Allstate Ins. Co. v. Durham, s. A89A2309

• Decision Date: 14 March 1990
• Docket Number: Nos. A89A2309,A89A2354,s. A89A2309
• Citation: 194 Ga.App. 867,392 S.E.2d 53
• Parties: ALLSTATE INSURANCE COMPANY v. DURHAM. DURHAM v. ALLSTATE INSURANCE COMPANY
• Court: Georgia Court of Appeals

Page 53

392 S.E.2d 53

194 Ga.App. 867

ALLSTATE INSURANCE COMPANY v. DURHAM.

DURHAM v. ALLSTATE INSURANCE COMPANY

Nos. A89A2309, A89A2354.

Court of Appeals of Georgia.

March 14, 1990.

Gleason & Davis, John W. Davis, Jr., Brunswick, David J. Dunn, Jr., for appellee.

McMURRAY, Presiding Judge.

Bette H. Durham (plaintiff) brought an action against Allstate Insurance Company ("Allstate") to recover for fire losses which were allegedly covered under her Allstate homeowner's insurance policy. Allstate admitted that it issued a policy of insurance covering plaintiff's house in Fort Oglethorpe, Georgia and that plaintiff's house was severely damaged by fire on November 2, 1986, but denied liability for plaintiff's losses, claiming that the fire was the result of arson and that plaintiff made material misrepresentations of facts and circumstances in submitting her claim. Alternatively, Allstate claimed that any amount it paid toward mortgages on plaintiff's property "should be set-off from any amount demanded by the plaintiff in this Complaint."

The case was tried before a jury and the evidence revealed that plaintiff's homeowner's insurance policy limits were $77,000 for the dwelling house and $53,900 for personal property; that plaintiff attempted to sell her house before the fire for $58,900; that plaintiff lost a substantial amount of personal property as a result of the fire and that plaintiff's dwelling house had to be razed as a result of the fire. The evidence also revealed that there were two outstanding security instruments encumbering plaintiff's real property and that Allstate received assignments of these instruments after paying the remaining balance of $25,632.44 on the underlying debts. The jury returned its verdict, finding as follows: "House $58,900.00 less loan $25,632.44 Total $33,267.56 Contents $17,732.44 Grand Total $51,000.00 No bad faith on Ins. Co. No Lawyer Fees No charge on Mr. Owen Mrs. Betty H. Durham will retain the lot on which the house was on."

After the verdict was published and the jury dismissed, plaintiff's attorney made the following objection: "Your Honor, prior to the jury going out, at the bench, we did raise the objection to the form of the verdict in that the value for the house was set at less than seventy seven thousand dollars which is the stipulated amount in the policy. Under the statute, we would submit that--that the stated amount in the policy is taken as the conclusive value of the house and would object to the form of the verdict on that basis." The trial court overruled this objection and plaintiff subsequently filed a "MOTION TO CONFORM VERDICT AND JUDGMENT." In support thereof, plaintiff argued that Allstate should not be allowed to set-off the amount it paid for the assignments of the security instruments and that she should be allowed to recover the face amount of the policy for the loss of her house. In response, the trial court entered a "JUDGMENT " which provided, in pertinent part, as follows: "THE COURT HEREBY FINDS that the uncontradicted evidence presented in the trial of this case established that the plaintiff's dwelling was totally destroyed by the fire which occurred therein on November 2, 1986. THE COURT FURTHER FINDS that this dwelling was insured under the policy of insurance issued to the plaintiff by [Allstate] in the amount of SEVENTY-SEVEN THOUSAND DOLLARS ($77,000.00).

"Pursuant to O.C.G.A. Sect. 33-32-5(a) the jury, having decided to return a verdict for the plaintiff, was required to return a verdict in the amount of $77,000.00 as compensation for the loss of plaintiff's dwelling. However, the verdict actually returned by the jury specified the amount of FIFTY-EIGHT THOUSAND NINE HUNDRED DOLLARS ($58,900.00) as plaintiff's award for the loss of her dwelling. This amount being incorrect as a matter of law, it is the ORDER OF THE COURT that the verdict of the jury specifying $58,900.00 as an award to the plaintiff for the loss of her dwelling shall be and is HEREBY MODIFIED such that the plaintiff shall be awarded the amount specified in the policy of insurance, to wit: $77,000.00 for the loss of the plaintiff's dwelling." The trial court allowed this amount to be reduced by "$25,632.44 for mortgage payments expended on plaintiff's behalf ..."; awarded plaintiff "sole and exclusive title ..." to the remaining real property; declared that "any lien or encumbrance held on this property by or on behalf of [Allstate is] satisfied by the verdict of the jury ..." and directed that the security instruments encumbering said property be marked satisfied.

Allstate filed a direct appeal in Court of Appeals Case No. A89A2309, contending that "[t]he trial court erred in entering an Order which increased the jury's verdict in a matter of substance after the jury had been [dispersed]." Plaintiff filed a cross-appeal in Court of Appeals Case No. A89A2354, contending that the trial court erred in failing to further modify the jury's verdict and strike from the verdict rendered "the reference to the loan amount of $25,632.44, and the deduction of such amount from the total amount awarded" to plaintiff. Held:

"Under the provisions of OCGA § 9-12-9, the judgment and execution shall...