Opinion
Shelby Law No. 67.
Opinion filed April 8, 1985.
From the Circuit Court of Shelby County, Tennessee. The Honorable Shepperson A. Wilbun, Judge.
AFFIRMED.
J. Cecil McWhirter WALSH, McWHIRTER WYATT Attorneys for Plaintiff.
Joseph P. Rutledge, Jr. RUTLEDGE RUTLEDGE Attorneys for Defendant and Third-Party Plaintiff/Appellee.
Fred P. Wilson and Steven R. Walker WILSON, McRAE, IVY, SEVIER, McTYIER AND STRAIN Attorneys for Third-Party Defendant/Appellant.
The plaintiff, George G. Beale, Jr., filed suit against the defendant, Randall P. Lawrence, alleging that he sustained property damage to his residence as a result of a fire that involved the automobile of defendant which was parked at the time in plaintiff's carport. The defendant filed a third-party complaint against State Farm Fire and Casualty Company, contending that he was covered under a home owner's policy issued by the third-party defendant. This appeal relates to the coverage question between Lawrence and State Farm.
The parties will be referred to as they appeared in the trial court or by their names as abbreviated.
Prior to August 10, 1980, Lawrence had been rooming with Beale at his home in Memphis. Lawrence owned a Volkswagon automobile, purchased in January 1980 for approximately $500.00. On one occasion the car stopped running and had to be pushed to the plaintiff's carport where it remained for several months. Lawrence used his other automobile for transportation and during this time did not run or attempt to repair the Volkswagon which did not have a current city sticker and which was not licensed for road use.
On August 10, 1980, Lawrence attempted to get the car started with the intention of moving it to his parents' home. He discovered a "crimp" in the fuel line and in his attempt to repair it he caused a bolt to break away so that gasoline spilled under the car. Lawrence immediately got out from under the car when the as began to spill. The battery charger was charging the battery at the time. Lawrence stated that the next thing he knew "a spark was flashed and the fire was everywhere." The fire spread from the automobile to the house where it caused extensive damage.
The plaintiff sued Lawrence to recover for the damage to the property. Lawrence instituted a third-party claim against State Farm for coverage under a home owner's policy. The policy in which Lawrence was a named insured excluded coverage for property damage "arising out of the ownership, maintenance, operation, use, loading or unloading" of any motor vehicle, except where the vehicle is "kept in dead storage on the residence premises." State Farm, as third-party defendant, answered that the vehicle was not in "dead storage" at the time of the fire and that the fire was the direct result of Lawrence's maintenance of the car. Lawrence moved for summary judgment against State Farm and State Farm moved for summary judgment against Lawrence. Lawrence's motion was granted; State Farm's was denied. State Farm appeals.
State Farm argues that the Volkswagon was not in dead storage and that even if it were in dead storage, Lawrence's attempts to repair it constituted "maintenance." The only question concerns the meaning of dead storage; the question of maintenance need not arise. The policy states:
This policy does not apply . . . to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of . . . (2) any motor vehicle. . . .
The policy further states, however, that the exclusion "does not apply to bodily injury or property damage occurring on the residence premises if the motor vehicle is . . . kept in dead storage on the residence premises." Thus, it is clear from the language of the policy that even though someone is performing maintenance on the car, if it is in dead storage, insurance coverage is not excluded. The two Florida cases cited by appellant, Indiana Insurance Co. v. Winston, 377 So.2d 718 (Fla.App. 1979) and Volkswagon Insurance Co. v. Dung Ba Nguyen, 405 So.2d 190 (Fla.App. 1981) are, therefore, inapposite because these cases do not deal with the dead storage provision.
The only question before us, then, is whether the Volkswagon was in dead storage at the time of the fire. The term is defined in Black's Law Dictionary as follows:
The storage, especially of an automobile in public garages, where automobiles not in use are to remain uninterruptedly for a time, sometimes for the season.
The only case on the subject of dead storage from a court in Tennessee isSharpe v. State Farm Fire and Casualty Co., 558 F.Supp. 10 (E.D. Tenn. 1982). Several of plaintiff's automobiles were found by a jury to have been in dead storage even though they were sometimes driven around the plaintiff's yard. The vehicles had no license plates and were not driven on the highway. Similarly here, the Volkswagon did not have a current city sticker and Lawrence used another vehicle for transportation.
State Farm points out that the definition in Black's Law Dictionary is derived from Hogan v. O'Brien, 206 N.Y.S. 831 (1924), which notes that "[s]ome of the storage was `dead', that is, cars not in use were deposited there, put away sometimes for the season. Other storage was `live', that is, the storage of cars in active daily use." 206 N.Y.S. at 832. Certainly here, where the car was inoperable for several months, the car was not in "daily use." It would appear that if the car was not in live storage, it could only be in dead storage.
Lawrence cites the case of Nationwide Mutual Fire Insurance Co. v. Allen, 314 S.E.2d 552 (N.C. App. 1984). In that case, defendant Allen was examining a motorcycle in the living room of his apartment when the vehicle caught fire damaging Allen's apartment and several others. Nationwide instituted a declaratory judgment action concerning an insurance policy with an exclusionary clause identical to the one in question here. The court in Allen affirmed the trial court and found that the motorcycle was in dead storage because it had been inoperable and unused for nearly six months. The court further found that the damage did not arise from either the maintenance or ownership of the motorcycle.
In Allen the court mentioned that the defendant did not intend to repair the motorcycle on that day. Rather he was examining the vehicle in order to make the repair at a later date. State Farm argues that theAllen case requires an examination of the owner's intent, contending that dead storage ceases when the owner works on the vehicle with the intent of driving it that day. The Allen court, however, never stated that intent was a factor in determining dead storage. Further, in the Sharpe case, the fact that the insured sometimes drove his automobiles around his yard did not remove them from dead storage. It follows that simple movement of the vehicle does not affect its status. Even if this were the case, Lawrence never succeeded in moving his Volkswagon on the day of the fire. Moreover, if mere intent were the test, Lawrence appears to have intended nothing more than to move the Volkswagon from dead storage at Beale's house to dead storage at this parents' house. We do not decide this case on the basis of intent, but rather on the meaning and applicability of dead storage as gleaned from all of the facts and circumstances surrounding this incident.
The cases of Monroe v. Greenhoe, 54 Mich. 9, 19 N.W. 569 (1884) andHood v. Judkins, 61 Mich. 575, 28 N.W. 689 (1886), cited by State Farm, deal with the general term "storage." Neither case discusses "dead storage." These concern storage of lumber in relation to tax statute. We do not feel they are controlling in the facts before us.
We hold that the trial court was correct in finding under the facts of this case that the vehicle was in dead storage and that the coverage applies. The judgment is affirmed. Costs are adjudged against the third-party defendant, State Farm.