Canal Insurance v. Merchant ( 1997 )

483 S.E.2d 311 (1997) 225 Ga. App. 61

CANAL INSURANCE COMPANY
v.
MERCHANT et al.

No. A96A2063.

Court of Appeals of Georgia.

February 14, 1997. Reconsideration Denied March 4, 1997.

McNatt, Greene & Thompson, Troy L. Greene, Vidalia, for Appellant.

Killian & Boyd, Robert P. Killian, Brunswick, for Appellees.

SMITH, Judge.

This vehicular accident litigation appears for the second time before this Court. In Northbrook Property, etc., Ins. Co. v. Merchant, 215 Ga.App. 273, 450 S.E.2d 425 (1994), we addressed issues concerning uninsured motorist coverage under OCGA § 33-7-11(b)(1) and setoff for workers' compensation benefits.^[1] In this appeal, we must apply the principles established in Travelers Indem. Co. v. Maryland Cas. Co., 190 Ga.App. 455, 379 S.E.2d 183 (1989), and Southern Guaranty Ins. Co. v. Premier Ins. Co., 219 Ga.App. 413, 465 S.E.2d 521 (1995), to determine which of two uninsured motorist carriers provides "primary" coverage. For the reasons stated below, we conclude that the trial court erred in designating appellant as the primary carrier, and we reverse.

The facts relevant to our analysis are not in dispute. Appellant Canal Insurance Company insured an independently-owned tractor-trailer that broke down while hauling chicken feed to Claxton Poultry Company. Claxton dispatched two company vehicles, both insured by Northbrook Property & Casualty Company, and four individual appellees, all employees of Claxton, to transfer the chicken feed from the disabled vehicle. While the transfer was in progress, a minimally insured and intoxicated driver drove into the transfer site, injuring the individual appellees.

When more than one source of uninsured or underinsured motorist coverage is available, claimants may "stack" the policies, but the priority of the multiple UM carriers must be determined. To assist in this task, Georgia courts have used two tests: the "receipt of premium" test and the "more closely identified with" test. Southern Guaranty, supra, 219 Ga.App. at 413, 465 S.E.2d 521; Travelers, supra, 190 Ga.App. at 455-456, 379 S.E.2d 183. Because it is undisputed that appellees did not pay a premium for either policy, the first test is inapplicable. Travelers, supra, 190 Ga.App. at 455, 379 S.E.2d 183. We must therefore examine appellees' status, or their relationship to the policies of insurance, to determine the policy with which they are more closely identified and hence which policy provides primary coverage. Southern Guaranty, supra, 219 Ga.App. at 414, 465 S.E.2d 521.

The trial court concluded that Canal's insured vehicle was "more closely identified with" the injured parties because it was the "center of all the activities and the reason for all other parties being at the scene." But the "more closely identified" test does not focus on the relationship between the circumstances of the collision and a particular policy of insurance; it looks instead to the relationship of the injured party to the policy. As noted in both Travelers and Southern Guaranty, supra, this distinction "addresses itself to the relationship of the injured plaintiff to the policy rather than the circumstances of the injury to the policy. This status rather than incident context controls." Travelers, supra, 190 Ga.App. at 457, 379 S.E.2d 183; see also Southern Guaranty, supra, 219 Ga.App. at 414, 465 S.E.2d 521.

Applying the test correctly, the relationship between the individual appellees and Canal clearly does not meet this standard. Other than the circumstances of the injury and appellees' status as injured persons claiming under Canal's policy, no relationship exists between Canal and appellees. The Northbrook policy, in contrast, was issued to appellees' employer, Claxton; appellees therefore have a connection with that policy through their employer.

In Travelers and Southern Guaranty, the competing considerations were between an individual or family relationship with a policy and an employment relationship with a policy. In both those cases, the individual or family relationship was considered to be more closely identified with the claimant. Here, in contrast, the competing considerations are an employment relationship with the policy and no relationship at all, whether individual, family, contractual, or employment. Under these circumstances, the "more closely identified" test establishes Northbrook, rather than Canal, as the primary uninsured motorist carrier, and the trial court erred in holding otherwise.

Judgment reversed.

ANDREWS, C.J., and POPE, P.J., concur.

NOTES

[1] In the previous appearance of this case, we held that the trial court correctly denied summary judgment to Northbrook on the issue of whether the individual appellees are "insureds" under Northbrook's policy. We concluded that the facts present a jury issue as to appellees' "use" of the insured vehicles at the time of the collision. See Northbrook, supra, 215 Ga.App. at 274-275(1), 450 S.E.2d 425.