*1 in аttorney fees were additional expiration, limitations and that opportu have an be, very plaintiffs well should curred. That and having not trial, damages defendant nity prove injuries and such “loss of use recognized We by dispositive evidence. negated claim &c. Feed v. Ga. Leon Jones money” cognizable as a 861) 569, Svcs., Business Pope in this dissent. Judge joins I am authorized state 3, 1987 Decided December Rehearing 17, 1987 denied December Levine, A. for appellants. Carol Booker, Story,
James Johnnie & LOAN FEDERAL SAVINGS 74655. APPLING HOME OF ROME. ASSOCIATION (364 SE2d Judge.
Carley, (hereinafter 1962, Ap- to as Mrs. appellant-plaintiff In referred twenty-year loan from pling) home and her husband obtained L). 1964, In (hereinafter & pellee-defendant to as the S referred customers, including L general S & sent a to its mailing husband, availability insur- and her concerning and, pursuant Appling’s applied ance. husband a decreas- Security Company his Trust issued application, Life and was life. The issued ing which insured his beneficiary provisions and to the named & L as contained insured” was effеct that the “initial amount of loan payment first toward applied the benefits were “to be [the L] eighteen-year Although . .” was issued for loan. . years. fifteen term, required premiums was Thus, necessary in force no during coverage as would be available declining and effect for such September On years eighteen-year the final of its term. three notify him L husband to S & wrote Mrs. loan file “un- placed in his been issued and would be S & L less notified ...” When otherwise was] notified, accordingly possession it retained otherwise Thereafter, policy were sent and the S & directly & each month and her company. payments forwarded the Appling paid S & L off Mrs. loan from the time, husband in five earlier than five scheduled. At years policy’s original term remained and there was approximately coverage then available the policy. Mrs. employee asked an of the S & L if the insur- ance on her husband’s life could be notwithstand- maintained ing pay-off employee of the loan. The S & L informed Mrs. *2 pling that possible it would be keep policy effect continuing premium to make payments.
Mr. and Mrs. Appling keep elected to in effect and they continued to monthly premium payment send a to the S L. L, turn, The S & in continued premium payments to forward the company year until which marked the end of the fifteen-year period during which thе required. However, the S & L did not undertake to inform Mrs. pling and her husband under the terms policy, premium of the payments would no longer required in effect for the next three and Mr. and Mrs. continued to send amount of the to the S & L each month thereafter. These unearned and unnecessary premium payments were not re- turned to them Thеy the S & L. placed in an “excess cash” account established for Mrs. Appling and her husband the S & L. not, The S & L did inform Mrs. or her husband of the creation and existence of their “excess cash” account. eighteen-year expired in & L Again, 1982. did not inform Mrs. Appling or her husband expiration policy and the S & L purported premium continued to rеceive pay- ments from them each month. The & L merely S place continued to these monthly payments in the “excess cash” account that it had set up. Mrs. Appling’s husband died 1984. When she demanded that the S & L pay her as the beneficiary of her husband’s insur- ance policy, the L S & informed her that there was no such existence аnd that the funds in the “excess cash” represented account the full amount to which she was entitled. Mrs. her indi- vidual capacity capacity and as administratrix of her husband’s estate, brought suit, alleging that the S & L fraudulently had negligently led her and her pol- husband to believe that an insurance icy existed whereby the life of the latter was insured for She sought as general damages, punitive as well as damages and attorney’s fees. answered, The S & L denying allega- the material tions of Mrs. Appling’s complaint. jury The case came on trial. At for the close evidence, of Mrs. Appling’s & L moved for a directed verdict. The trial court granted the S & L’s motion and directеd a verdict its favor. Appling appeals judgment entered on the directed verdict. “ ‘(W)here 1. another, one procure undertakes insurance for 358 undertaking, in his he liable negligence guilty
and is of fraud or agreed policy.’ to the limit of the amount of [Cit.]” loss or (227 (II) Co., 899 Banking Ga. Spurlock Commercial 790) (1976), Ga. 123 SE2d aff'd 238 it would undertake agreed the & this is not a case wherein the life of Mr. covering maintain life insurance secure and & L was conclusively that the S shows and the evidence of record matters. What Appling’s general Mr. and Mrs. his applied for Appling’s that Mrs. evidence does show is which he was issued own 1964 and was, S & L application. The respects in all with his сomported for acceptance most, Appling’s agent Mr. and Appling had obtained warding that Mr. agreed Moreover, the & had even if were to assume that we husband, Appling’s life Mrs. covering to secure life insurance fraud- negligently not be case wherein the S this would still &c. Assn. v. Fed. ulently Compare so. Carrollton failed evеr do hus- Young, applicable throughout from continuously band was insured expired. It term, he died after the *3 that, impression pears