Assurance Co. of America v. Bell
| Decision Date | 02 December 1963 |
| Docket Number | No. 1,No. 40219,40219,1 |
| Citation | 108 Ga.App. 766,134 S.E.2d 540 |
| Parties | ASSURANCE COMPANY OF AMERICA v. John R. BELL |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The function of a duly authorized insurance adjustor is to adjust and settle losses, and the company which he represents will be bound by his acts within the apparent scope of his authority. The acts of the insurance adjustor here in receiving and acting upon an oral notice of loss where the policy required written notice; in accepting liability on the claim and directing the insured to have the property repaired prior to requesting or receiving proofs of loss, and in agreeing to the amount of loss, where the policy required written proof of loss and written agreement as to the amount of settlement, constitute estoppels against the defendant to insist upon these defenses.
2. Under the general rule that the action shall be brought in the name of the party in whom the legal interest in the contract is vested, as well as under the particular provisions of this policy, the plaintiff as named insured under a homeowners policy properly brought this action seeking recovery of sums expended by him to repair damage to a guest's automobile on his premises caused by his three year old son.
3. The clause in the policy of insurance excluding 'loss arising out of the ownership, maintenance, operation, use, loading, or unloading of any land motor vehicle' is not applicable under the allegations of this petition. The act of the plaintiff's infant child in releasing the emergency brake and allowing an automobile of an invitee on the premises to roll downhill as a result of which it was damaged was not a use of the automobile as a motor vehicle within the meaning of the exclusion.
4. A parent may be guilty of primary negligence in failing to exercise reasonable care to prevent a child under his control from creating an unreasonable risk of harm to third persons, where he has knowledge of facts from which he should reasonably anticipate that harm will otherwise result. Where, as here, an authorized agent of the insurance company authorized to investigate and settle claims, accepted liability under these conditions, agreed on behalf of the company to reimburse the plaintiff for the expenses incurred allegedly due to his negligence, and further instructed him to have the repairs to the automobile performed by a garage at which the defendant obtained a discount but which would have resulted in additional expense to the plaintiff, the defendant may not after the expenses have been incurred repudiate its agent's agreement on the contention that there is in fact no liability on the part of the insured and consequently no coverage under the policy.
The plaintiff, John Robert Bell, was insured by the defendant Assurance Company of America under a homeowner's policy which cintained the following coverage in Section II: Insured is defined as '(1) the Named Insured, and (2) if residents of his household, his spouse, the relatives of either, and any other person under the age of 21 in the care of an Insured.'
An invitee visiting the plaintiff's wife parked her automobile in the plaintiff's driveway, and the plaintiff's three year old son entered the car while it was unattended, released the emergency brake, and allowed it to roll down the driveway and against a telephone pole as a result of which it sustained damages amounting to over $400. The defendant refused to pay on the basis that the loss was not within any coverage of the policy. The plaintiff, after paying the repair bill, brings this action in three counts, the first two being based on coverage G and seeking a primary recovery of $250, and count 3 being based on coverage E and seeking recovery for the amount of the repair bill. General demurrers to each count of the ground that no cause of action is set out were overruled, and the defendant excepts.
Hurt, Baird & Freeman, Benj. B. Blackburn, III, Atlanta, for plaintiff in error.
Jones, Bird & Howell, Jeremiah Luxemburger, Atlanta, for defendant in error.
1. While the covenant to pay for property damage as well as bodily injury under coverage E depends upon negligence of an insured, neither coverage F involving medical payments nor coverage G allowing up to $250 for property damage 'caused by an insured' depends on a showing of negligence or legal liability to pay on the part of anybody. The policy provides that when an occurrence takes place written notice shall be given to the company; that as to coverage G proof of loss shall be filed within 60 days and no action shall lie against the company until after 30 days from the filing thereof, and that, as to coverage E, no action shall lie unless as a condition precedent the amount of the insured's obligation to pay has been finally determined either by judgment or by written agreement between the insured, the claimant, and the company.
The various counts of the petition allege that the loss occurred on March 29, 1962; that on April 4, plaintiff's wife acting as his agent orally notified Arthur Pierce, authorized agent and adjustor of the defendant, of the loss, and Pierce directed her to obtain an estimate for repair; that after obtaining the estimate she again talked with Pierce, who instructed her to take the car to a named automobile repair shop to be repaired, although she had procured a lower estimate at another shop, he stating the company would obtain a discount at this garage, and he further expressly and impliedly represented that the defendant would assume responsibility for the repairs. Plaintiff, relying on these representations and instructions, did take the automobile to the garage designated by the adjuster and had it repaired at a substantially higher cost than he might otherwise have contracted for. Thereafter, on April 9, the defendant through its adjuster Pierce notified the plaintiff in writing that it denied liability because of lack of coverage under the policy. At no time was further information requested of the plaintiff, nor was the denial of liability based on any lack of compliance by the plaintiff with any policy provision.
