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 Pontiac-GMC

Truck,   Inc.,   

  (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

     *
      Honorable John R. Gibson, Senior U.S. Circuit Judge for the
Eighth Circuit, sitting by designation.
     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 the

contract itself did not sufficiently define the terms, Georgia law

of bailment would apply to give meaning to the phrase "care,

custody or control."      The court noted that, although the law of

bailment is not absolutely clear on the question, Georgia statutory

law provides that "[t]he relationship of the owner of an automobile

and the owner of the garage in which the automobile is stored is

that of bailor and bailee."     See O.C.G.A. § 44-12-77 (1982).

     The district court rejected Park 'N Go's argument that its

parking facility was not sufficiently similar to an enclosed garage

for the statutory presumption of a bailment relationship created by

section 44-12-17 to apply.     Instead, the court noted that nothing

in the language of the statute indicated that a distinction should

be made between parking structures and parking lots and that the

cases decided under the statute did not distinguish between parking
facilities that are buildings and those which are enclosed lots.

See generally, Goodyear Clearwater Mills v. Wheeler, 77 Ga.App.

570, 

(1948). The district court therefore, concluded

that Park 'N Go was a bailee and again concluded that the vehicles

parked in the lot were in Park 'N Go's care, custody, or control.

     Park 'N Go argues that section 44-12-17 applies only to

"garages" and is inapplicable to a parking facility where a patron

self-parks in an open setting.    Park 'N Go also asserts that it

made no representation about the standard of care it would provide

for the vehicles parked in its lot, that it provided no security

system or personnel, and that it had no control over the vehicles

because the vehicles were locked, and the keys were in the custody

and control of the owners.   Park 'N Go contends that, because the

law of Georgia is unsettled on this issue, the question should be

certified to the Georgia Supreme Court for resolution.

     USF & G responds that nothing is ambiguous in the exclusion

for property in the "care, custody or control" of the insured and

that the phrase must be given the plain and ordinary meaning of the

terms used.   USF & G contends that Park 'N Go exercised care,

custody, or control over the vehicles parked in its facility by

limiting access to them with a six to seven feet high fence that

enclosed the facility and by requiring that those who attempted to

leave the facility present a ticket and pay a parking fee or fill

out a lost ticket form and provide further identification and proof

of ownership of the vehicle.

     While it may possibly be true that the phrase "care, custody

or control" itself presents no ambiguity in definition, whether the
relationship between Park 'N Go and its patrons falls within that

definition—which might be, as the district court noted, synonymous

with the concept of bailment as it has been developed in the

Georgia state courts—does appear not to have been settled by

presently existing Georgia law.       The state law on the issue of

bailment involved in this case is unclear.     We agree that it would

be best for the Supreme Court of Georgia to first address the

questions of whether or not a bailment relationship existed and to

what extent, if any, the law of bailment determines whether the

$250,000 limit applies.

B. Whether the Disclaimer is Valid:

       Again arguing that it was no bailee and that the pertinent

vehicles were not in its care, custody, or control, Park 'N Go says

that, even if section 44-12-77 does apply to open lots, Park 'N Go

preempted any presumption of bailment created in section 44-12-77

by including a disclaimer on the back of the ticket to park given

to each customer.1

       The district court rejected this disclaimer argument, writing

that, "although the Georgia cases are not in agreement as to

whether such disclaimers are valid, the trend is to uphold the

disclaimer only when there is evidence that the bailor was aware of

it."       The district court found that no evidence existed that the

disclaimer on the back of the parking ticket was brought to the

attention of the patrons, either upon entering or leaving the

       1
      The disclaimer on the back of the ticket sets out these
words: "This ticket must be presented to the cashier on leaving
the parking area. Charges are for use of parking space only.
This company assumes no responsibility for loss through fire,
theft, collision or otherwise to the car or contents."
parking facility.    The district court concluded, therefore, that

"the mere existence of a printed disclaimer on the parking ticket

does not rebut the statutory presumption of a bailment relationship

between [Park 'N Go] and its patrons."

     Georgia law is also unclear on this issue, and we leave for

consideration by the Supreme Court of Georgia the questions of

whether the disclaimer was valid to remove from Park 'N Go's "care,

custody or control" vehicles that otherwise might be considered to

have been within Park 'N Go's "care, custody or control."

C. Contractual Interpretation and Intention of the Parties:

     Park 'N Go argues that, even if the vehicles parked in the lot

were in Park 'N Go's "care, custody or control" as the terms are

understood   in   their   ordinary    usage   or   because    a    bailment

relationship existed and defines the phrase, the "care, custody or

control" exclusion does not apply.      Park 'N Go says that, despite

the plain language of the contract, application of the plain

language would achieve a result contrary to the intention of the

parties in entering into the insurance contract.              Park 'N Go

contends that, because all of its business (of which USF & G was

aware)   consisted   of   operating   the   airport   parking     facility,

exclusion from liability coverage of all vehicles in Park 'N Go's

care, custody, or control would nullify the liability coverage (for

which Park 'N Go paid) on all vehicles parked in its lot and render

meaningless the liability provisions of the policy.

