On one day that Mr. Davenport drove Ms. Billings, he pulled into a parking space at the post office and the driver in the adjacent parking space opened his car door into Mr. Davenport's path. At the sound of impact with the other car, Mr. Davenport later said, he jerked his head around to see what had happened and injured his neck doing so.

Mr. Davenport subsequently sued the driver of the other car and served a copy of the complaint on Haulers Insurance Company, his own uninsured motorist carrier.

Relying on a policy exclusion for a car "being used as a public or livery conveyance," Haulers moved for summary judgment. The trial court denied Haulers' motion, finding that there was a genuine issue of fact as to whether Mr. Davenport had been operating his vehicle for hire at the time of the accident.

Haulers appealed.

The Appellate Court's Decision

The appellate court affirmed.

In its decision, the appellate court explained that because the Haulers policy did not define the terms "public or livery conveyance," it would consider the "usual and common meaning of those terms."

Finding the "ordinary meaning" of the policy language to be "unambiguous," the appellate court then held that, to fall within the exclusion, "the insured must present his services indiscriminately to the general public for hire."

Applying that definition, the appellate court then concluded that the record contained "no evidence" that Mr. Davenport's conduct was such that his vehicle met the definition of public or livery conveyance. The appellate court reasoned that there was "no evidence that [Mr.] Davenport held himself out indiscriminately to the public, or operated a business for hire" but that the evidence "merely" showed that he "occasionally offered a specific friend and neighbor a ride for a fee."

Accordingly, the appellate court concluded, absent evidence that Mr. Davenport used the vehicle "indiscriminately to transport members of the general public for hire, or regularly rented out his vehicle for hire," Mr. Davenport was not operating his vehicle either as a livery or a public conveyance at the time of the accident as required to trigger the policy exclusion.

The case is Haulers Ins. Co. v. Davenport, No. A17A1808 (Ga. Ct.App. Feb. 2, 2018).

FC&S Legal Comment

Other state courts have considered similar exclusions and defined a public or livery conveyance as a vehicle held out to the general public for hire and that was used indiscriminately in that manner. See, e.g., Elliott v. Behner, 96 P.2d 852 (Kan. 1939) ("Th[e] word [public] when used in connection with the carrying of passengers implies the holding out of the vehicle to the general public, for carrying passengers for hire. . . . Furthermore, the word "livery" when used in such a connection has about the same meaning.").

In Smith v. Stonewall Cas. Co., 188 S.E.2d 82 (Va. 1972), the Virginia Supreme Court found a similar insurance exclusion did not apply to a driver who was transporting co-workers to the same location for work because "a vehicle is a public or livery conveyance if it is held out to the general public for the carrying of passengers for hire and is used indiscriminately to carry the public." See, also, St. Paul Mercury Indem. Co. v. Knoph, 87 N.W.2d 636 (Minn. 1958) ("the primary factor in determining whether a vehicle is used as a public or livery conveyance depends upon whether the transportation is generally available to the public rather than whether any money has been or will be paid.")

In Morris v. Buttney, 606 N.W.2d 626 (Wisc. 1999), the Wisconsin Supreme Court held that, for the exclusion to apply, "the insured vehicle must be held out to the general public for carrying people or property and must be used as such at the time of the accident." See, also, U. S. Fidelity and Guar. Co. v. American Interinsurance Exchange, 718 S.W.2d 955 (Ky. Ct.App. 1986) (transportation services provided to select elderly individuals through community service agency on days of agency's choosing and to locations of agency's choosing were not public or livery conveyances).

More recently, an appellate court in Ohio reconsidered these definitions. See, Niemeyer v. W. Reserve Mutual Cas. Co., No. 12-09-03 (Ohio Ct.App. 2010). In that case, the appellate court concluded that a bus chartered for a baseball team was a livery conveyance because it was a business that regularly rented vehicles to the public. The appellate court noted that, although it was chartered by the team and thus not held out for public use at the time, it generally was available for public rental at other times. See, also, Allstate Ins. Co. v. The Normandie Club, 221 Cal.App.2d 103 (Cal. Ct.App. 1963) (coverage excluded for bus that transported patrons of a public club because the group transported was selected indiscriminately from the whole community).