were under Appling that Mr. and Mrs. origi- $10,000 coverage had policy affording since a of insurance issued, at all times thereafter nally Appling been the life of Mr. monthly pre- $10,000 of a be insured in return for for Howеver, policy itself would have reading simple mium. whereby life merely decreasing policy, shown it was over an steadily provided of would be decreasing amount policy expired in It true term which because, at the election Appling, was never either Mr. or Mrs. read by the possession of of had been retained Mr. is, at all times however, undisputed S & L. It was have retrieved available for either Mrs. or her husband to appellee’s pos- They “knew was have reviewed. [in King v. Bras- it. . . .” could have examined [they] and that session] even Accordingly, ington, 252 Ga. Ap- if been and Mrs. we were to assume that Mr. insurance, in order pling’s agent recover, she her husband reаd pling why she must show neither nor there- not insured the latter’s was so as discover that “ $10,000 ‘A who can read party time his death. Hart v. read, doing so.’ legal must show a excuse for not [Cit.]” Columbus, Trust Co. as to misrepresentation recognizes that an intentional law in- an policy. read a “Where coverage may excuse a failure to tentionally misrepresents of coverage existence or the extent of coverage an action in tort will lie and the insured’s claim not be defeated his failure to policy. examine and In [Cits.] order for verdict to stand this there must be some [such a] [in case] evidence of misrepresentation fraud or part on the &S . . . only shows misunderstanding or L]. [E]vidence [which] [a] . . . negligence misrepresentation rather than fraud or part [on the &S L will not excuse Applings’ policy].” failure to read the King v. Brasington, supra at 110 There is no evidence that Mrs. Appling or her husband was by any employee ever told of the S & the latter’s life was and would thereafter continue to be insured that, Mrs. Appling upon told her husband’s death, she would difference, be entitled any, if between the unpaid balance of the loan and the that was available under the policy. This entirely was an true statement. Mrs. Appling merely assumed that was the amount of afforded coverage that would continuously be avаilable under Thereafter, at the time of the payoff,
actual loan also told employee that, of the S & L by continuing to make premium payments, she could in effect.
too was an entirely By true statement. continuing to make the re- quired premium payments after the payoff loan the life of Mrs. Appling’s husband would continue to be insured steadily for a decreasing amount until policy finally expired in 1982. Neither Mr. nor Mrs. Appling was ever by any informed employee of the & by merely continuing premium payments, to make the they would thereby secure continuous on the life of Mr. Appling. That Mr. or Mrs. failed to know that the life was, latter pursuant application, his own insured under a policy which provided only decreasing eighteen-year term coverage rather than coverage of some was, other form and duration under the evidence, attributable solely to the failure to read the and not any fraud or misrepresentation part on the Mr. and Mrs. Appling simply chose rely upon their own assump- mistaken tions as to the coverage provided on the life of Mr. Appling rather *4 than upon the reading of the actual Those assump- mistaken tions were not created misrepresentation the or fraud of the &S L and the S & L prevent did not either Mr. Appling or Mrs. from reading the policy.
Mrs. Appling urges if the S & L intentionally did not cre- ate the assumptions mistaken as to the existence and extent of cover- age on life, her husband’s then the S & L negligently reinforced those mistaken assumptions evidence, as to that coverage. Under the the S & L gave appearance the continuing accept of to purported premium payments, which it in fact credited to an “excess cash” ac- How- her husband. Appling return Mrs. count rather than to to L, capac- & its for the S ever, negligent it assuming even that was to policy, for the 1964 ity forwarding as pay- place to to those submitted it and payments the post-1979 retain as to return them rather than cash” account ments an “excess on negligence unnecessary paymеnts, mere unearned and for the non- recovery a part of defendant will authorize to have been revealed coverage as would such insurance existence of King v. Bras- policy. See simple reading a plaintiff by known read, it been would have ington, Had the been supra. any after necessary continue tо send that it was not to failing negligent & L Accordingly, in that the S urging 1979. and Mrs. provide the extent Mr. information toas Mrs. post-1979 premiums, obligations regard with failing is, effect, urging negligent Appling own consequences of their protect Applings undertake to upon them. Under duty imposed the law perform failure which L, assert, against the & circumstances, S these Mrs. mistakenly right premium payments return of the to a Albany, v. & S Bank C generally Cloppas sent to & L. See cannot, in antici- the & recover from S asserting coverage by pated but non-existent as to the exis- assumptions S & L negligently reinforced mistaken “ finding demands coverage. tence such evidence [Mr. ‘[T]he legal duty to examine Appling] comply and Mrs. with failed [their] , and, . if the contract, provided is . . coverage observe what [the] correct, ten- as written when was not either There or renegotiate dered contract with insurer[.]’ [Cits.] [the] sub being any no reason law the case fraud or other shown depend judice Appling] to fail to read the [Mr. entirely upon agent[s] & we find no here from basis L’s] any differently from the facts with this case deal [in evidence] . . . to read the insurance those cases that such a failure hold [which is not cov- recovery coverage expected is a bar to when cases, actually Appling] and Mrs. erage As those afforded]. [Mr. contract, duty only [they was not free to examine were] so; just have observed [they] [they] do if done Levenstein, Barnes v. what provided.” [the] conclusively shows that The evidence record alleged capacity as the upon has no claim the S & L’s viable based on agent of or her with to the insurance regard it any liability to Mrs. the life of latter. If the & has institution. If the S L’s failure capacity as a financial
361 apprise the Applings post-1979 of its retention of the sums sent to it as apprise and its failure of the them of its creation “excess duty cash” account for those sums constituted a breach of a owed in capacity institution, as a financial then Mrs. would be proxi- entitled to recover such she suffered as mate rеsult thereof. did not advance this the- ory recovery at trial and & L’s introduced no evidence that the S post-1979 actions in any duty capac- breach of that it owed in its ity as a post-1979 financial institution or were it not for those actions, $10,000 in insurance coverage could and would have been se- cured on the life of her husband. Appling sought to recover solely on the theory that the S & L Applings’ agent was the and maintenance of in coverage insurance on the life of her 1, husband. As in discussed Division the evidence would not recovery authorize a theory under this and the trial court did not err in granting a directed verdict favor of the S & L. Judgment Birdsong, J., Deеn, J., C. Pope P. and Beas- affirmed. JJ., ley, concur. McMurray, J., Banke, J., Sognier P. P. and Ben- ham, JJ., dissent.
Banke, Presiding Judge, dissenting.
“Where agent intentionally misrepresents the existence of coverage or the extent of coverage an action tort will lie and the insured’s claim may not be defeated his failure to examine and policy.” King Brasington, (1) (312 v. 252 Ga. 110 SE2d 111) (1984).
The present evidence case reveals appellee savings that the and loan association edly about the availability appellant contacted the and her repeat-
of the af- ter the already loan was subsequently existence and collected as a percent commission 15 premium all the payments sent to in- surer. Such provides evidence ample support for a determination that appellee was acting agent as an appellant and her husband for the purpose of procuring coverage. See generally National Property Wells, Owners Ins. Co. v. App. 166 Ga. 281 (304 SE2d As appellеe’s subsequent conduct know- ingly continuing to accept premium payments appellant period husband for of several after the had terminated certainly could misrepre- viewed as a fraudulent sentation part on its some coverage continued to be force during period, it follows appellant thе failure of the and her policies husband to read the does not constitute an absolute defense to present King Brasington, supra. action. See
Moreover, appellee’s even if the conduct in accepting and retain- ing payments after the termination of the than rather merely negligent have been jury determined ex- nevertheless be could fraudulent, her husband appellant on the fact based policies cused for their failure to examine Ins. Allstate See policies to them. appellee never transmitted (1976); Guthrie Reynolds, Co. v. Corp., Acceptance v. Gen. Motors Brasington, King v. Court’s decision Supreme cоnclusion, because contrary supra, require a does not the insured’s copy at least furnish case did *6 case, assignee/beneficiary Where, present in the assignee. same, it were one and agent and the it- had insulated injustice to hold gross
would work a policy to transmitting the by in effect liability self from to the insured itself. appellee’s granting
I the trial court erred would hold that motion for directed verdict. McMurray, Judge Judge Presiding
I state that am authorized to in this dissent. Sognier Judge join Benham 3, 1987 Decided December Rehearing 17, 1987 denied December Neel, Jr., A. William appellant. Matthews, J.
Walter FLOORS, et al. INC. v. SHUMAN 74687. BRUNSWICK
(364 SE2d
Banke, Presiding Judge. Shuman, contracted with
The and Gordon appellees, Iona carpet Floors, Inc., of new pellant, for the installation Brunswick contract on a total home, appellant down paying their ex- appellees begun, price of After the installation performed being way the work pressed dissatisfaction with acceptable reso- pending an appellant stop and instructed the work lаter, returned to days appellant dispute. lution of the Two installation; appel- appellees’ completed home carpet disappointed appearance with the lees continued to be appellant The on the contract. pay the balance due and refused to re- appellees that balance. present filed the action to recover damages, $100,000 in actual seeking sponded with a counterclaim attorney unspecified amount punitive damages, and an in the transaction fees, alleged misconduct appellant’s based on the di- The trial court work. defects in the installation alleged and the