*1 SON, 47512. PARRIS & INC. v. CAMPBELL et al. 47513. UNITED STATES FIDELITY & GUARANTY v. CAMPBELL et al.
COMPANY Argued September 15, 1972 —Decided January Rehearing February 14, 1973.
1973 — denied *3 Spell, Hopkins Davis, Jr., Gresham, L. Penn John F. appellants. Gresham, for Jr., P. Thomas Joseph Szczecko,for Swertfeger, Simmons, Scott, Pike & appellees. Judge. Presiding the issues 1. Most of Eberhardt, by general law, contract controlled us are
before
being
Credit
Cherokee
matter of contract.
a
insurance
171).
SE2d
Baker,
119 Ga.
v.
Ins. Co.
mystery
sanctity
greater
about
and no more
"There is no
any
The same rules
other.
than
of insurance
a contract
Clay
apply
contracts.”
to it as to other
of construction
417).
North
Accord:
97 Ga.
Phoenix Ins.
(1) (58
Tye,
&c.Ins. Co.
British
"
purely
keep
is
. . .
insurance
in mind
well to
'It is
”
v. Federal
Mitchell
a matter of contract.’
App. 206, 208
three-year
extended from
was
2.
first
Plaintiffs
year’s
upon
payment
year
year
of an additional
three-year
expiration
premium
The
term.
until
by
approved
upon
form,
a standard
current
provides. It
the law
Commissioner as
State Insurance
compared
changes
with
in the
made some
prior policy.
qualifying
contract,
as a
It was a new
Oil Co.
are defined
Citizens
renewal as renewals
(2) (40
parties are free
Head,
The
(138 *4 alleged representations have been made to 3. The prior agent loss, insurer, to or after the whether the of the "fully can covered” the insured was to the effect coverage opinion or a to than an as amount to no more
169
contract,
legal opinion
which does
to the effect of
as
give
American
See
v.
fraud.
to actionable
not
rise
Self
(180
(2)
21);
App.
Ins.
Home
Co., Ga.
251
51
Nat. Ins.
(200
168);
App.
Montgomery,
173, 175
59 Ga.
Co. v.
(19
App. 1, 8
Parker, 67 Ga.
Co. v.
&c. Ins.
National Life
Paul-Mercury
409);
v.
Co.
St.
SE2d
Sherwin-Williams
(102
919),
App.
cits.;
Co.,
298
SE2d
and
Ga.
97
Indem.
(114
App.
Co.,
561
SE2d
101 Ga.
Ins.
v. Fire & Cas.
Fields
App.
540);
Metropolitan
Co.,107 Ga.
Ins.
Wellsv.
Life
(131
634);
Corp.,
Bryant
109 Ga.
v. Motors Ins.
834
App.
SE2d
(134
905);
Trucks,
Inc.,
Brown v. Mack
52
SE2d
(141
208);
App.
v. Coastal States
SE2d
App.
Sasser
111 Ga.
(147
5); Posey
17, 21
SE2d
v.
Ins.
Ga.
(154
App.
SE2d
And
115 Ga.
Ins.
Gulf
(129
System,
5. Nor does against agent estoppel it, who voiced an work —even against principal. & W. Co. Ga. v. S. or his Trust App. 268, 285 Fowler v. Cafeteria, 398); Posey Co., Acc. Ins. Preferred Sasser Ins. Gulf v. App. Co., Coastal States Life alleged expressions representations have 6. The a contract. too indefinite to constitute made are been specified Necessary with must risk be elements indemnity including definiteness, the amount premium. Co., 2 Todd v. German-American *5 94). 789, SE "The company insurance might willing have to goods been insure the stock of and premium, ten bales of for a certain hay yet unwilling, and premium, for the same to insure if it goods the same had in the of were stored sixty hay known that bales building.” Alston v. Greenwich Ins. SE And see Sasser v. Coastal States requirement certainty "The of supra. subject purpose
extends not to the matter and only consideration, contract, even parties, but also to the and place performance, the time and of where these are party essential. Its terms must such that neither can be them. It reasonably inequitable misunderstand would be left to carry a contract into effect where the court is parties by guess ascertain the intention of the mere or conjecture, might guilty erroneously because it be decreeing what intended or parties never contemplated.” Williams v. Manchester Building Supply
If it be conceded that
the representations
made,
were
what did they mean? Did a statement
that you are "fully
covered” mean that everything plaintiff
covered,
had was
or did it mean that certain items or types of property
were covered to their
value? Since each of
policies
full
provided limited coverage for the
in question,
items
how
could "fully covered” square with either of them? The
representations
are no more certain
provision
than a
an employment
in
contract
services
are
to be
performed
(Oliver
"at a price to
agreed
be
on”
Con
struction
Reeder,
Co. v.
955)),
an agreement
purchase
certain shares of stock "at a
price to be mutually agreed upon of not
$1,500.”
less than
Cox,
Martin
13 Ga. App. It is fully indefinite as an agreement
to sell "all the boxes wanted.”
