Archive for March, 2011

“Regular Use” Provision Bars Coverage for Non-Incidental Use of Borrowed Vehicle

The Georgia Court of Appeals recently held that the “regular use” exclusion in an insured’s automobile insurance policy barred coverage for an accident that occurred while the insured was using a friend’s car. State Automobile Mutual Insurance Co. v. Todd, 2011 WL 753282 (Ga.App., 2011).

In Todd, the insured had an automobile insurance policy that specifically excluded from liability coverage “[a]ny vehicle, other than ‘your covered auto,’ which is: a. owned by you, or b. furnished or available for your regular use.” On August 16, 2003, while driving her friend Ernest Camden’s car, the insured was involved in a collision with another vehicle operated by Steve Purvis. The insured had borrowed Camden’s car to go on vacation and was returning from a nine-day trip when the accident occurred. She had been staying with Camden and did not have her own vehicle, so Camden allowed her to use his car. Because Camden had certain health issues, the insured used his car to run all of his errands in exchange for food and other necessities. Following a divorce earlier that year, the insured’s husband gave her a truck pursuant to a court order, but the insured preferred to drive Camden’s car. At times, the insured parked the car at her house and drove it while Camden was out of town. When asked whether she drove the car daily, the insured replied: “Regularly, but maybe not a daily basis, but regularly.”

As a result of the accident, Purvis’s passenger, Anthony Bonner, sustained injuries and subsequently sued the insured. The insurer filed a declaratory judgment action seeking a ruling that it was not obligated to defend the insured because Camden’s car was available to the insured for her regular use and was thus excluded from coverage. The trial court denied the insurer’s motion for summary judgment.

The Georgia Court of Appeals reversed since the purpose of the “non-owned regular use provision is to cover occasional or incidental use of other cars without the payment of an additional premium, but to exclude the habitual use of other cars, which would increase the risk on the insurance company without a corresponding increase of the premium.” The covered use has also been described as “casual” and “infrequent,” while “regular use” has been held to suggest a “principal (though not necessarily exclusive) use.” Applying this reasoning and definition, the Court held that the insured, by her own admission, regularly used Camden’s car. Therefore, the insurer was not obligated to defend the insured.

For more information, please contact Denny Brown at (404) 633-9230.

Attorney General Proposes Bill Overhauling Open Records and Open Meetings Acts

Attorney General Sam Olens recently filed legislation (H.B. 397) to revise state laws on public access to government records and meetings. Changes to the Open Meetings Acts would define gatherings of more than two members but less than a quorum of a public body as a public meeting, require public votes on land purchases and hirings, and mandate the recording of minutes in executive sessions so that they could be viewed in camera by a judge if a violation of the Act is alleged. Access to executive sessions is currently closed to the public. A change to the Open Records Act would require an agency facing a voluminous document request to provide what records it can in three days while continuing to work on the remainder of the request.

Fines for violations of either Act would increase to $1,000.00 for the first violation and $2,500.00 for subsequent violations within one year. The current fines are $100.00 for a violation of the Open Records Act and $500.00 for a violation of the Open Meetings Act. Another proposed change to the Open Records Act would allow agencies to collect payment in advance for public records costing $500.00 or more to produce and take away the option of making requests orally. There is also a provision that allows agencies to charge requesters for redaction of documents.

Perhaps the most significant proposed amendment would prohibit the use of the Open Records Act to obtain documents in civil or administrative litigation. Currently, many attorneys rely on the Open Records Act to obtain public records instead of the formal discovery process because it is more efficient. This amendment would protect government entities from potential harassment and unchecked and overbroad requests in the event they are dismissed as a defendant in a lawsuit.

Overall, the proposed amendments to both Acts favor government entities. Olens said revisions of the bill would continue as he engages in more discussions with media, legal, and government representatives. In order to survive, the bill must pass out of committee by Wednesday, March 16, 2011.

UPDATE (3/18/2011): The bill did not pass out of the House Judiciary Committee, as Olens decided to halt the proposed legislation in order to give government agencies, attorneys, and media representatives more time to render their opinions. Olens also plans to call hearings on the bill this summer when the General Assembly reconvenes to discuss redistricting and reapportionment.

For more information, please contact T.K. Haff at (404) 633-9230.

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