26 Ga. App. 288 | Ga. Ct. App. | 1921
(After stating the foregoing facts.) While the Georgia Casualty Company is not an actual party to the litigation, and the judgment herein rendered cannot, therefore, be taken as an adjudication of its rights or obligations, the practical question raised by the pleadings in this case is, which of the two insuring
The proper construction of policies of insurance as regards proportionate contribution betweén two or more insurers has given rise to many and diverse rules, and has sometimes been considered one of the most difficult and troublesome questions in the law of insurance. The- proposition is simple enough where there are several valid policies in different companies, which insure the same party, upon the same subject-matter, and assume the same risk. This constitutes what is denominated “ double insurance,” and under a statute of this State (Civil Code of 1910, § 2544) and according to the rules established by all of the courts, each policy must in such a case contribute proportionately to the loss, even in the absence of any specific provision so requiring. Fireman’s Fund Ins. Co. v. Pekor, 106 Ga. 1 (2) (31 S. E. 779). Where, however, the insurance is not strictly the technically “ double ” insurance,— that is, where the policies are not limited to the same subject-matter, and the risk assumed is not identical or coextensive, but one policy is a “ general,” “ compound,” or “ blanket ” policy, and the other is “ specific,” and the rules of priority are not specifically provided for by the policies themselves,— there arises a great diversity and lack of harmony in the various rules laid down by the appellate courts of different jurisdictions. In some of the courts, notably that of Pennsylvania, it has been held, and the rule there remains so established, that in the adjustment of a loss where the property was covered both by a specific policy and a blanket policy, even a
While the one fundamental principle that underlies each of'the different rules which have been thus established will be herein later referred to, it does not seem necessary for us to go into a further discussion of these questions, since, as already stated, each of the policies before us, by its express terms, designates the risk assumed by it, for a loss such as has actually occurred, as excess insurance only, for which it is only secondarily liable. One or the other of these specific limitations can be given effect without detriment to the rights or interest of the insured. The question, therefore, is, which of the policies, in so far as the particular risk involved is concerned, is really primary or basic insurance, and which is in fact excess insurance only. As counsel for defendant in error aptly remarks: “ Before either policy can ride as excess insurance, the other must be made to walk as primary insurance.”
It is not contended by counsel for either of the insuring companies that the inconsistent and antagonistic provisions could work a forfeiture so as to defeat the rights of the insured against one or the other insurer. As previously stated, the full premium rate was paid to each of the companies without any diminution of charge on account of the other -insurance; and *“ this court is unreservedly committed to the proposition that no presumption will be indulged in favor of forfeitures, and especially of forfeitures of contracts of insurance.” Locomotive Engineers Life Asso. v. Bobo, 8 Ga. App. 149, 153 (68 S. E. 842). In a case such as is
The identical question here presented appears to be one of first impression. Neither the Supreme Court nor this Court, nor an appellate court of any other jurisdiction, seems to have had just such a question before it. In United Underwriters Ins. Co. v. Powell, 94 Ga. 359 (21 S. E. 565), our Supreme Court upheld a provision in a general or “ floating ” policy of insurance, to the effect that it should not be made to share in losses for property which was otherwise covered by specific insurance. This principle was reaffirmed and followed in Macon Fire Insurance Co. v. Powell, 116 Ga. 703, 704 (43 S. E. 73), in which case the Supreme Court quoted approvingly the language used in the former case, as follows: “ A floating policy of insurance which declares that it does not cover cotton on which there is any more specific insurance, does not embrace or apply to any cotton which is specifically insured in another company, and therefore is not subject to share with the other company the burden of loss sustained by the latter or by the insured in respect to the cotton covered by the more specific insurance; and for this reason, the company issuing the floating policy cannot be called upon to contribute to a loss resulting from destruction of the cotton covered by the more specific insurance, although the policy touching the latter contain a clause declaring that c in case of any other insurance upon the property hereby insured, whether made prior or subsequent to the date of this policy, the assured shall be entitled to recover of this company no greater proportion of the loss sustained than the sum hereby insured bears to the whole amount insured thereon, wheth-' er by specific or floating policies. ’ ” See also Cooley’s Briefs on the Law of Insurance, Vol. 1, pp. 521, 522.
The reason for the difficulty which seems to arise when we undertake to definitely point out one of these policies as specific and the other as general lies in the difference in the nature and character of the contracts. In each of the cases before the Supreme Court both of the policies insured' cotton against loss by fire. The, policies were of the same nature, whereas in the instant case, although the two policies are in part coextensive as to risk, they are nevertheless of very different type and character. One em
Upon an employee being injured by such an explosion, the Hartford Company is liable first and primarily for the inevitably resulting property loss; and should there then be a surplus of insurance left over, it is liable for injuries occasioned both to employees and to others not employees. Upon the happening of such a contingency the liability of the Casualty Company, on the other hand, is limited solely to personal injuries to employees. Thus, in any case where both of the policies could possibly take effect, the liability of the Hartford Company for personal injuries is general, while that of the Casualty Company is limited and specific.
It is a familiar and well-settled principle of law that contracts of insurance are to be liberally construed in favor of the policyholder. Insurance Co. of North America v. DeLoach, 3 Ga. App.
While, as already stated, under the express clauses of limitation in each of the policies, the doctrine of contribution is not involved in the instant case, still it would seem, by analogy, that in determining which of the policies is general and which specific, and in this way giving effect to one or the other of these provisions, it would be at least proper, if not indeed altogether necessary, to consider, in the light of the underlying principle of that doctrine, which construction would, under all possible contingencies, afford the greatest measure of protection to the assured, since the decision of the point involved lays down a general rule governing the construction of the contracts themselves.
Judgment reversed.