Appellant Joseph G. Rice d/b/a Curtis Mathes and Rice Home Electronics Corporation (Rice) appeals from the judgment entered and the order of the trial court denying his motion for new trial and reformation of verdict.
This case involves an action brought by Rice for recovery under a business policy of insurance issued to him by appellee State Farm Fire & Casualty Company (State Farm). In September 1988, appellant reported that his business had been burglarized. The inventory in the store was floor-plan financed by ITT Commercial Credit (ITT) which, at the time of the burglary, had an interest in the missing merchandise of $25,184.11. Mr. Rice filed a “Sworn Statement in Proof of Loss” with State Farm, claiming a loss of merchandise of approximately $30,500 in value. ITT was a loss payee under the policy.
Apparently ITT filed a separate suit, pursuant to the terms of its floor plan security agreement, as a creditor of appellant to obtain compensation as to certain inventory missing and not paid for by appellant. The ITT suit was settled by execution of a settlement agreement and mutual release. This agreement and release pertinently provided that ITT and the Curtis Mathes Corporation (appellant’s franchisor) fully relinquished any and all claims to any future insur
The trial court subsequently granted partial directed verdict for State Farm, ruling that appellant could not recover for the amount owed to ITT at the time of the loss. The trial court also removed from consideration of the jury the issue of bad faith and attorney fees pursuant to OCGA § 33-4-6. However, the trial court sent appellant’s entire claim (other than bad faith and attorney fees) to the jury. The jury returned a verdict in favor of appellant for $26,592.70; pursuant to its earlier ruling, the trial court deducted $25,184.11 (the established amount of ITT’s security interest in the missing inventory) from the verdict, and entered judgment for appellant in the sum of $1,408.59. Held:
1. Appellant asserts the trial court improperly withdrew the issue of bad faith and attorney fees (OCGA § 33-4-6) from consideration of the jury by granting partial directed verdict to appellee as to this issue.
There exists substantial, unrefuted evidence in this case that there was no visible sign of pry marks or breaking and entering into the doors of either appellant’s business or into the adjacent premises being used by a construction company. The adjacent premises were separated from appellant’s business by only a fire wall. Further, there was evidence the sheetrock section that was found removed from between the two premises, at a height of at least eight feet from the floor, had a single pry mark on appellant’s side. There were no scuff marks or dirt marks found on either the construction company’s or appellant’s side of the common wall, which would indicate that someone had slid down the wall. Neither was any of the dust disturbed on the tops of the refrigerator or the boxes located in proximity to where the sheetrock had been removed. The location of the only pry mark found made it appear that the sheetrock had been removed from appellant’s side of the wall. The piece of sheetrock that was removed was the only one that could have been removed without bumping into some object located against appellant’s side of the wall. Moreover, although it had rained very hard the night before, no muddy footprints were found in either appellant’s or in the construction company’s business areas. Further, although several lines were in the building, a single phone line had been cut or broken so as to disable the line from
The auditor for ITT testified that Rice gave her a list of allegedly stolen items. She did a complete floor check audit of retail, rental, and lease items, and found some discrepancies in Rice’s list. Of the approximate one hundred items, which Rice listed as stolen, five or six were found in stock and about nine items were found to have been rented out. At the time of the theft, Rice was in default on his principal payment to ITT by several months; he also owed back store rent.
Although requested by the police for serial numbers of the property determined to be stolen, Rice never provided that information to the policemen who were investigating the incident. State Farm did not receive the proof-of-loss form until March 15, 1989, although the alleged break-in occurred on September 10 or 11, 1988.
A member of State Farm’s senior referral unit for suspicious claims testified he also observed no pry marks, footprints or scuff marks on the construction company side of the wall, and found no sign of forced entry on doors. Rice declined to sign a consent form for release of certain information, such as phone call records, bank records, and various business records. State Farm never supplied the police with any serial numbers because they never got a confirmed list from Rice verifying which items by model number and serial number had been stolen. The senior referral unit member also made a request of both Rice and an independent contractor hired by Rice for a list of all former and current employees, but he never was given this information.
Evidence was also admitted without objection, pertaining to Rice’s past claims history. Previously, Rice had taken his station wagon to a local service center to have tires installed; he was told tire installation would take a couple hours; while waiting, he was observed by a vending machine located directly in front of the center’s alarm box; the alarm box was subsequently found to have been moved out of position; after an hour passed, Rice departed without waiting for his car; he was informed later that his car was ready, but he did not return that day to pick it up; that night the service center was broken into, Rice’s car keys were obtained from inside the premises, and only his car, which was parked outside, was stolen; a switch on the alarm subsequently was found to have been moved so that the phone-alarm system was deactivated; Rice’s vehicle was found the next day in Ala
Rice and Townsend (the independent contractor working for Rice) both testified and denied any complicity in the break-in of Rice’s business. Rice in essence asserted that his inability to respond quicker to the demands for information was predicated in large measure on the seizure of his office computer and paperwork by ITT.
