
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