     In Georgia, insurance policies are governed by ordinary rules

of contract construction.     Chicago Title Ins. Co. v. Citizens & S.

Natl. Bank, 

, 1494 (N.D.Ga.1993).            The rules of
contract   interpretation   are   statutory,   and   construction   of   a

contract is a question of law for the court.     See O.C.G.A. §§ 13-2-

1 through 13-2-4.     Georgia law places much importance upon the

intent of the parties in entering into a contract.       Section 13-2-3

of the Georgia Code provides:

     The cardinal rule of construction is to ascertain the
     intention of the parties. If that intention is clear and it
     contravenes no rule of law and sufficient words are used to
     arrive at the intention, it shall be enforced irrespective of
     all technical and arbitrary rules of construction.

O.C.G.A. § 13-2-3.2   The district court noted that resolution of an

insurance contract dispute ultimately concerns the intention of the

parties;    but the district court, in fact, did not expressly

     2
      Section 13-2-2 sets forth nine general rules for contract
interpretation. The district court cited two rules in its
analysis of the meaning of the terms "care, custody or control:"

           The construction which will uphold a contract in whole
           and in every part is to be preferred, and the whole
           contract should be looked to in arriving at the
           construction of any part.

     and

           If the construction is doubtful, that which goes most
           strongly against the party executing the instrument or
           undertaking the obligation is generally preferred.

     We note two others that may be relevant in this case:

           Words generally bear their usual and common
           significance; but technical words, words or art, or
           words used in a particular trade or business will be
           construed, generally, to be used in reference to this
           particular meaning. The local usage or understanding
           of a word may be proved in order to arrive at the
           meaning intended by the parties.

           The rules of grammatical construction usually govern,
           but to effectuate the intention they may be
           disregarded; sentences and words may be transposed,
           and conjunctions substituted for each other. In
           extreme cases of ambiguity, where the instrument as it
           stands is without meaning, words may be supplied.
consider the intentions of the parties when they entered into the

insurance agreement.3
       Some Georgia courts have held that, to determine the intention

of the parties, the court shall take all of the terms of the

contract together and consider them      in the light of surrounding

circumstances.      See Paul v. Paul,   

, 

(1975).      In Paul, the court explained:   "That construction [is]

favored which gives meaning and effect to all of the terms of the

contract over that which nullifies and renders meaningless a part

of the language therein contained."     

at 739.   Where

the intention of the parties at the time of executing the agreement

is clear, it should be enforced, even though the parties disagree

about its meaning at the time of litigation.       

at

738.       Still, other courts have held that, "where the terms of a

written contract are clear and unambiguous, the court will look to

the contract alone      to find the intention of the parties."     See

Health Service Centers, Inc. v. Boddy, 

, 

,

661 (1987).4

       3
      The district court seemingly considered the parties' intent
only as it related to the relevancy of the disclaimer on the back
of the parking ticket. The district court concluded:

              Unless the parties here had an understanding concerning
              the legal effect of the wording of parking tickets
              given to defendant's patrons—matters for which no
              evidence has been presented to the Court—it seems
              somewhat strained to conclude that this case, between
              an insurance carrier and its insured over construction
              of a contractual term, turns on such fine, and
              sometimes inconsistent, legal distinctions as have been
              made in the context of litigation between bailors and
              bailees.
       4
      These cases are not necessarily inconsistent, but we leave
that issue for resolution by the Georgia courts.
      The Supreme Court of Georgia recently has held that the court

must look to " "the substantial purpose which must be supposed to

have influenced the minds of the parties, rather than at the

details of making such purpose effectual.' " Friedman v. Friedman,

, 

, 643 (1989) (citing Illges v. Dexter,

, 39-49 (1886)).           In USF & G v. Gillis, 164 Ga.App. 278,

   (1982),     for    example,    Georgia's        intermediate

appellate court held that it was logically inconsistent to argue

that the parties intended that an exclusion would govern and that,

as a result, no liability insurance coverage existed on a truck

involved in an accident where "[a]pplied literally, the exclusion

provision would preclude coverage of the truck under any and all

circumstances," although the truck was the only covered auto listed

on the policy.        

at 256.       In a similar way, the Fifth

Circuit has held that under a business liability policy, " "the

parties   are    assumed      to   have   in    contemplation     the    nature   and

character of the business and to have foreseen the usual course and

manner of conducting it.' "              Travelers Indemnity Company v. Nix,

   (5th    Cir.1981)       (citations    omitted)      (applying

Louisiana law).

