Epps v. Nicholson

• Court: Georgia Court of Appeals
• Writing for the Court: SOGNIER; DEEN, P.J., and CARLEY
• Citation: Epps v. Nicholson, 370 S.E.2d 13, 187 Ga.App. 246 (Ga. App. 1988)
• Decision Date: 25 May 1988
• Docket Number: 76355,Nos. 76354,s. 76354
• Parties: EPPS et al. v. NICHOLSON. NICHOLSON v. RUCKER & ASSOCIATES, INC. et al.

Page 13

370 S.E.2d 13

187 Ga.App. 246

EPPS et al. v. NICHOLSON.

NICHOLSON v. RUCKER & ASSOCIATES, INC. et al.

Nos. 76354, 76355.

Court of Appeals of Georgia.

May 25, 1988.

Donald B. Howe, Jr., Tallapoosa, for Nicholson.

William C. Tinsley II, Joel E. Dodson, Douglasville, for Epps.

J. Thomas Vance, Thomas E. Greer, Carrollton, for Dependable and rucker.

SOGNIER, Judge.

Nora L. Nicholson brought suit against her insurance agent, Jack Epps, his agency, Epps Insurance Agency, Inc., Rucker & Associates, Inc., the general agent, and Dependable Insurance Company, Inc., the insurance carrier, to recover damages from a fire loss on rental property she owned. The trial court granted summary judgment to Rucker & Associates, Inc., and Dependable Insurance Company, Inc., and granted partial summary judgment as to coverage to Epps and Epps Insurance Agency, Inc., while denying summary judgment in their favor as to negligence. Nicholson appeals from the grant of summary judgment, and Epps and his agency appeal from the denial of summary judgment in their favor as to negligence.

The record reveals that Nicholson lived at 1543 North Flatrock Road, Douglasville, and owned a rental house at 1471 North Flatrock Road. She had purchased insurance on both her residence and the rental house for several years from Epps, who had visited her home and knew the tenant in the rental house. Nicholson requested that Epps obtain a policy covering the rental premises, and at Epps' request, a policy purporting to cover 1471 North Flatrock Road was issued by Dependable Insurance Company in June 1984. The rental home was substantially destroyed by fire in March 1985, during the term of the policy. Nicholson filed her claim with Dependable, which denied liability, asserting that the policy was a homeowners' policy, providing coverage only for owner occupied dwellings. It is uncontroverted that Nicholson received a copy of the policy prior to the fire loss, and that the policy defines "residence premises" as "the one or two family dwelling, other structures, and grounds or that part of any other building where you reside and which is shown as the 'residence premises' in the Declarations." The Declarations portion of the policy states that "[t]his policy insures Nora L. Nicholson, 1471 N. Flatrock Road, Douglasville, Ga. 30135."

1. In case number 76355, Nicholson contends the trial court erred by granting summary judgment in favor of the defendants as to coverage because the insurance policy was ambiguous, and thus must be construed most strongly against the insurer, and in favor of coverage, citing Davis v. United American Life Ins. Co., 215 Ga. 521, 111 S.E.2d 488 (1959) and Hutsell v. U.S. Life Title Ins. Co., 157 Ga.App. 845, 278 S.E.2d 730 (1981). Nicholson argues that the statement in the Declarations portion of the policy that the policy covers "Nora L. Nicholson, 1471 N. Flatrock Road" conflicts with the later language in the policy requiring residence in the premises by the insured. While it is true that where there is a conflict between two provisions in a policy, " '(t)he insurer is presumed to have intended that the clause most favorable to the insured be effective else it would not have inserted it in the policy it issued, and the insured is presumed to have chosen and intended to accept that which is most favorable to him,' " Hutsell, supra at 847(1), 278 S.E.2d 730, we do not find the provisions here to be conflicting, or the policy language ambiguous. Rather, we find that all provisions in the policy may be harmonized without difficulty. The Declarations portion of the policy merely reflects the information the carrier was given, and identifies the insured and the residence premises. Later provisions in the policy contain the exact terms of coverage. We agree with the trial court that it is clear the later clauses in the policy contain two requirements for coverage: first, the dwelling must be the place where the insured resides; and second, the dwelling must be shown as the "residence premises" in the Declarations. Although under the terms of the policy the rental house at issue here meets the second requirement, it clearly does not meet the first. There being no conflict or ambiguity in the policy, we do not find the cases cited by Nicholson applicable, and the trial court did not err by granting summary judgment in favor of the defendants as to coverage. See generally Simmons v. Select Ins. Co., 183 Ga.App. 128, 130, 358 S.E.2d 288 (1987).

2. In case number 76354, Epps and his agency maintain that while the trial court correctly granted summary judgment in their favor on Nicholson's claim as to coverage, the trial court erred by denying their motion for summary judgment as to Nicholson's negligence claim, because the case, rather than sounding in tort as alleged by Nicholson, sounds...