McCaw
Felder,
Mfg. Co. v.
And for the reasons stated in other Divisions hereof the representations, made, even if did not constitute actionable fraud. representations alleged
7. The to have been made are ambiguous, uncertain and issued, but the delivered kept by plaintiff plain, entirely certain and free ambiguity coverage. as to the "[W]hen the limits unambiguous terms, here, as was done despite coverage, courts, their dislike of such have no *6 accept choice but to without alteration all such terms and liability limit thereto.” State Farm Mut. Auto. Ins. Co. v. (153 Sewell, 31, 223 Ga. 32 SE2d We do not deal with complete policy here, a binder but with a that was issued many and delivered months before the loss occurred. attempt expand coverage The by to or extend the by selling agent evidence of statements made to the "fully insured to the effect that the covered,” insured was plain provision and definite, thus convert a and certain indefinite, the contract into one ambig- uncertain and Liberty uous must fail. Co., Cf. Fowler v. Nat. Ins. Life (38 App. 60); 73 Ga. 765, 770 SE2d Sasser v. Coastal States App. supra. 17, 21, Ins. 113 Ga. Life temporary may parol,
8. While a binder be in Code § 56-2420, Ann. writing. the contract itself must be in It partly writing partly cannot be Georgia in and oral. Cas. (88 394); Hardrick, &c. Co. v. 709, 211 Ga. 712 SE2d Mitchiner v. Union Central 194, 195 Ins. 185 Ga. Life (194 parol policy. S6E Nor can there be a renewal of a Georgia Casualty Surety App. Rowell v. (1) (136 109 Ga. 631 917). Consequently, agent’s
SE2d oral operate could, event, statements to the insured in no to keep policy the first in effect. policy provides permission affecting
9. The that "No any provision exist, this insurance shall or waiver of be granted expressed writing valid, unless herein or Certainly added hereto.” there is no added written provision attempts coverage, which to add to the stated agent it nor is contended that there The was thus not is. orally modify authorized the contract. Ins. Gulf Life (10 App. Yearta, 43 Co. 63 Ga. SE2d right power, by 10. The courts have no more coverage construction, to extend the of a or to 172 they do insured than to the it more beneficial
make coverage. increase and contract rewrite SE2d Kellar, 458 213 Ga. Co. v. Prudential 394, 399 App. 94 Ga. 823); Morgan, Ins. Co. Pilot Life 102 Ga. Young, 765); Indem. Co. Southern SE2d (1) (117 Mut. Ins. Co. v. 882); States Cotton 914 App. 812, 814 Falls, App. 114 Ga. estoppel or by extended is not to be coverage
11. The
waiver
implied
'"The doctrines of
by waiver.
insurer,
or action of
the conduct
upon
based
estoppel,
of a
bring within
not available to
are
terms,
excluded
expressly
or risks
not covered
its
risks
Insurance,
903; Quillian
. . .’ 29 AmJur
therefrom
§
(3) (6 SE2d
Soc.,
App.
Assur.
Equitable
Williams,
& Cas. Ins. Co.
Doubrly
ALR
v. Carolina
Carter,
Ins. Co. v.
& Cas.
76), Life
Ga.
153),
affirmed
415).”
Ramsey,
Ins. Co. v.
Reserve Life
from the
or waiver results
estoppel
No
U.
McGlothin v.
S.
premiums.
and retention of
collection
*7
(3) (136
535);
Co.,
325
SE
App.
36
Nat.
& Cas.
Ga.
Life
(2),
Co.,
178
App.
58 Ga.
v.
Ins.
Doubrly
Carolina Life
Co., 114 Ga.
Kimsey
v. R. L.
Cotton
supra;
Ins. Co.
Pacific
(151
411, 413
541);
Acc. Ins.
Fowler v.
App.
Preferred
(2) (28
Co.,
13. That the 173 policy for himself what and ascertain examine his coverage Security Ins. &c. had is well settled. See he Life (2); Massey Gober, 60 404 v. Cotton States Co. v. Ga. Life Co., 794; Mut. Ins. 70 Thomson v. Southern Ins. Ga. 652); Waldo, 117 590 Hart v. Ga. SE 998); Givens, 43 Ga. Health &c. Ins. Co. v. Bankers 906); App. Newton v. Ins. Life Gulf 69); App. Equitable Assur. Soc. v. 55 Ga. Life (2)(192 90); Adams, v. Colonial Ga. Hatfield App. 630, &c. Ins. 102 Ga. Life Liberty Sanders, American Ins. Co. v. plaintiff appears received the It that the kept opening policy the mail and it without the something envelope Thus, he made for like nine months. loss, whatever, to determine what no effort until the after charged by policy law was. He was his under coverage. Security knowledge &c. Co. with (2), supra; Gober, Prudential Ins. Co. Sailors, Hatfield supra. App. 630, 632, &c. Colonial only contract, The insured was not free to examine duty so, done that he under to do and if he had he was a provided just coverage it have what would observed have wished to have he could him. If it was not what he renegotiated company contract, or, if the was his unwilling that, returned it as to do he could have negotiated unacceptable with another a contract probably company. have If he had done so it would greater premium demanded under involved a than was kept, for it delivered and which he the contract that was would have increased the risk. Cf. Cherokee Credit supra. App. 579, 584, . . Baker, "[I]f. Ins. Co. essentially different from the one [was] issued remedy plaintiff plaintiff desired, reject, tendered, the would have been to when *8 (20 48); Gilbert, 604, 93 607 SE written. Jones v. Ga. Avery, Empire Annuity & v. Mutual Ins. Co. Life 324).” (59 (2,3), App. 97 99 SE Mitchiner v. Union Central supra. policy Co., 194, 197, 185 Ins. Ga. "When a Life duly applicant insurance, delivered to the differs 174
materially
policy
applied
from the kind of
for which he
apply,
duty,
intended to
accept
it is
if he
not
his
does
desire to
policy
him,
the
issued to
to return or offer to
same,
time,..
