162 Ga. App. 612 | Ga. Ct. App. | 1982
In January of 1977 George Kemp, who had been in the trucking business in his own name or that of Kemp & Son Trucking Company, incorporated the business known as Kemp & Son, Inc.
On February 12, 1977, George Kemp purchased a 1968 Mack tractor with identification No. F685ST1492 from a Mr. James Fiveash or Fiveash Transportation Company, or Five Transportation Company upon paying $500 down. He took delivery of the vehicle on February 14, 1977. One version is that Kemp paid $500 down and took delivery of the vehicle on February 14, 1977, with the full final payment of $1,500 being made on March 8, 1977, and title to the tractor was then signed over to him. As to these checks in payment, it is not clear whether they were the personal checks of George Kemp or business checks of Kemp & Son, Inc., as he was the majority stockholder and used corporate checks in many instances, generally transacting business through his business checkbook. Another version is that Kemp, for his corporation, Kemp & Son, Inc., paid for the tractor with one corporate check in the amount of $2,000. Record title, however, was issued in the name George Kemp on April 28, 1977. The registration and title papers appear to be from the seller Five Transportation Company to George Kemp.
On April 20, 1977, Leader National Insurance Company issued its policy of insurance No. AC10-8 37 73, effective March 14, 1977, to George Kemp and Kemp & Son, Inc. covering all the trucks used by Kemp & Son, Inc. (as “named insureds”) in its business of hauling stumps under an independent contract arrangement with Hercules, Inc. The 1968 Mack tractor was not listed in this insurance policy on
* The 1968 Mack tractor, however, was not operational at the time of its purchase and delivery and required extensive repairs. On March 28, 1977, after the repairs were made and the vehicle became operational it was delivered to Kemp & Son, Inc. by George Kemp and thereafter used extensively by Kemp & Son, Inc. in its trucking business. A certificate of title was not transferred from Mr. Kemp to the corporation. However, its transfer was listed as a corporate asset on April 1, 1977 (value of $2,000).
On April 25, 1977, an automobile incident occurred involving this 1968 Mack tractor (which incident eventually claimed the life of James Michael Smith on October 24, 1977). On April 27, 1977, two days following this incident, the insurance company agent for Leader National Insurance Company received an oral request to add the Mack tractor, and Leader National Insurance Company issued an endorsement adding same, showing March 28, 1977, as the date of acquisition of said vehicle by Kemp & Son, Inc.
Considerable litigation then followed. On May 2, 1977, suit was filed by Virginia Smith against George Kemp, d/b/a/ Kemp & Son Trucking Company, a company employee, and Hercules, Inc. Virginia Smith later dropped George Kemp, d/b/a Kemp & Son Trucking Company and added Kemp & Son, Inc. to her suit. After the death of James Michael Smith, Virginia Smith filed a wrongful death action against the estate of the now deceased employee of Kemp & Son, Inc., Kemp & Son, Inc. and Hercules, Inc. James G. Smith, as administrator of the estate of James Michael Smith, likewise filed suit against the estate of Kemp’s deceased employee, Hercules, Inc., and Kemp & Son, Inc., following the death of James Michael Smith. The damage suits by the Smiths were later dismissed as to Hercules,
In the meantime, on August 24, 1977, Leader National Insurance Company filed its petition for declaratory judgment and temporary injunction, naming as defendants, Mrs. Virginia Smith, as the mother and natural guardian of the decedent, James Michael Smith; the administrator of the estate of the employee (now deceased) of George Kemp, d/b/a Kemp & Son Trucking Company; Hercules, Inc., and George Kemp, d/b/a Kemp & Son Trucking Company setting forth much of the facts shown above, contending that George Kemp had called upon the plaintiff to defend the suits and afford coverage for him for damages arising from the collision. It prayed that its rights and obligations be determined, for a temporary restraining order and temporary injunction be entered until the merits of the plaintiffs petition could be heard and passed on and the rights and obligations of the parties be determined; and that the court find no coverage existing on April 25, 1977, and plaintiff has no liability to said defendants to defend said suit or to respond to any judgment rendered against said defendants (the estate of the employee “and/or George Kemp”). The defendants answered, in general, denying the claims for declaratory relief, and, after discovery, the plaintiff moved for summary judgment.
While the declaratory judgment action was pending and after the filing of the motion for summary judgment, counsel for Leader National Insurance Company, which was of counsel for certain defendants in the damage suits, withdrew therefrom; and in January 1980 judgments in excess of $600,000 were rendered against the defendants, a jury trial having been waived.
In October 1980 the Smiths and Kemp & Son, Inc. filed suit against Leader National Insurance Company and Insurance Professionals of Georgia, Inc. (broker for Leader National Insurance Company’s agent) to collect the amount of the judgments rendered against Kemp & Son, Inc.
Virginia Smith and George Kemp, d/b/a Kemp & Son Trucking Company, thereafter filed their motion for summary judgment in the declaratory judgment action on April 10, 1981. Both motions for summary judgment came on for a hearing, and on October 8, 1981, the trial court denied the plaintiffs (the insurer) motion for summary judgment and granted summary judgment to the defendants Mrs. Virginia Smith and George Kemp, d/b/a Kemp & Son Trucking Company, expressly determining as a matter of law that the insurer provided coverage on the vehicle in question and that it owed a duty to represent Kemp & Son, Inc. in the lawsuits. Plaintiff (insurer) appeals. Held:
With reference to the two enumerations of error (denial of
The evidence simply does not demand a finding for either party in consideration of their motions for summary judgment. We do not agree that the trial court should have totally disregarded Kemp’s inconsistent statements on the ground that the contradictions were intentionally and deliberately made based upon Combs v. Adair Mtg. Co., 245 Ga. 296 (264 SE2d 226); and Chambers v. Citizens & Southern Nat. Bank, 242 Ga. 498 (249 SE2d 214). The record does not disclose an intentional and deliberate attempt to confuse or mislead the court. See Brooks v. Douglas, 154 Ga. App. 54, 58 (267 SE2d 495).
Further, we do not hold this layman’s statements as to the status of the ownership and title of the tractor in question at the time of the incident from which the decedent lost his life demanded a finding that title to the vehicle and ownership passed to George Kemp on February 14, 1977, and remained there until he sold the vehicle in 1978. A jury could determine from the facts that even if record title never went into Kemp & Son, Inc. and was thereafter sold in 1978, that the owner of said property (even though conveyed by George Kemp) under the evidence and cases cited above was at all times after March 28, 1977, when it was delivered and put into operation by Kemp & Son, Inc., the property of Kemp & Son, Inc.; and this corporation was the owner having an insurable interest in said property. Therefore, based upon the conflicting testimony from which various inferences may be drawn by a jury the trial court did not err in denying summary judgment in favor of the insurer but did err in granting summary judgment in favor of the defendants.
Judgment affirmed in part and reversed in part.