'Clauses in insurance policies which prohibit waivers unless indorsed thereon refer only to the provisions which enter into the contract of insurance, and do not affect conditions which are to be performed after loss, such as furnishing proofs of loss and giving notice.' Corporation of Royal Exchange Assurance of London v. Franklin, 158 Ga. 644, 124 S.E. 172, 38 A.L.R. 626. The unqualified refusal to pay estopped the defendant from insisting upon either written notice or proof of loss. Hanover Fire Ins. Co. of N. Y. v. Scroggs, 90 Ga.App. 539, 547, 83 A.E.2d 295; New York Underwriters Ins. Co. v. Noles, 101 Ga.App. 992, 115 S.E.2d 474. And, since it is alleged that the person with whom the plaintiff's wife dealt was an authorized agent and adjuster for the company, an agreement between the adjuster and the insured actually executed by the insured would also constitute an estoppel to urge the provision in the contract that the amount of the insured's obligation to pay, if not established by the judgment of the court, must first be established by written agreement of the insured, the claimant, and the company. The recognized function of an adjusting agent of an insurance company includes adjusting claims and paying losses. Underwriter's Agency v. Sutherlin, 55 Ga. 266(2). This includes every act within the apparent scope of his authority. Western Fire Insurance Co. v. Peeples, 98 Ga.App. 365, 368, 106 S.E.2d 91; Couch on Insurance 2d, Vol. 4, 262 ts 26:326. Where an authorized adjuster furnished by the insurance company for the purpose of settling claims agrees with the insured that the company is liable and authorizes the insured to incur expense in the settlement of the claim, and the insured in following the adjuster's directions not only incurs the expense of paying a claim for which he might be liable in any event, but incurs additional expense as a result of taking the vehicle to the only place authorized by the adjuster for the repairs, if the claim is within the apparent coverage of a valid and subsisting policy the company will be estopped to contest either the fact or amount of the liability.
2. Although this insurance policy fails to designate the party who may bring an action against it for failure to pay according to its terms, it does, as to coverage G insuring the property of others against damage up to $250, contain an unqualified promise to pay for 'loss of property of others caused by an insured,' and also an agreement under this coverage that the company 'may pay for the loss in money or may repair or replace the property and may settle any claim for loss of property ether with the Insured or the owner thereof.' There is no doubt but that the plaintiff's infant son was an insured under the policy and that he caused the damage, according to the allegations of the petition. There is no doubt but that the plaintiff is also the named insured and owner of the legal title to the policy and is therefore a person with whom the insurance company agreed that it might settle a claim for loss. The language 'an insured' makes the company liable for property damage...
To continue reading
Request your trial
-
Southeastern Fire Ins. Co. v. Heard
...court interpreted "use" in the context of the state uninsured motorist statute, not an insurance policy. In Assurance Co. of America v. Bell, 108 Ga.App. 766, 134 S.E.2d 540 (1963), the court defined use as it appeared in an insurance policy. The word, in connection with the phrase "arising......
-
Lebanon Coach Co. v. Carolina Cas. Ins. Co.
...the words ownership and maintenance ..., must be taken in its usual meaning of use of a motor vehicle.' Assurance Company of America v. Bell, 108 Ga.App. 766, 772, 134 S.E.2d 540 (1963). Of course if the term 'use' is construed to embrace all of its possible meanings and ramifications, prac......
-
State Farm Mut. Auto. Ins. Co. v. Partridge
...1028, 96 N.Y.S.2d 140, with Great American Indem. Co. of New York v. Saltzman (8th Cir. 1954) 213 F.2d 743 and Assurance Co. of America v. Bell (1963) 108 Ga.App. 766, 134 S.W.2d In view of the above approach the fact that an accident has been found to 'arise out of the use' of a vehicle fo......
-
Stewart v. Harvard
...rare that its absence is no indication of a lack of reasonable care. (Citation and punctuation omitted.) Assurance Co. of America v. Bell, 108 Ga.App. 766, 774(4), 134 S.E.2d 540 (1963). (Punctuation omitted.) Id. at 268, 441 S.E.2d 439. See also Saenz v. Andrus, 195 Ga.App. 431, 432(2), 39......
-
CHAPTER 4
...140] with Great American Indem. Co. of New York v. Saltzman, 213 F.2d 743 (8th Cir. 1954) and Assurance Company of America v. Bell, 108 Ga. App. 766 (1963).) In view of the above approach the fact that an accident has been found to “arise out of the use” of a vehicle for purposes of an auto......
-
Torts
...common law [of Georgia] and are predicated on something more than the mere parent-child relationship") and Assurance Co. of Am. v. Bell, 108 Ga. App. 766, 766-67, 134 S.E.2d 540, 540-41 (1963) ("A parent may be guilty of primary negligence in failing to exercise reasonable care to prevent a......