27 F.2d 616 | N.D. Ga. | 1928
There is-a motion to dismiss, based on the ground that, an insufficient amount is involved. A judgment for more than $3,000 is prayed for and might be secured, irrespective of the attorney’s fees claimed, which has sometimes been held to be mere costs, if the insurance contract sued on should be held to be governed by Georgia law, as is expressly claimed in the petition as amended. The insurance is on property in Georgia and is payable to a resident of Georgia, but is dated in another state. The full facts attending its making are not pleaded. It does not appear with sufficient clearness that it is not a Georgia contract to justify the court in refusing to hear the contention. I therefore overrule the motion to dismiss.
The ease was heard before me on a stipulation waiving a jury. It appears that the plaintiff applied to a broker in New York to get insurance on his property in Georgia, and that the broker in New York obtained the contract sued on, together with two others, aggregating $10,000, through MeKelvie & Co., who represented and acted for the three insurers. The contract sued upon was made with and delivered to the broker in New York, and by him mailed to plaintiff. It contains no agreement as to what law should be applicable to it. Eire insurance is a purely personal contract. The location of the property insured is not conclusive in fixing the law which the parties intended to contract under. It might be a ship at sea, or a house in a city never visited by either party. In case of loss the contract can be performed without visiting the place of destruction. An adjustment can be reached by bringing witnesses from the scene of loss, and the contract can be enforced by suit in any court that can get jurisdiction of the defendant.
A Georgia statute (Park’s Code, § 2470) requires the entire contract of fire insurance to be in writing. A memorandum sufficient to satisfy the statute of frauds will not always do. The so-called “binder” sued on here is of doubtful sufficiency under this statute. It really contains no promise to pay in case of loss. The binder, by a special entry on the printed form, limits insurance recoverable to three-fourths of the loss. This limitation is void under another Georgia statute (Park’s Code, § 2545), but valid elsewhere in the absence of statute. It should be assumed that the parties intended their contract to have full effect. This can be secured only by attributing to them an intention to deal under the law of the place
It results that the three-fourths value clause is valid. Also the penalties of the Georgia law (Park’s Code, § 2549), of 25 per cent, damages and attorney’s fees by refusal in bad faith to pay the policy, do not apply. The statute on its face relates only to Georgia insurance companies and those doing business in the state. While the sending of an agent into a state to adjust even a single loss may be doing business, so as to give Georgia courts jurisdiction (Lumbermen’s Insurance Co. v. Meyer, 197 U. S. 407, 25 S. Ct. 483, 49 L. Ed. 810), I do not see how, if the contract was made under the New York laws and in New York, the accident of a jurisdiction for suit acquired here would enable the Georgia Legislature to add to the contract the penal consequences set forth in the statute. The binder, indeed, does not contemplate a Georgia adjustment, hut makes the defendant’s liability to follow the adjustment and settlement made on another contract of concurrent insurance.
This other contract, for an amount double that here sued on, was compromised for the sum of $3,250. It is thereupon claimed that this fixed the amount due on the contract in suit at $1,625. It is shown, however, that, after long unsuccessful attempts to adjust and settle in the usual course, suit was brought on both contracts. Pending suit McKelvie & Co. agreed on a lump settlement for all the insurance involved at a compromised amount. One company paid its part, $3,250, as above stated, but the amount was received by plaintiff’s attorney expressly without prejudice to plaintiff’s claims, if the other companies should fail to pay their part. The defendant company not only did not pay its part, but repudiated all of the acts done in its behalf in that connection. It is now defending the entire suit, not acknowledging any liability at all. If the compromise of a lawsuit with the other company, as distinguished from an adjustment and settlement in ordinary course, was meant to be conclusive by the clause of the rider referred to, I do not think the defendant can blow hot and cold about it; that is, repudiate this measure for the purpose of claiming no liability, and in case of failure then to fall back on the agreement in the rider. Having denied that it is bound by the compromise, it is estopped to claim that plaintiff is bound.
A judgment may be presented, following the conclusions here announced.