*1 granting summary judgment trial lition claims that the court erred unanticipated alleged on count three which that because of subsur- conditions, perform required face American was work outside the scope compensation of the contract and was entitled to additional recovery quantum it is entitled to meruit under OCGA 9-2-7.
In order to determine whether American can recover additional money performance contract, for the unforeseen costs involved necessary it is to determine from the contract itself who bore the risk contract changed unknown obstacles. The here contained no condi- clause, unequivocally payment tions limited the contract to a sum certain, inspection pro- an It and contained clause. is clear from these imposed uncertainty visions that the contract the risk of of subsur- face conditions on American Demolition. Jerome Constr. Bradford 26) (1985); Co. Pinkerton & Laws Pinkerton, supra. laboring “Parties may under no disabilities make terms, contracts on their own the absence of fraud or mistake illegal contrary public policy, or terms that are or must abide by the contract. The fact that unwise disadvantageous to one (Citations party disregarding furnishes no reason for punctu- it.” omitted.) Jerome, supra ation placed at 855. Because the contract it, expense risk of extra on American Demolition is not entitled to compensation just recover additional required because the work to be performed expensive anticipated. more than it had properly trial court also quantum dismissed the claim for meruit damages. recovery “There can quantum be no on meruit when express Hall, action is based on an contract.” Stowers v. App. Judgment Sognier, J., J., McMurray, C. P. con- affirmed.
cur.
Decided November denied
Reconsideration December Peterson, Dillard, Young, Asselin, Vance, & James B. Self Marshall, Thomas 0. appellant. Doster,
Porter Porter, & J. Barrett, Alexander Sidney R. McGinn, Warner, & Douglas Warner, Webb B. appellees.
A91A1583. CLABO et al. v. TENNESSEE FARMERS MUTUAL
INSURANCE COMPANY. Presiding Judge.
McMurray, appeal This arising involves insurance issues from a motor vehi-
Ill A cle collision. vehicle driven Lane and owned Cain Tool Inc., Equipment, collided with a vehicle driven William Clabo and ex-wife, occupied by also his owner of the vehicle named insured under a of insurance on this vehicle issued (hereafter Company Tennessee Farmers Mutual Insurance “Tennes- Mutual”) see injured Tennessee. Leslie Clabo was in the collision *2 Clabo, Lane, negligence and filed this action William and Cain Equipment, A copy complaint Tool Inc. of Leslie Clabo’s served on alleged Tennessee Mutual as the uninsured motorist insurer Clabo, of William Tennessee Mutual answered its own name and also filed an answer on behalf of upon William Clabo. Service William was subsequently acknowledged. Clabo
Tennessee Mutual filed a summary judgment predi- motion for cated on a lack of under the provision uninsured motorist of the any contained an exclusion of by vehicle owned the named insured from the definition of “uninsured motor vehicle.” Les- lie opposing Clabo filed an summary motion for judgment seeking to establish that obligated Tennessee Mutual was provide uninsured motorist coverage under policy her, or, the insurance issued to in the alternative, that obligated Tennessee Mutual was provide Clabo with liability coverage. In ruling on the opposing motions for summary judgment, appears superior that the expanded court has the issues parties submitted the summary considered whether judgment should be issued to Tennessee Mutual in regard coverage. party has any raised issue complaining of the scope of the issues superior considered the court. court,
The superior upon ruling on the issues of under both the uninsured motorist and coverage provisions of the policy issue, insurance granted at summary a judgment in favor of Tennessee Mutual and denied Leslie summary Clabo’s motion for judgment. Plaintiff Leslie Clabo and defendant William (“ap- Clabo pellants”) appeal from this order. Held:
“The suggestion contains no any law of state other than Tennessee is govern its construction. Georgia follows the doctrine of lex loci contractus. General Tel. Co. the Southeast v. Trimm, (311 252 (1984). Ga. 95 SE2d Under this doctrine ‘ “(w)here pleaded a contract not State, is executed in foreign but nothing contains indicate place performance or other wise that it was intended to be contract, construed as Georgia it will be treated as a contract of foreign State, governed by its (C)ontracts laws. ...” performed made and in another state will be enforced unless such state’s laws are contrary public to the policy of the enforcing state. ... “A contract should not be held unenforce able being as public contravention of policy except in cases free from substantial doubt where prejudice interest
112 Terry Mays, v. (Cit.)’ 328, App. clearly appears.” 161 Ga. Parnham, Ins. v. See also Nationwide Gen. SE2d Dacosta v. Allstate Ins. (4) (357 139) (1987).” App. 7). entirely Appellants rely upon Georgia’s Ga. public policy and contend that it is violated since exclusions deny any coverage. the insurance at issue combine to the named The exclusion of vehicle owned the definition of motor vehicle” is “uninsured consistent (b) with the uninsured motorist statute. See OCGA 33-7-11 (1) (D). “Expressions legislature of the through statutes are conclu- Integon Corp. Indem. question public policy. ...” sive on Canal Ins. 186). superior court err in granting summary judg- did not Tennessee Mutual’s motion for plaintiff’s ment on the claim under the uninsured motorist in denying plaintiff’s at issue or motion for summary judgment insofar as it relates to her claim for uninsured motorist benefits.
