United States Court of Appeals Eleventh Circuit No 94 8989 UNITED STATES FIDELITY GUARANTY COMPANY Plaintiff Appellee v PARK N GO OF GA INC Defendant Appellant Oct 10 1995 Appeal from the United States District Court for the Northern District of Georgia No 1 93 cv 1541 JEC Julie E Carnes Judge Before HATCHETT and EDMONDSON Circuit Judges and GIBSON Senior Circuit Judge PER CURIAM Park N Go appeals the district court s grant of summary judgment in favor of United States Fidelity Guaranty in this declaratory judgment action Because resolution of this case involves questions of Georgia law which are dispositive but unanswered by the precedent of the Supreme Court of Georgia we defer our decision in this case pending certification of the following question to the Supreme Court of Georgia pursuant to GA CONST art VI 6 para 4 O C G A 15 2 9 and Rule 37 of the Supreme Court of Georgia See Polston v Boomershine PontiacGMC Truck Inc 952 F 2d 1304 11th Cir 1992 We submit the following facts and analysis for consideration by the Supreme Court of Georgia CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF GEORGIA PURSUANT TO ARTICLE VI SECTION VI PARAGRAPH IV OF THE GEORGIA CONSTITUTION TO THE SUPREME COURT OF GEORGIA AND THE HONORABLE JUSTICES THEREOF STYLE OF THE CASE The case is styled this way Park N Go of Georgia Inc Appellant versus United States Fidelity and Guaranty Company Appellee Case No 94 8989 filed in the United States Court of Appeals for the Eleventh Circuit on appeal from the United States District Court for the Northern District of Georgia FACTS Park N Go of Georgia Inc is a Georgia corporation that operates a parking shuttle service near Atlanta Hartsfield International Airport The parking facility consists of a 13 acre parking lot surrounded by a fence six or seven feet high An office building and entrance and exit gates are located at the front of the lot Park N Go operates with a limited staff and without a security system or security personnel To enter the parking facility a customer drives his vehicle up to a ticket machine located at the entrance gate and takes a bar coded ticket stamped with the date and time of entry The customer then drives into the parking lot finds a parking space parks and locks his vehicle and takes the keys with him An airport shuttle takes the customer to the appropriate airport terminal No other way exists for a customer lawfully to enter the Park N Go lot Upon returning a Park N Go shuttle transports the customer from the terminal to the place where his vehicle is parked To leave the parking facility the customer drives his vehicle up to a cashier s window located next to the exit lane presents the bar coded ticket and pays the amount calculated by a fee computer This contact is normally the only interaction a customer has with a Park N Go employee The customer then exits the facility No other way exists for a customer lawfully to leave the Park N Go lot In 1991 Park N Go contracted with United States Fidelity Guaranty Co USF G to insure Park N Go s business USF G issued Policy No 1MP1334231140 effective until November 1992 The policy included several kinds of coverage Portions of the policy at issue in this case include 1 the Garage Coverage Part Liability Coverage with a liability limit of 1 million 2 the Garage Coverage Part Garage Keepers Coverage with a liability limit of 250 000 and 3 the Commercial General Liability Coverage with a liability limit of 1 million While this policy was in effect torrential rains fell in the Atlanta metropolitan area and the Park N Go parking lot was flooded Over 200 automobiles parked in the lot were damaged A group of Park N Go s patrons filed in the state court in Fulton County Georgia a class action suit against Park N Go alleging that a bailment relationship existed alleging that Park N Go was negligent and seeking to recover for damages to their vehicles caused by the flooding USF G then filed in the United States District Court a declaratory judgment action against Park N Go on the insurer s obligations under the insurance policy Park N Go answered the complaint disputing USF G s interpretation of the contract USF G then moved for summary judgment asserting that its obligation was limited to 250 000 as stated in the Garage Keepers Coverage portion of the policy instead of the 1 million limit provided in the Garage Liability Coverage and the Commercial General Liability Coverage portions of the policy The district court granted USF G s Motion for Summary Judgment The court concluded that because the autos parked and damaged in defendant s lot were necessarily in the care of defendant that provision of the policy excluding from coverage personal property in the care custody or control of the insured applies The district court noted that Georgia law is unclear on the issue of bailment and unclear on whether a disclaimer on the ticket to park is valid but the court still concluded that a bailment relationship existed between Park N Go and its patrons and concluded that the mere existence of a printed disclaimer on the parking ticket does not operate to rebut the statutory presumption of a bailment relationship between the defendant and its patrons ARGUMENTS PRESENTED A Whether a Bailment Relationship Existed Park N Go argues that the Garage Liability and Commercial Liability Coverage provisions of the policy cover the damages caused to its patrons vehicles as a result of the flooding and Park N Go says that the exclusion from those provisions for vehicles within Park N Go s care custody or control does not apply because those vehicles were not within Park N Go s care custody or control particularly considering that no bailment relationship existed In concluding that the vehicles were in Park N Go s care custody or control the district court considered 1 the specific terms of the insurance policy and 2 Georgia law on the issues of bailment and disclaimer First the court noted that the Garage Keepers portion of the policy provided coverage for covered autos left in the insured s care while the insured is attending servicing repairing parking or storing it in its garage operations From this the district court concluded that whenever the insured is parking or storing an auto the auto necessarily is in the care of the insured and the care component of the care custody or control exclusion is met Second the district court concluded that if the terms of
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