return
within
the
a
.
reasonable
and if the
applicant neglects
to examine the
delivered to
binding
pay
him” the contract
is
and he must
premium.
426).
White,
Johnson v.
15. No reformation of the contract in this action, been, nor indeed could it have for neither the trial (State DeKalb) court Court of nor this court would have jurisdiction empowered grant of such an action or be (3)(5 it. Garrett, Fire Ins. Co. Ga. Hartford And see Mitchiner v. Union Central Ins. supra; 185 Ga. Davis v. United American appears pay 16. Since it insurer offered to has liability the full amount of its under force recovery effect at time of the loss there no can be for- bad faith. Cf. Banister v. National Fire Ins. when, Ga. Further, here, sought by there was no for the amount plaintiff recovery refusing there can be no for bad faith in pay A., amount demanded. Co. Morris of N. 4) (1, *9 true, plaintiff says 17. that to be Conceding everything of the right he shows no of save under the terms recovery force, in the insurer policy beyond pay. the offer of summary Judgments that reversed with direction judgment Hall, J., P. the be entered for defendant. JJ., Bell, J., Stolz, Pannell, concur. C. Quillian, and Clark Evans, JJ., Deen and dissent. A renewal of a of Judge, dissenting. policy in
Deen, in place it is a issued contemplates policy that surance amount, of, under the same terms and for the same and covering the but a different original policy, conditions as v. U. S. F. & G. Long Grocery of time. Bros. Co. period Fidelity De Jernette v. 130 Mo. SW Y., Fla. Cent. & P. Ky. Cas. Co. of N. SW 674; 99 F Fire &c. Surety Springfield R. Co. v. Amer. (Tex. App.) Motor Co. Co. Hubbs-Johnson 248; Tp. S. W. 2d Schock v. Penn Mut. Fire Ins. Assn. of Super. Lancaster 148 Pa. A2d over a of with period years plaintiff Where the dealt an agency insurance which wrote and delivered insurance him in policies coverage, several different areas of and insurance, such had a to renew agency general authority payments being specific delivery made not on a basis of intervals, policies periodic of but rather at time and the agency automatically wrote and forwarded to the insured homeowner, covering a renewal his interest as a policy predecessors with assurance that such and its a repre- afforded him this constituted coverage,” "full sentation in by agent that was fact a (that is, previous policy subject renewal to the same coverage) terms and conditions other than time of it full coverage. afforded him If such statement was deceiving made with the knowingly falsely purpose plaintiff and if he did in fact on it and was deceived rely and as a result of these facts suffered a thereby, monetary loss, he a has shown facts which should be submitted to wilful and jury support of an action based on a intentional tort.
I am Judge authorized to state that Chief Bell and Judge Evans concur in this dissent.
47765. COMPANY, BROOKS HOME CREDIT INC. Judge. upon This is an action for libel based a Quillian, attorney letter written employer of the defendant to the plaintiff. alleged It was that this letter defamatory false, malicious, contained allegations scandalous and plaintiff *10 to the effect that had been litigation, pay legitimate involved in had refused to neglected keep previous debts, and had and failed to agreements. summary judgment predicated
The defendant moved for by on four affidavits four named individuals. The trial judge having order, in his final after considered the pleadings depositions question, and the decided that genuine any there was no issue as to material fact and judgment the defendant was entitled to a as a plaintiff appeals judgment matter of law. The from this appeal specifically required and in his notice of depositions by omission of the four the named indi- viduals. Held: Georgia upon
It is still the law of that the burden is party asserting appeal error on to show such error Ga., the record. Smith v. State Herring Herring, judgment depositions Here the was based on four appellant’s request which at the omitted. have been Appellant argues question presented that the here purely depositions a matter of law and that such are necessary not for determination of the issues. This depositions affirmatively would not be true since if the allegations petition established that were grant summary judgment incorrect then the in favor proper. proof of the defendants would be Since the necessary for determination of the issues of this case