Atlanta Fire Systems, Inc. v. Alexander Underwriters Gen. Agency, Inc., 76001
| Decision Date | 08 February 1988 |
| Docket Number | No. 76001,76001 |
| Citation | 185 Ga.App. 873,366 S.E.2d 197 |
| Parties | ATLANTA FIRE SYSTEMS, INC. v. ALEXANDER UNDERWRITERS GENERAL AGENCY, INC. |
| Court | Georgia Court of Appeals |
Fletcher Thompson, Atlanta, for appellant.
Karl M. Terrell, Atlanta, for appellee.
On January 2, 1979, a fire began in a sandwich shop and spread to several other businesses located in the same small shopping center. The appellant, Atlanta Fire Systems, Inc., had installed a fire alarm system in the sandwich shop, and was insured under a policy issued by the International Indemnity Company. Several lawsuits resulted, in which the appellant was named as one of the defendants. Eventually, the insurer participated in a settlement of all the claims, under which it contributed $20,000 to a pool to be distributed amongst nine claimants. The insurer later assigned its rights under the policy to the appellee, Alexander Underwriters General Agency, Inc.
The appellee commenced this action against the appellant, seeking to recover $4,500, representing the total amount due as deductible under the policy ($500 per claim). Following a bench trial, the trial court entered judgment for the appellee for that amount, and this appeal resulted. Held:
1. In the appellee's complaint, this action was identified as a suit on an account. At the trial (as well as in a preceding summary judgment motion), however, the action obviously was based on the insurance contract, specifically the endorsement providing that the insured had to pay a $500 deductible for each claim (as opposed to each occurrence). The appellant objected to the admission of the evidence concerning the insurance contract on the basis that the appellee was asserting a different cause of action at the trial. In response to the objection, the appellee suggested that the evidence certainly would amend the complaint, and that, in any event, the appellant could not be surprised at trial since all along it had been clear that the action was based on the insurance contract. Evidently, the trial court agreed with the appellee since it overruled the objection.
Pleadings are amended by the evidence when the issues not raised by the pleadings are tried by express or implied consent of the parties; when one party objects, however, amendment of the pleadings is not so "automatic." See Burger King Corp. v. Garrick, 149 Ga.App. 186, 188, 253 S.E.2d 852 (1979). Nevertheless, "[i]f evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of the evidence would prejudice him in maintaining his action or defense upon the merits." OCGA § 9-11-15 (b). It is apparent in the instant case that the appellant failed to satisfy the trial court that it was surprised by the appellee's contractual claim and unprepared to defend against it in its merits. We are similarly unpersuaded.
2. The appellee's assistant vice president of claims testified that the original insurance policy and endorsement had been forwarded to the insured, but that the insurer maintained a copy of the policy that for all practical purposes was identical to the original policy. The only difference would be that the company's copy...
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