James Barnes, the sole proprietor of a tire service and garage, brought suit against his insurance carrier, Auto-Owners Insurance
The record reveаls that the policy contained a section providing coverage for property damage, as well as one providing liability coverage. In addition to the building and personal property belonging to Barnes, a substantial amount of property belonging to others which Barnes was holding on consignment, as well as tools and equipment belonging to family member employees of Barnes, were destroyed in the fire. Barnes sought payment from A-0 under the policy for the loss of his own property, as well as reimbursement for sums he had paid the owners of the consigned property and the tools. While promptly paying Barnes’ claim for the building and his own personalty up to the policy limits, A-0 paid only $2,000 of Barnes’ claim for the personal property belonging to others.
1. In Case No. 76391, A-0 contends the trial court erred by denying its motion for a directed verdict as to coverage under the property insurance portion of the policy. A-0 argues that under specific policy provisions it was obligated to pay Barnes only $2,000 for рroperty belonging to others which was lost or damaged in the fire.
The declarations portion of the policy provides that “[t] his insurance shall cover for the account of the owner(s) (other than thе named insured) personal property belonging to others in the care, custody or control of the insured. ...” However, later specific provisions clearly provide property insurance coverage only “up to 2% of the limit of liability specified for Personal Property of the Insured at such location, but not exceeding $2,000, as an additional amount of insurance, to cover . . . direct loss by a pеril insured against to personal property, similar to that covered by this policy, belonging to others while in the care, custody or control of the named insured,” and state that “[a]s respects personаl property belonging to others, this provision shall replace any loss payable provision of this policy.”
We reject Barnes’ argument that the general statement in the declarations controls, as such a construction contradicts explicit language to the contrary later in the policy. “ ‘An insurance policy must be construed as a whole [cit.], and “all of the provisions should be so interpreted so as to harmonize one with the other.” [Cit.]’ [Cit.]”
Wil
Although the provisions of an insurance policy “will be construed against the insurer when a part is susceptible of two constructions аnd a court will adopt that interpretation which is most favorable to the insured . . . [,] if the language is unambiguous and but one reasonable construction is possible, the court will enforce the contract as writtеn. [Cit.] Interpretation of policy provisions which are plain and definite is a matter of law for the trial court, and a policy provision ‘ “is not ambiguous even though presenting a question of construction, unless and until an application of the pertinent rules of construction leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties.” ’ [Cit.]”
Simmons v. Select Ins. Co.,
2. A-0 also contends in Case No. 76391 that the award of penalties and attorney fees against it was improper. The award of penalties and attorney fees was based on A-O’s refusal to pay more than $2,000. Since “[t]he Supreme Court has hеld that ‘[an award of statutory penalties and attorney fees] is not authorized if an insurer had reasonable and probable cause for making a defense to the claim,’ [cits.],”
Commercial Union Ins. Co. v. F. R. P. Co.,
3. In Case No. 76392, Barnes first asserts the loss of property belonging to others met the requirements for coverage under the liability portion of the policy, and the trial court errеd by directing a verdict against him as to this issue. We do not agree.
We find that the claim here meets none of the requirements for coverage under the liability portion of the policy. No evidence was presented that there had been a final legal determination of Barnes’ liability to the owners of the destroyed or damaged property, nor did Barnes demonstrate that any liability could be imposed by law against him in favor of the owners of the property. While it is uncontroverted that Barnes paid the claims made upon him by the owners of the destroyed property, it is undisputed that the claims were neither reduced to judgment nor agreed to by the insurance carrier. Thus, Barnes’ payment of those claims must be classified, for purposes of the insurance policy, as voluntary payments. As to the contractual assumption of liability provision, Barnes does not contend the agreements he had with the owners of the consigned property fit into five of the six categories of contract, as defined by the policy, the assumption of which would meet the requirements for liability coverage. Rather, Barnes ingeniously asserts that because the sixth category, “sidetrack agreements,” was not explained in the policy, it was ambiguous, creating a question of fact and allowing the jury to decide whether Barnes’ agreements were “sidetrack agreements” so as to provide liability coverage. However, “[w]ords generally bear their usual and common signification.” OCGA § 13-2-2 (2). We agree with the trial court that the term “sidetrack аgreements,” although not fully explained, clearly refers to railroads, and in its ordinary meaning does not contemplate the agreements made by Barnes. Since Barnes’ claim did not meet the requirements for coverage under the liability portion of the policy, a verdict in favor of A-0 was demanded as to this issue, and the trial court did not err by granting A-O’s motion for a directed verdict as to this issue.
4. The case was submitted tо the jury by special verdict, by which they were authorized to consider C & L’s liability to Barnes only if they found A-0 was not liable to Barnes on the issue of coverage. Because the jury determined A-0
was
liable to Barnes on the issue of coverage, they did not reach the question of C & L’s liability.
We agree that the issue of C & L’s liability must be reviewed, and turn to that issue. C & L’s liability, as alleged by Barnes, arises from its negligent procurement of insurance which did not provide the coverage desired and sought by Barnes. However, “the gеneral rule [is] that an insured has a duty to examine and reject a policy providing incorrect or insufficient coverage . . . .”
King v. Brasington,
5. It is unnecessary for us to address further the contentions put forth by C & L in Case No. 76393, as our decision in Division 4 of this opinion requires that we affirm the judgment in favor of C & L.
Judgment affirmed in Case Nos. 76392 and 76393.