      In cases of doubt, all here agree that the contract shall be

construed most strongly against the party who prepared it.                     

(citations omitted).                In addition, exceptions,

limitations, and exclusions to insurance agreements require "a

narrow    construction        on   the    theory   that     the   insurer,    having

affirmatively expressed coverage through broad premises assumes a

duty to define any limitations on that coverage in clear and
explicit terms." See Alley v. Great American Ins. Co., 160 Ga.App.

597, 

(1981).     Any exclusion sought to be invoked by

the insurer is to be liberally construed against the insurer unless

it is clear and unequivocal.          See First Georgia Ins. Co., v.

Goodrum, 187 Ga.App. 314, 

, 163 (1988).            Where the

intentions of the parties differ, Georgia law requires that "the

meaning placed on the contract by one party and known to be thus

understood by the other party at the time shall be held as the true

meaning."   O.C.G.A. § 13-2-4.

     So, Park 'N Go argues that to determine the parties' intent,

the court must consider the relationship of the parties, the type

and purpose of the contract involved, and which party drafted the

contract,   instead   of   merely   concentrating   on   the   terms    of   a

particular provision.       Park 'N Go contends that it fully and

accurately described to USF & G its business before entering into

the insurance contract and that USF & G's agent personally saw the

business enterprise and advised Park 'N Go about what kinds and

what amounts of coverage Park 'N Go needed to protect its business

enterprise fully.     Park 'N Go claims that it relied on USF & G's

advice and purchased broad liability coverage for the sole purpose

of protecting its business, which is entirely the operation of a

parking facility.

     Park 'N Go points out that the policy designated as covered

under the $1 million Garage Liability Coverage "any auto," which

Park 'N Go assumed included any vehicles parked in its lot.            Having

expressed this broad coverage, Park 'N Go claims that USF & G did

not define the limitations in clear and explicit terms and that the
exclusion should be narrowly construed.            Park 'N Go argues that to

hold otherwise renders the liability provisions meaningless and

means that the very coverage Park 'N Go sought (and everyone knew

was most needed) is not provided by the pertinent policy.                   In

reply, USF & G contends that the words of the contract are clear

and unambiguous and that the court need consider only the terms of

the contract to find the parties' intent.5

       Case law in Georgia tends to support Park 'N Go's position

that       the   intention   of   the    parties—determined   by   giving   due

consideration to the nature of the insured's business and to the

purpose for which the insurance is obtained—is paramount to the

actual language of the contract that attempts to effectuate that

intention.        But other case law in Georgia tends to support USF &

G's position that, where the terms of the contract are clear and

unambiguous, the court need consider only the contract to find the

intention of the parties.6              Although USF & G correctly observes

that Park "N Go does receive some insurance coverage even under the

exclusion, the issue would not seem to turn upon whether Park 'N Go

receives some insurance or none at all, but upon whether the

parties intended that Park 'N Go's more comprehensive liability

insurance would be limited in those circumstances. Because Georgia

state law on the issue of contract interpretation involved in this

case is unsettled, we certify to the Supreme Court of Georgia the

       5
      USF & G, it appears, offers no other evidence of its intent
in entering into the contract.
       6
      Park 'N Go argues that the exclusion is unclear and
ambiguous while USF & G maintains that the terms are clear and
unambiguous. We make no determination about whether the terms or
the contract itself is clear and unambiguous.
question of whether the "care, custody or control" exclusion in the

Garage Keepers Coverage portion of the insurance contract applies

and limits Park 'N Go's insurance coverage to $250,000.00.

                     QUESTION TO BE CERTIFIED

     Does the "care, custody or control" exclusion in the Garage

Keepers Coverage portion of the insurance contract apply and limit

Park 'N Go's insurance coverage to $250,000.00?

     In the course of deciding this question, the Georgia Supreme

Court may choose to discuss these questions:

     A. Are the terms "care, custody or control" defined by the law
          of bailment?

     B. Does section 44-12-17 apply to the kind of parking facility
          Park 'N Go operated and create a statutory presumption of
          a bailment relationship?

     C. Is the disclaimer on the back of Park 'N Go's ticket valid,
          and if so, what legal effect does it have in
          interpretation of the insurance agreement between Park 'N
          Go and USF & G?

     D. Does the exclusion apply where its application, given the
          nature of the insured's business, seems to render
          meaningless the liability provisions in the contract?

     Nothing in this certification, including our statement of the

question to be certified, is meant to limit the scope of inquiry by

the Supreme Court of Georgia.   See 

.

The entire record in the case, together with copies of the briefs

of the parties, is transmitted herewith.

     QUESTION CERTIFIED.