E. C. Long, Inc. v. Brennan's of Atlanta, Inc., 56793
| Court | United States Court of Appeals (Georgia) |
| Writing for the Court | QUILLIAN |
| Citation | 252 S.E.2d 642,148 Ga.App. 796 |
| Parties | E. C. LONG, INC. v. BRENNAN'S OF ATLANTA, INC. |
| Docket Number | No. 56793,56793 |
| Decision Date | 29 January 1979 |
Page 642
v.
BRENNAN'S OF ATLANTA, INC.
Decided Jan. 5, 1979.
Rehearing Denied Jan. 29, 1979.
Page 643
[148 Ga.App. 805] Carter, Ansley, Smith & McLendon, Ben Kingree, A. Terry Sorrells, Atlanta, for appellant.
Long, Weinberg, Ansley & Wheeler, Rosa B. Lord, J. Kenneth Moorman, Hansell, Post, Brandon & Dorsey, Hugh E. Wright, Cotton, Katz & White, J. Timothy White, Atlanta, for appellee.
[148 Ga.App. 796] QUILLIAN, Presiding Judge.
Defendant, E. C. Long, Inc., appeals from the grant of a partial summary judgment, striking three of its defenses to an action by the plaintiff, Brennan's of Atlanta, Inc., for damages arising from an explosion and fire which destroyed the proposed Brennan's restaurant [148 Ga.App. 797] at 103 West Paces Ferry Road, Atlanta.
Brennan's of Atlanta, Inc., purchased a "James River Georgian Mansion" located on West Paces Ferry Road for the purpose of converting it into a restaurant. They contracted with E. C. Long, Inc., as general contractor, to renovate and convert the residence into a restaurant. Long contracted with B & W Service Company to perform certain grading work. On July 17, 1972, B & W bulldozed a tree and when the tree was uprooted, a gas line which had passed through the roots was broken. It is alleged that gas from the broken main seeped into the mansion. An explosion and fire followed and the mansion was destroyed.
Brennan's had purchased the mansion for $300,000. It carried the property on its books as the land having a value of $170,000 and the mansion having a value of $130,000. Brennan's had procured insurance on the mansion and was paid a total of $130,000 by the three insurers. Brennan then brought this action against Long, B & W Service Company, and the Atlanta Gas Light Company for damages totaling $450,000. Included within the complaint were damages to the residence; cost of preparing plans, drawings, and specifications for conversion of the residence to a restaurant; cost for removal of debris after the fire; cost of work performed prior to destruction of the mansion; lost profits; and other damages to be added by amendment.
Defendant Long included as his third defense: Brennan's was not the real party in interest; as his fourth defense: there had
Page 644
been an accord and satisfaction between Long and Brennan's; and as a fifth defense: that Long was an insured under the fire policies and to the extent that plaintiff's claims included claims of those insurers, it was barred by payment of benefits under those insurance policies. The court granted plaintiff's motion or partial summary judgment and struck defendant Long's third, fourth, and fifth defenses. Long brings this appeal. Held :1. Brennan's and Long executed a "Standard Form of Agreement Between Owner and Contractor" of The American Institute of Architects. The contract provisions relevant to this action provide: "11.3 Property Insurance. [148 Ga.App. 798] 11.3.1 Unless otherwise provided, the Owner (Brennan's) Shall purchase and maintain property Insurance upon the entire Work at the site to the full insurable value thereof. This insurance shall include the interest of the Owner, the Contractor, Subcontractors and Sub-subcontractors In the Work and shall insure Against the perils of Fire, Extended Coverage, Vandalism and Malicious Mischief." (Emphasis supplied.)
Paragraph "1.1.3 The Work. The term Work includes all labor necessary to produce the construction required by the Contract Documents, and all materials and equipment incorporated or to be incorporated in such construction."
Apparently, pursuant to its obligation under Paragraph 11.3.1 the owner, Brennan's, procured insurance through an insurance agent, Bailey, Engelhardt & Vega, Inc. The Binder shows that three insurance companies, "Commercial Union, American, and Continental Casualty," each would issue policies for $105,000 to "Brennan's of Atlanta, Inc. Owner & E. C. Long, Contractor" in the amount of "$315,00" (sic) "(o)n the one story masonry building occupied as Restaurant and situated 103 W. Paces Ferry Road, N. W. Atlanta." The insurance policies themselves were not introduced in evidence and we have no other description of the property or the insureds intended to be covered. However, when the insurance companies forwarded their drafts to Brennan's to cover the claim for the explosion and fire, the drafts from American and Commercial Union were made out jointly to Brennan's and Long, and the draft from Continental Casualty was made only to Brennan's. But Brennan's forwarded all three drafts to Long for its indorsement with a cover letter explaining the drafts were for "the loss which they sustained to the West Paces Ferry Road property." After the drafts were indorsed by Long and returned to Brennan's, all insurance companies then took a "loan receipt" from Brennan's which stated, essentially: "Received from the (insurance company) $43,333.33 as a loan without interest repayable only in the event and to the extent of any net recovery the undersigned (Brennan's of Atlanta) may make from any person . . . or other parties causing or liable for the loss or [148 Ga.App. 799] damage . . . and as security for such a payment, the undersigned (Brennan's) pledges to the said (Insurance) Company all his, its, or their claim or claims against said person, persons . . . any recovery thereon."