Appellants grant summary also contend that the of a favor of Tennessee plaintiff’s Mutual and the denial of summary judgment as to coverage was error. William Clabo person” was a “covered under the terminology of the insurance *3 using plaintiff because he was Leslie Clabo’s covered automobile with permission. her policy provided bodily The coverage injury “for property damage any person for which covered legally becomes re- sponsible because of an auto accident.” Tennessee Mutual’s denial of liability coverage liability is based on an exclusion from bodily injury to the named insured. exclusions,
In considering such
governed by
we are
overriding
our
public policy
complete
liability coverage
for the
public
rule,
and the insured. Under
if
the current
the exclusion is
broader
immunity
state,
than the tort
this
the exclusion is
public policy
Stepho
Co.,
v. Allstate Ins.
and cannot be enforced.
259
475,
(1) (383
Southeastern Fidelity Ins. Co. v.
887);
Ga.
476
SE2d
Chaney,
(381
Guaranty
Southern
747);
Albeit, the insurance law does not establish greater required by Thus, as to sums than those such law. if protected up mandatory William Clabo is to the amount of the liabil- ity coverage by some other insurance in exclusion the Ten- liability coverage bodily injury nessee Mutual Georgia public pol- named insured will not be viewed as violative of icy. App. supra. Sams, Harbin v. 171 Ga. appellants
While contend that the exclusion in Ten Mutual nessee not have from which injuries, violates since William Clabo does any coverage protecting other him and
plaintiff compensation Leslie Clabo could receive for her probative pro there is no evidence that William Clabo lacks attorney representing affidavit, tection from other insurance. An plaintiff, of an support plaintiff’s summary judg submitted in ment states William not have him Clabo had informed letter that he does any liability insurance. The letter is attached as an exhibit portion clearly hearsay. to the affidavit. This reduction of the of the affidavit is hearsay writing statement to does not alter its char Dowdney (2) (176 512). App. Shadix, acter. v. “ ‘[O]rdinarily hearsay testimony wholly is not inadmissible but probative objection value, without and its introduction without does n not give any weight establishing it or force in [Cits.]” whatever a fact.’ (1c) (385 Quinones Berkele, Inc., Maier & 719). genuine concerning A issue of material fact remains whether any protecting there other insurance Thus, William Clabo. while superior denying plaintiff’s court was in correct motion for sum- mary judgment, granting summary erred in favor of provided Tennessee Mutual on the issue of whether William Clabo is liability coverage. Judgment part part. Sognier, J., reversed in C. affirmed
Carley, Pope Cooper, Judge J., JJ., P. Shulman, Arnold Birdsong, Beasley part J., concur. P. Andrews, JJ., concur in part. and dissent in Judge, part, concurring dissenting part.
Andrews, *4 portion opinion judgment affirming I concur in that summary judgment plaintiff grant- the denial of Clabo, Leslie ing summary judgment Mutual, to defendant Tennessee on the unin- portion sured the motorist benefits issue. I dissent from that opinion judgment concluding that Tennessee Mutual was not summary judgment liability coverage entitled to on the issue of for defendant William Clabo. correctly granting
The trial court decided in this issue its order summary judgment. Applying princi- Tennessee Mutual’s cases, family exclusion clause the trial court con- pies drawn from law, cluded, policy provision excluding cover- as a matter of that the named insured did not violate age bodily injury for enforcing the exclusion did not leave an insured public policy because liability, in- unfairly exposed unanticipated or leave an innocent party unprotected. jured complete Georgia’s statutory mandate for automobile lia-
Under in bility coverage, family exclusion a ex- coverage, immunity preclude where tort would not otherwise cluding individually liability, per prohibited, “are not se but must be evalu- against public policy.” Southern they ated to determine whether are &c. Guaranty Ins. Co. Risk Preferred 665) (1987). analysis, In applying this clear “[a] consistency through apply thread of runs each of these cases as policies protection negligent the dual for innocent victims of mem- motoring public bers of the of the insured un- exposure unanticipated liability. in fair This results a basic rule unpro- if either of the interests dealt in with those cases is left tected, exclusionary pub- clause the insurance contract offends policy.” Stepho v. Allstate Ins. lic Clabo
Leslie was the owner of the automobile and the in- named driver, policy insuring sured on the the automobile. She is suing the Clabo, injuries passenger William for she sustained as a in the auto- mobile. driving permis- William Clabo was the automobile with the ex-wife, person” sion of his Leslie and as “covered under the against any bodily was insured injury property damage for which he legally becomes liable because of the accident. The provision bodily at issue excludes injury named insured.