After Rice filed suit, State Farm denied Rice’s claim on the basis that “no burglary actually ever occurred and that Mr. Rice had concealed and misrepresented material facts to [State'Farm] in the course of [the insurance company’s] investigation.” From the inception of the claim, the evidence was in conflict whether a break-in and burglary occurred as reported by Rice, and whether Rice concealed or misrepresented material facts to State Farm.
Appellant’s reliance on
Gary v. State,
The trial court granted partial directed verdict to State Farm on the issue of bad faith and attorney fees relying on
Massachusetts Bay Ins. Co. v. Hall,
2. Appellant asserts the trial court erred by failing to enter judgment in favor of appellant for that portion of the verdict which was owed to ITT as loss payee under the terms of the policy in question at the time of the loss.
ITT is not a party in this suit. Appellant’s assertion that the ITT settlement and release agreement included an assignment to him of the rights of ITT against State Farm is without merit. The document is clear and unambiguous, and does not contain any assignment of rights to appellant. Where, as here, the terms of a contract are clear, unambiguous, and capable of but one reasonable interpretation, the court will look to the contract alone to find the intent of the parties; in such instances, no construction is necessary or even permissible.
Howell Mill/Collier Assoc. v. Pennypacker’s,
The trial court concluded that appellant’s insurable interest in the missing inventory was limited to the difference between ITT’s insurable interest as loss payee and the market value of the property at the time it was stolen. The court further concluded that appellant could not assert the rights of ITT in the absence of a valid assignment of those rights to appellant.
The record establishes that ITT relinquished its right to pursue its claims for the indebtedness against appellant without relinquishing its security interest in the missing property simply by releasing appellant from certain liability, including liability for any obligation to pay the amount due and owing ITT, at the time of the release, under the floor-plan financing agreement. The issue then becomes whether appellant had an insurable interest in the allegedly missing inventory, which would authorize his recovery of an amount equal to ITT’s insurable interest as loss payee under the policy, in addition to appellant’s actual loss, when ITT had not assigned to appellant its rights as loss payee.
This issue presents a case of first impression for this court. In this case, the policy contained two loss payable endorsements naming as loss payee ITT and Curtis Mathes Corporation, respectively. These endorsements expressly provided that a “loss, if any, under this policy shall be payable to the above named loss payee as lender, mortgagee, or trustee, as interest may appear.” (ITT’s interest at time of theft was $25,184.11.) Although not directly in point, the case of
Simmons
As above determined, ITT’s interest as loss payee under the policy was not extinguished by its settlement agreement with and release of appellant, nor did it thereby assign its interest as loss payee to appellant. We are satisfied that the right of an insured to insurance proceeds, claimed pursuant to an insurance contract containing a loss payee endorsement “as interest may appear,” is determined at the time of loss and to the extent of the insured’s established actual loss. Cf.
Ga. Farm &c. Co. v. Brewer,
Appellant has cited, in addition to certain Georgia precedent, certain decisions from courts of other states. The decisions of other state courts, like the opinions of legal scholars, constitute only secondary authority before this court; these decisions are mere opinions, which are not binding upon us, and will be followed only in the event this court considers them sound and compatible with the orderly and fair development of the law of this state. See
Thompson v. Eastern Air Lines,
3. Appellant, relying upon the statutory provisions of OCGA § 7-4-15, asserts the trial court erred by failing to include prejudgment
OCGA § 7-4-15 pertinently provides: “All liquidated demands, where by agreement or otherwise the sum to be paid is fixed or certain, bear interest from the time the party shall become liable and bound to pay them; if payable on demand, they shall bear interest from the time of the demand.”
In support of this enumeration, appellant argues that the damages in issue became liquidated when appellant made his demand for payment upon submitting his claim by letter of May 18, 1989. This letter pertinently states: “This letter represents a formal demand for payment on the above referenced claim [Claim No. 11-G009-464]. [Appellant] had completed and mailed to your office the appropriate ‘Sworn Statement in Proof of Loss’ regarding the loss by theft which occurred in September 1988 and has yet to receive payment according to the terms of the policy.” However, the “Sworn Statement in Proof of Loss,” pertaining to Claim No. 11-G009-464, reflects that “the interest of the insured in the described property was -0- Unk,” and that the “insured hereby claims of this company . . . under this policy the sum of $30,500.00 approx.” It is clear that contrary to appellant’s contention, the demand letter of May 18, 1989, on its face did not demand liquidated damages in a fixed or certain amount. Rather, the “Sworn Statement in Proof of Loss” incorporated by reference into the demand letter made claim merely to an approximate amount. “A sum is liquidated when it is certain how much is due and when it is due.”
Turner Constr. Co. v. Electrical Distrib.,
Additionally, the record establishes that a bona fide dispute existed as to the amount, if any, of the principal indebtedness. Although appellant asserted a missing property loss of $30,500, the jury rendered a verdict in the amount of only $26,592.70. The trial court properly reduced that amount on judgment to $1,408.59 in favor of appellant. An amount is unliquidated where, as here, there is a bona fide dispute as to principal indebtedness.
Federal Ins. Co. v. Nat. Distrib. Co.,
The issue of prejudgment interest, pursuant to OCGA § 13-6-13, where contract damages are unliquidated is not before this court for adjudication in this appeal.
Judgment affirmed.