Defendant Long acknowledges that Georgia law recognizes a loan receipt instrument by an insurer to his insured permits an action against an alleged wrongdoer to be brought in the name of the insured. McCann v. Dixie Lake &c. Co., 44 Ga.App. 700(1), 162 S.E. 869; Green v. Johns, 86 Ga.App. 646(2), 72 S.E.2d 78. The wording of the loan receipts in the instant case is similar to those of the cited cases and would appear to be dispositive of this issue except this case has one fact not included within those cases. The present defendant is a named insured in the policy of insurance.
( a) The first enumerated error addresses the defendant's "Third Defense" which was: "The plaintiff, Brennan's of Atlanta, Inc., is not the real party in interest . . ." We will note in passing that this was not a motion " to require (plaintiff) to (add the insurer) as an additional party plaintiff because it was 'a party at interest.' " See Southeast Transport Corp. v. Hogan Livestock Co., 133 Ga.App. 825, 826, 212 S.E.2d 638.
Page 645
Professor Moore advises that "(c)ases construing the real party in interest provision can be more easily understood if it is borne in mind that the true...
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Empress Casino Joliet Corp. v. W.E. O'Neil Constr. Co., s. 1–15–1166
...v. Craig & Rush, Inc., 26 Cal.App.4th 1194, 32 Cal.Rptr.2d 144, 146 (1994), and citing E.C. Long, Inc. v. Brennan's of Atlanta, Inc., 148 Ga.App. 796, 252 S.E.2d 642 (1979), and Haemonetics Corp. v. Brophy & Phillips Co., 23 Mass.App.Ct. 254, 501 N.E.2d 524 (1986) ).¶ 88 The court in Interg......
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Frank Briscoe Co., Inc. v. Georgia Sprinkler Co., Inc., 82-8479
...to the rights of the insured against third persons to whom the insurer owes no duty. E.C. Long, Inc., v. Brennan's of Atlanta, Inc., 148 Ga.App. 796, 252 S.E.2d 642 (1979); Turner Construction Company, supra; Transamerica Insurance Company v. Gage Plumbing and Heating Company, 433 F.2d 1051......
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Ga. Farm Bureau Mut. Ins. Co. v. Franks, A12A2196.
...by another to finance the purchase price of a truck had an insurable interest in the truck.); E.C. Long, Inc. v. Brennan's of Atlanta, 148 Ga.App. 796, 800(1)(b), 252 S.E.2d 642 (1979) (A building contractor, who enters into a contract for construction, alteration, or repair of a building, ......
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S.S.D.W. Co. v. Brisk Waterproofing Co., Inc.
...Village of Rosemont v. Lentin Lbr. Co., 144 Ill.App.3d 651, 98 Ill.Dec. 470, 494 N.E.2d 592; E.C. Long, Inc. v. Brennan's of Atlanta, 148 Ga.App. 796, 252 S.E.2d 642; Housing Inv. Corp. v. Carris, 389 So.2d 689 [Fla.App.1980]; see also, Insurance Co. v. Wells, 35 Ohio App.2d 173, 300 N.E.2d......
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Empress Casino Joliet Corp. v. W.E. O'Neil Constr. Co., s. 1–15–1166
...v. Craig & Rush, Inc., 26 Cal.App.4th 1194, 32 Cal.Rptr.2d 144, 146 (1994), and citing E.C. Long, Inc. v. Brennan's of Atlanta, Inc., 148 Ga.App. 796, 252 S.E.2d 642 (1979), and Haemonetics Corp. v. Brophy & Phillips Co., 23 Mass.App.Ct. 254, 501 N.E.2d 524 (1986) ).¶ 88 The court in Interg......
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Frank Briscoe Co., Inc. v. Georgia Sprinkler Co., Inc., 82-8479
...to the rights of the insured against third persons to whom the insurer owes no duty. E.C. Long, Inc., v. Brennan's of Atlanta, Inc., 148 Ga.App. 796, 252 S.E.2d 642 (1979); Turner Construction Company, supra; Transamerica Insurance Company v. Gage Plumbing and Heating Company, 433 F.2d 1051......
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Ga. Farm Bureau Mut. Ins. Co. v. Franks, A12A2196.
...by another to finance the purchase price of a truck had an insurable interest in the truck.); E.C. Long, Inc. v. Brennan's of Atlanta, 148 Ga.App. 796, 800(1)(b), 252 S.E.2d 642 (1979) (A building contractor, who enters into a contract for construction, alteration, or repair of a building, ......
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S.S.D.W. Co. v. Brisk Waterproofing Co., Inc.
...Village of Rosemont v. Lentin Lbr. Co., 144 Ill.App.3d 651, 98 Ill.Dec. 470, 494 N.E.2d 592; E.C. Long, Inc. v. Brennan's of Atlanta, 148 Ga.App. 796, 252 S.E.2d 642; Housing Inv. Corp. v. Carris, 389 So.2d 689 [Fla.App.1980]; see also, Insurance Co. v. Wells, 35 Ohio App.2d 173, 300 N.E.2d......