England v. Georgia-Florida Co.

• Decision Date: 25 February 1991
• Docket Number: No. A90A2014,GEORGIA-FLORIDA,A90A2014
• Citation: 198 Ga.App. 704,402 S.E.2d 783
• Parties: ENGLAND et al. v.COMPANY.
• Court: Georgia Court of Appeals

Page 783

402 S.E.2d 783

198 Ga.App. 704

ENGLAND et al. v. GEORGIA-FLORIDA COMPANY.

No. A90A2014.

Court of Appeals of Georgia.

Feb. 25, 1991.

Dennis, Corry, Porter & Thornton, Michael T. Thornton, Andrew H. Schultz, for appellants.

Thomas J. Ousley, for appellee.

CARLEY, Judge.

The relevant facts in this appeal are as follows: Upon being informed that its insurance policy would not be renewed upon expiration, appellee-plaintiff engaged appellant-defendants to secure a replacement policy which provided the "same coverage." After a replacement policy had been obtained, appellee suffered two losses which apparently would have been covered under the expired policy, but which were not covered under the replacement policy. Appellee brought suit, seeking to recover in contract and in tort for appellants' failure to have secured a replacement policy which provided the "same coverage." After a mistrial was declared in the original trial of the case, it was retried before a jury and a verdict was returned in favor of appellee. Appellants appeal from the judgment that was entered by the trial court on the jury's verdict.

1. Appellants moved for a directed verdict as to appellee's recovery under a negligence theory. The trial court's denial of that motion is enumerated as error.

Under the evidence, appellants had no discretion as to the types or amounts of coverage that they were to attempt to secure for appellee. Appellants were obligated only to attempt to secure a replacement policy which provided the "same coverage" as that which had been provided under the expired policy. Therefore, any reliance upon Wright Body Works v. Columbus Interstate Ins. Agency, 233 Ga. 268, 210 S.E.2d 801 (1974) as a basis for appellee's recovery under a negligence theory is misplaced. The alleged negligence is not based upon an exercise of expert discretion, but upon a failure to obtain specified coverage. Therefore, the instant case is not otherwise within the Wright Body Works exception to the general rule that one who had sought, but did not receive, specified coverage has no viable negligence claim if, prior to suffering the uninsured loss, he had the alleged non-conforming policy in his possession. See generally Greene v. Lilburn Ins. Agency, 191 Ga.App. 829, 383 S.E.2d 194 (1989). A plaintiff who has "the policy in [his] possession prior to the [uninsured loss is] charged with the knowledge of the terms and conditions of the policy, namely and in particular that the policy coverage was ... not ... as contracted for between the parties. [Cit.] Consequently the plaintiff being, under the law, charged with knowing the terms and conditions of the policy, any negligence, if any, on the part of the defendant in failing to procure the amount [or type] of insurance coverage contracted for could have been avoided by the plaintiff and therefore a finding for the defendant is demanded." S & A Corp. v. Berger & Co., 111 Ga.App. 39, 40-41(1), 140 S.E.2d 509 (1965).

Since the instant case is not within the exception to the general rule, it follows that the correctness of the trial court's ruling on appellants' motion for a directed verdict is ultimately dependent upon whether appellee had the replacement policy in its possession prior to suffering the uninsured loss. If appellee did have the replacement policy in its possession, then its own negligence in failing to have read it so as to discover that it did not provide the "same coverage" as the expired policy is a bar to a recovery in negligence against appellants. If appellee did not have the replacement policy in its possession, then the failure to have read it and discovered the lack of the "same coverage" would not preclude a recovery in negligence against appellants.

The record demonstrates that appellee did not have the replacement policy in its possession prior to the occurrence of one of the uninsured losses. Accordingly, the trial court did not err in denying appellants' motion for a directed verdict as to appellee's recovery in negligence for that loss. However, the record also demonstrates that appellee did have the policy in its possession prior to the occurrence of the other uninsured loss. Accordingly, the trial court did err in denying appellants' motion for a directed verdict as to appellee's recovery in negligence for that loss.

We cannot say that this error was harmless. Although appellee had a viable contract claim as to both uninsured losses, it had a viable tort claim as to only one of those uninsured losses. The general verdict that was returned may well have been based upon the erroneous legal theory that appellant was liable in tort for both losses. Accordingly, the judgment must be reversed and a new trial held wherein the issue of appellants' tort liability is properly limited. OCGA § 9-11-50(e).

2. Appellants moved for a directed verdict based upon appellee's failure to prove compensatory damages. The denial of that motion is also enumerated as error.

Because the judgment must be reversed for the reasons discussed in Division 1, we need not determine whether this enumeration of error is also viable. However we would point out that, in a case such as this, appellants could be found liable "for any resulting loss. [Cit.]" Wright Body Works v. Columbus Interstate Ins. Agency, supra 233 Ga. at 270, 210 S.E.2d 801. This means that appellee could recover for the resulting uninsured "loss or damage to the limit of the agreed policy. [Cits.]" Beiter v. Decatur Fed. S & L Assn., 222 Ga. 516, 518(2), 150 S.E.2d 687 (1966). Thus, appellee's recovery of compensatory damages for their uninsured losses is necessarily dependent upon proof of the amount and type of insurance coverage that would otherwise...