Brewer v. Southeastern Fidelity Ins. Co.
| Decision Date | 16 October 1978 |
| Docket Number | No. 56397,56397 |
| Citation | 249 S.E.2d 668,147 Ga.App. 562 |
| Parties | BREWER v. SOUTHEASTERN FIDELITY INSURANCE COMPANY et al. |
| Court | Georgia Court of Appeals |
Peugh & Bradley, W. B. Bradley, Milledgeville, for appellant.
Walter A. Scott, Irwinton, Jones, Cork, Miller & Benton, Thomas C. Alexander, Carr G. Dodson, Macon, for appellees.
Plaintiff Brewer appeals from the grant of summary judgment to defendant Southeastern Fidelity Insurance Company (Southeastern). Mr. Brewer had purchased automobile insurance for several years through Mr. Raymond Bacon, owner of Bacon Insurance Agency, from Southeastern. On March 31, 1976, the existing insurance policy on plaintiff's two vehicles expired. On or about that date he contacted Mr. Brewer with regard to renewing the policy. Mr. Brewer stated that on March 31, 1976, and later on April 8, Mr. Bacon assured him he "was insured under a binder and I had insurance with Southeastern . . ." Further, that on those dates and "upon previous business dealings with Raymond Bacon (he) represented himself to me as having the ability and authority to sell me insurance with Southeastern . . . to be effective upon the date of agreement between myself and Raymond Bacon."
These statements are denied by Mr. Bacon. Both he and Southeastern stated that he was an independent insurance agent and did not represent Southeastern. Mr. Bacon stated that Mr. Brewer received a quote of premium from him after the old policy had expired and told him it was "high," and he wanted to check the price with another insurance company. This was on April 8, 1976. On April 12, Mr. Brewer came to Mr. Bacon's office and renewed his insurance coverage. The following day Mr. Brewer returned to his office and told him he had an accident on April 10. He had not mentioned the accident on April 12 when renewing his insurance. Southeastern denied the claim and plaintiff brought this action. The court granted summary judgment for Southeastern and plaintiff appeals. Held :
The liability of defendant Bacon is not in issue in this appeal. Both Brewer and Southeastern agree that the principal issue is whether or not there was an agency relationship between Bacon and Southeastern. Mr. Bacon submitted evidence that he was the sole owner and employee of Bacon Insurance Agency. He was an independent insurance agent and acted as an insurance broker for several insurance companies including Southeastern. He denies that he ever informed Mr. Brewer that he was an agent for Southeastern.
An affidavit of Southeastern's Vice President attested to the fact that Mr. Bacon was not a contract agent for Southeastern. Mr. Bacon had always requested coverage through Southeastern's general agent, Casualty Underwriters, Inc., of Decatur, Georgia.
The plaintiff's complaint alleged Bacon was an agent for Southeastern, "and as agent for Southeastern . . . refused to perform under the terms of the contract created on March 31" when he alleged Bacon orally informed him he was covered by an insurance binder with Southeastern.
"The bare assertion or denial of the existence of an agency relationship is a statement of fact when made by one of the purported parties to the relationship; but when made by an outsider, bare assertions or denials are merely conclusions of law." Salters v. Pugmire Lincoln-Mercury, Inc., 124 Ga.App. 414, 184 S.E.2d 56; Chas. S. Martin Distributing Co. v. Foster, 140 Ga.App. 12, 13, 230 S.E.2d 77. "The affidavit(s) of (Mr. Bacon and Southeastern's Vice President) denying the existence of agency must be received as evidence of a fact, which cannot be overcome by conclusionary affidavits . . ." Oglesby v. Farmers Mut. Exchange, 128 Ga.App. 387, 390, 196 S.E.2d 674, 676. Furthermore, Mr. Brewer's testimony was equivocal, i. e.: "I thought he worked for Southeastern cause that's who he had the insurance with . . . (Q . . . there wasn't anything on the glass that said Southeastern Fidelity, Raymond Bacon,...
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