Big Bear Ranches, Inc. v. Georgia Farm Bureau Mut. Ins. Co.

• Decision Date: 30 November 1983
• Docket Number: No. 66505,66505
• Citation: 312 S.E.2d 378,169 Ga.App. 307
• Parties: BIG BEAR RANCHES, INC. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 378

312 S.E.2d 378

169 Ga.App. 307

BIG BEAR RANCHES, INC. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.

No. 66505.

Court of Appeals of Georgia.

Nov. 30, 1983.

Rehearing Denied Dec. 16, 1983.

Certiorari Denied Jan. 19, 1984.

J. Clinton Smith, Jr., Albany, for appellant.

Joel O. Wooten, Jr., John P. Partin, Columbus, Robert B. Whatley, LaGrange, for appellee.

SOGNIER, Judge.

Georgia Farm Bureau Mutual Insurance Company (Farm Bureau) filed the instant declaratory judgment action seeking a determination as to its obligations to afford coverage and a defense to legal actions filed against its insured, Big Bear Ranches, Inc. (Big Bear). Farm Bureau issued an insurance policy to Big Bear providing farmowner's coverage and farmer's comprehensive personal liability coverage. While this coverage was in effect, an irrigation pump and trailer that Big Bear had either rented or borrowed and was using was damaged by fire. Subsequently, Big Bear was sued by the owner of the equipment and was also named as a defendant in an action for judgment and an order of foreclosure of a mechanic's lien brought by the business that had repaired the equipment. Big Bear requested that Farm Bureau furnish a defense in the cases and pay any judgments rendered against it to the extent provided in the policy. The instant action ensued. The trial court granted Farm Bureau's motion for summary judgment on the main action and as to Big Bear's counterclaim for damages and attorney fees and denied Big Bear's motion for summary judgment. Big Bear appeals.

Appellant contends that the trial court erred in denying its motion for summary judgment and in granting summary judgment in favor of appellee, arguing that the court erroneously found that the damaged equipment fell within a certain policy exclusion and was not covered.

The exclusion in question appears in the policy under "Section II--Farmer's Comprehensive Personal Liability, I. Coverage G--Personal Liability: Exclusions: This coverage does not apply:

* * *

(j) to property damage to

(1) property owned by the insured or

(2) property occupied or used by the insured or rented to or in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control;

but part (2) of this exclusion does not apply to property damage included within the fire hazard...." (Emphasis supplied.)

The definition section of Section II of the policy provides: " 'fire hazard' includes property damage to any insured premises away from the farm, and to house furnishings therein if such property damage arises out of (1) fire, (2) explosion, or (3) smoke or smudge caused by sudden unusual and faulty operation of any heating or cooking unit...." It is not disputed that the pump and trailer were such property as is described in paragraph (j)(2) above. However, appellant contends that the fire damage to the pump and trailer was included within the fire hazard so that the exclusion does not apply.

Contracts of insurance should be construed in accordance with the intention of the parties. Ballinger v. C. & S. Bank, 139 Ga.App. 686, 688, 229 S.E.2d 498 (1976); Cincinnati Ins. Co. v. Gwinnett Furniture Mart, 138 Ga.App. 444, 446, 226 S.E.2d 283 (1976). "[T]he intention of the parties is determined from a consideration of the entire contract, and, if possible, all of the provisions should be so interpreted so as to harmonize one with the other. [Cits.]" Guarantee Trust Life Ins. Co. v. Davis, 149 Ga.App. 826, 828, 256 S.E.2d 76 (1979), aff'd in part, rev'd in part, 244 Ga. 541, 261 S.E.2d 336 (1979). Thus, the courts will "seek a construction which will give reasonable force and effect to all of such provisions without conflict." 13 Appleman, Insurance Law and Practice 43, § 7383, citing McLendon v. Carolina Life Ins. Co., 71 Ga.App. 557, 31 S.E.2d 429 (1944). "Moreover, where the language fixing the extent of the liability of the insurer is unambiguous and but one reasonable construction is possible, the court must expound the contract as made. [Cits.]" Davis, supra. See U.S. Fidelity etc. Co. v. Gillis, 164 Ga.App. 278, 281, 296 S.E.2d 253 (1982).

We now apply these principles of construction to the policy in the instant case. Appellant contends that the definition of fire hazard must be read as if it were worded: " 'fire hazard' includes but is not limited to property damage to any insured premises away from the farm and to house furnishings therein...." Thus, under appellant's reading of the definition of fire hazard, the comprehensive personal liability coverage afforded under the policy would extend not only to the rented or borrowed pump and trailer, but ostensibly to any property damage on the premises.

We agree with appellant that the word, "includes," which appears in the definition of fire hazard, is ordinarily a term of enlargement, not limitation, United States v. Gertz, 249 F.2d 662, 666(6) (9th Cir.1957), used to signify that something else is comprehended beyond the general language preceding the term. Publishers Bldg. Co. v. Miller, 25 Wash.2d 927, 172 P.2d 489, 495(4, 5) (1946). See cases collated Vol. 20A, Words and Phrases, Include, p. 144 et seq. However, "includes" may also be used as a term of limitation to indicate that the thing stated is the only thing included: "Under some circumstances, as where the context and wording of a written instrument make it clear that the term 'including' is used in a restrictive...