American Ins. Co. v. Bateman, 46679
| Decision Date | 24 November 1971 |
| Docket Number | No. 1,No. 46679,46679,1 |
| Citation | 186 S.E.2d 547,125 Ga.App. 189 |
| Parties | AMERICAN INSURANCE COMPANY v. Mrs. S. T. BATEMAN et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Rulings on a motion for summary judgment which do not affect the interest of the appellant may not be enumerated as error by it. Where appellant's only interest in this litigation is its liability to the plaintiffs under a homeowner's insurance policy following a fire loss to a building under construction, it is not concerned with limitations placed on the funds after they reach the hands of the insured, nor with priorities between creditors as to the funds of another policy issued by another insurance company and covering only the interest of the builder.
2. The beneficiary of a homeowner's insurance policy who contracted for the construction of a residence was entitled, under the terms of the policy, to the actual cash value of the dwelling under construction, including building materials and supplies on the premises without deduction due to the fact that under the terms of the building contract he was to pay the contractor only upon delivery and acceptance, and without regard to the fact that the contractor's own loss would be indemnified to him by another insurance company which insured the liability of the contractor.
The Batemans, as owners of certain property, entered into a contract with Godwin to erect a residence, and took out with appellant American Insurance Company a homeowner's insurance policy which insured the dwelling during and after construction for its actual cash value. The building contract provided that Bateman should owe nothing until the house was completed and accepted, at which time he would pay the full construction cost of $15,800. FHA as mortgagee deposited $15,800 in a bank for Bateman's use and was named loss payee in the contract of insurance. Godwin in turn took out a builder's risk policy with Insurance Company of North America naming Farmers Bank of Pelham as loss payee, the bank having lent Godwin $14,000 upon the security of an assignment of the proceeds of the building contract.
At a time when the structure was uncompleted but had, according to some of the testimony, a value of about $16,500, it was totally destroyed by fire. Claims of lienholders, including various subcontractors and materialmen, totalled over $11,000. Godwin, in addition to sums borrowed for this construction, had used a part of the borrowed money on other construction projects, and his bank account was overdrawn. Under the circumstances the insurance companies refused to pay and Bateman brought an action against both insurers, the bank, the FHA, the contractor and the lienholders seeking a judgment against his insurer, the appellant here, and further seeking a certain relief as to the other parties. This was followed by a motion for summary judgment, after which the court entered an order finding both insurers liable to their respective insureds, directing payment by the Insurance Company of North America to Godwin and the bank as their interests may appear in an amount stipulated by the parties to be $13,890, Godwin's debt to the bank to be paid out of this fund and the bank thereupon to release the construction fund of $15,800 deposited therein by Bateman to his lender, the FHA. It was further directed that Bateman's recovery from appellant, being the actual cash value of the uncompleted house, should be held by Bateman in favor of certain listed lienholders whose liens were stipulated to be valid and properly filed. The question of the amount due as actual cash value was left open for jury determination.
Frank C. Vann, Camilla, Smith, Cohen, Ringel, Kohler, Martin & Lowe, Sam F. Lowe, Jr., Robert W. Beynart, Atlanta, for appellant.
Ben L. Bateman, Robert E. Hughes, Frank S. Twitty, Jr., James C. Brim, Jr., Camilla, H. Thaxton Monk, Jr., Pelham, fo appellees.
Fred B. Hand, Jr., Pelham, amicus curiae.
1. (a) 'Rulings which do not affect the interests of the appellant or plaintiff in error may not be assigned as error by him.' 5 C.J.S. Appeal and Error § 1497, p. 829; Lively v. Oberdorfer, 216 Ga. 673, 119 S.E.2d 27 and cit.; Hoffman v. Chester, 201 Ga. 447, 451, 39 S.E.2d 857. The American Insurance Company as a defendant here is interested only in...
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