If provision enforcement of the excluding coverage either leaves an injured unprotected innocent victim exposure or results unfair of an unanticipated liability, insured to exclusionary then the clause Stepho, supra at public policy. violates 476. As the named insured policy, policy, Clabo is deemed to know the contents of the including exclusionary provision, position and was to recog- Guaranty, risks. Southern nize the supra Though at 356. injuries exclusion leaves her unprotected by there is no public policy violation knowledge position because her or to know dis- qualifies her as an unprotected innocent victim. Id. at 356.
Nor does unfairly enforcement of this exclusion leave an insured exposed. permissive automobile, As a user of the William Clabo was a person” “covered against any and insured injuries damage might which he become liable as a result an driving accident while automobile. As the ex-husband of the named *5 policy permis- only was claim to insured status under the as Clabo’s sive user of Enforcing against coverage the automobile. the exclusion exposed injuries him the named insured would leave for to tort suffered liability injuries for suffered Leslie Clabo. Since were immunity ap- longer accident, married at the time of the no tort no plies. Guaranty public policy against Ias read Southern exposure unanticipated liability unfair to was extended under the only facts that case the named insured or an in- protec- sured member of the household of the named insured. Such only Gordon, tion was not extended to Mrs. whose claim to insured policy permissive status under the owner’s as a user of the auto- determining prong mobile. After under the first of the analysis qualified injured party’s knowledge that the as a named insured dis- unprotected victim, as
her an innocent the court South- Guaranty, supra “[N] ern any at 356 stated: either the named insured nor exposed
member of the household was to additional be- cause of the exclusion under the facts of the case. From the stand- point coverage insured, [the named of Mrs. Gordon driver of permissive policy only the automobile and an insured under the as a important only might user] [the insured] insofar as he named be exposed driving as owner of the car for her accident while present his car. It is clear that under the facts he will suffer no such exposure.” Guaranty passenger injured In Southern while Mrs. driving intrafamily Gordon was was the wife of the named insured so immunity prevented exposure. Although tort his Mrs. Gordon was a permissive protected liability by user and she was not immunity, public policy analysis tort her the court did not extend its exposure policy. as an insured under the owner’s ref- court’s “coverage apparently erence to ability of Mrs. Gordon” referred to the avail- coverage separate policy, under her own automobile important only coverage the court considered to the extent such exposure by providing would reduce the of the named insured an al- damages ternative source of insurance for the named insured would immunity. have otherwise been liable for absent his tort I believe this secondary that, reflects the court’s even the absence of coverage policy, only under another automobile whose one claim to policy permissive insured status under the owner’s is as a user under the so-called omnibus clause cannot claim the lack of under policy unanticipated. the owner’s was unfair or present permissive In case, user of the exposed liability by automobile, is the insured enforcement of public exclusion. Under these facts the considera- tions at issue do not extend to that class of insured so the exclusion- ary exposure liability. clause is not invalidated his exclusionary does Tennessee Mutual’s clause Since provides violate
not William Clabo. Beasley joins Judge in this dissent. to state that I am authorized 7, 1991 Decided November denied December Reconsideration Feagin, ap- Feagin Feagin, Jones, E. Paul John John *6 pellants.
Rogers, Magruder, Brinson, Sumner, Jr., Sumner & J. Clinton Buckley, White, Jr., Greene, McQueen, Harold S. H. Lee Jones appellee. Pruett, for SAVANNAH, INC.
A91A0823.PRESERVATION ALLIANCE OF v. NORFOLK SOUTHERN CORPORATION et al. Judge Arnold Shulman. appellant, Savannah, Inc.,
The Preservation Alliance of of is a non- profit corporation purpose preserving encourag- formed for the ing Superior development present of historic sites. It filed the action County against Corpo-
Court of Chatham Norfolk Southern (subsequently replaced ration as a defendant Central of Company, railroad”), Railroad hereafter referred to as “the W. E. Hamby (“Hamby”), Gilpin, and Associates Richard Mayor City seeking enjoin Savannah, and Aldermen of the to Hamby demolishing dilapidated pre-Civil two War warehouses property Hamby located on owned the railroad. had obtained an option Gilpin, purchase property, to and assisted architect Richard proposed building parking
Jr., it to construct an office appellant additionally declaratory sought deck on the site. The appellees complied to the effect that the had not with cer- City pertaining tain tion of historic of the Savannah Code to the demoli-
properties. question, together warehouses with certain other facilities designated railroad, owned had been a National Historic Consequently, Hamby required apply Landmark 1978. appropri- the Savannah Historic Board of Review a for “certificate of prerequisite demolishing ateness” as so, historic structures. It did City’s Officer, and based on the recommendation of the Preservation unanimously deny whereupon certificate, the Board voted Hamby appealed Zoning Appeals, upheld Board of Hamby applied permit pursuant City denial. then for a demolition