Fireman's Fund Indem. Co. v. Mosaic Tile Co., 38133

• Decision Date: 09 May 1960
• Docket Number: No. 38133,No. 1,38133,1
• Citation: 115 S.E.2d 263,101 Ga.App. 701
• Parties: FIREMAN'S FUND INDEMNITY COMPANY v. MOSAIC TILE COMPANY et al
• Court: Georgia Court of Appeals

Page 263

115 S.E.2d 263

101 Ga.App. 701

FIREMAN'S FUND INDEMNITY COMPANY v. MOSAIC TILE COMPANY et al.

No. 38133.

Court of Appeals of Georgia, Division No. 1.

May 9, 1960.

Rehearing Denied May 23, 1960.

Syllabus by the Court

A contract of insurance clearly defining the meaning of 'insured' leaving no ambiguity or deceptive verbiage, is not open to construction, and the literal meaning must be attributed to it.

On November 29, 1955, Aaron Martin sustained injuries as a result of an accident which arose out of and in the course of his employment by the Gate City Tile Company. At the time of his injuries, the employees of the plaintiff in this action for a declaratory judgment, the Mosaic Tile Company, were loading tile on the truck of Gate City Tile Company, and this truck was insured by Fireman's Fund Indemnity Company under Policy No. SF 4213220 issued to Gate City Tile Company. This policy was in full force and effect at the time of the injury.

The injured Aaron Martin subsequently was paid workmen's compensation in the amount of $3,352.50 in addition to certain legal expenses pursuant to the workmen's compensation laws of the State of Georgia. He also filed his action for damages based on these injuries against the Mosaic Tile Company in the Superior Court of Fulton County, and the Mosaic Tile Company, as an additional insured, called upon the Fireman's Fund Indemnity Company to take over the defense of the action and to assume responsibility for handling the case within the terms and conditions of the policy of insurance which it issued to Gate City Tile Company. The insurance company declined and refused to take over the defense of the action. The Mosaic Tile Company thereupon brought this its action for a declaratory judgment naming as defendants the Fireman's Fund Indemnity Company and the injured employee of Gate City Tile Company, Aaron Martin.

It was stipulated and agreed between the parties that the truck was being used by the Mosaic Tile Company with the permission of the Gate City Tile Company at the time of the injury, and that Mosaic was therefore an additional insured under the policy and within its bodily injury liability coverage unless negatived by the terms of the exclusionary provisions of the insurance contract. The only question for decision, then, is whether the Mosaic Tile Company is entitled to the benefit of the policy in view of certain exclusionary clauses in the policy. All questions of law and fact were submitted to the judge, and a jury trial was expressly waived. The trial court adjudged that the Mosaic Tile Company was entitled to the protection of the policy, and thereafter the Fireman's Fund Indemnity Company filed its motion to vacate and set aside the judgment. The court refused and declined to do so. The Fireman's Fund Indemnity Company excepted, and the propriety of the judgment is presented to this court.

T. J. Long, Ben Weinberg, Jr., Atlanta, for plaintiff in error.

Greene, Neely, Buckley & DeRieux, Ferrin Y. Mathews, Atlanta, for defendant in error.

BELL, Judge.

This is an action for a declaratory judgment to determine the question as to whether an insurance company (Fireman's Fund Indemnity Company) is bound to defend a suit seeking damages for personal injuries and pay any of the damages awarded therein where the carrier had issued an automobile bodily injury liability policy to a company (Gate City Tile Company) whose employee (Aaron Martin) was injured and received benefits under a workmen's compensation insurance policy, where the employee sued in tort another company (Mosaic Tile Company) which had become an additional insured under the terms of the insurance policy. Pursuant to the agreement and stipulation of the parties, the issues are narrowed to one point. The only matter for decision is the meaning of the word 'insured,' as contained in §§ (d) and (e) of the 'Exclusions' provisions of the policy issued by the Fireman's Fund Indemnity Company to the Gate City Tile Company. It it stipulated by the parties that the plaintiff in this declaratory judgment action, the Mosaic Tile Company, was an additional insured within the terms of the policy, but the contention is that the insurance was not extended to this particular injury because of the exclusionary sections.

The insurance contract in regard to matters here relevant seems clear and unambiguous so as to be clearly observable by the parties. Further, the insurance policy carefully defines its terms and contains the following: 'III. Definition of Insured: (a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified work 'insured' includes the named insured and, if the named insured is an individual, his spouse if a resident of the same...