Cotton States Mut. Ins. Co. v. Smelcer
Decision Date | 22 February 1994 |
Docket Number | No. A93A1967,A93A1967 |
Citation | 441 S.E.2d 788,212 Ga.App. 376 |
Parties | , 47 A.L.R.5th 939 COTTON STATES MUTUAL INSURANCE COMPANY v. SMELCER. |
Court | Georgia Court of Appeals |
Parkerson, Shelfer & Connell, William S. Shelfer, Jr., for appellant.
Cathey & Strain, Edward E. Strain III, M. Steven Campbell, McDonald & Cody, Douglas W. McDonald, Sr., P. Gerald Cody, Jr., and Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, for appellee.
The issue is whether land which contains a permanently affixed but abandoned structure is "vacant land" for the purposes of coverage under a homeowner's liability policy.
Smelcer owned a home that was insured under a homeowner's policy issued by Cotton States Mutual Insurance Company. He and other family members owned a separate parcel of land approximately two-and-one-fourth to three miles from his home on which was located his maternal family's abandoned old house and an abandoned old country store. During the term of the homeowner's policy, vandals set fire to the abandoned house and a fireman was killed while responding. The deceased fireman's father sued Smelcer and the other property owners to recover damages for the wrongful death of his son. Smelcer claimed coverage under his homeowner's policy, and Cotton States brought this declaratory judgment action to determine whether coverage existed.
The policy provides liability coverage for incidents arising out of premises owned by the insured which come within the definition of "insured location," to wit (in pertinent part), "vacant land, other than farm land, owned by or rented to an insured...." The term "vacant land" is not defined in the policy.
Cotton States moved for summary judgment, contending that because the separate parcel of land contained a house, it clearly was not "vacant land." In opposition, Smelcer by affidavit averred that he understood "vacant land" to mean "unoccupied or unused land." The trial court denied the insurer's motion, concluding that the term "vacant land" was ambiguous and created an issue of fact as to what a reasonable person in the position of the insured would understand it to mean. Interlocutory review was granted.
The applicable principles are settled. " ' ' ...
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