General Acc. Fire & Life Assur. Corp. v. Azar, No. 38525

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: BELL; FELTON, C. J., and NICHOLS
• Citation: 119 S.E.2d 82,103 Ga.App. 215
• Parties: GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION et al. v. Nick AZAR et al
• Decision Date: 08 February 1961
• Docket Number: No. 1,No. 38525

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119 S.E.2d 82 103 Ga.App. 215 GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION et al.
v.
Nick AZAR et al. No. 38525. Court of Appeals of Georgia, Division No. 1. Feb. 8, 1961.
Rehearing Denied March 2, 1961.

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Syllabus by the Court

1. Evidence that children were throwing rocks on the roof of a building, followed by water leakage causing damage, is sufficient to support a jury's finding of loss under an insurance policy insuring against loss caused by vandalism and malicious mischief.

2. An erroneous instruction as to the measure of damages under an insurance policy is harmless where the liquidated damages proved, and uncontroverted, were the amount of the jury verdict.

[103 Ga.App. 216] 3. Where the insurer had reasonable grounds for defending the case, there is no bad faith so as to allow an award for statutory damages and attorney's fees.

4. Where the petition charges that the insurer was furnished with proof of loss in accordance with the requirements of the policy and also charges an absolute refusal to pay the loss, no question of duplicity being raised, the insured may recover on the theory that the absolute refusal is a waiver of the policy requirement as to notice and preliminary proof of loss, and the insured is not then limited in his recovery to the amount claimed under the proof of loss which he did file.

5. Where there are two insurance policies on the same property containing apportionment clauses that the respective companies shall not be liable for a greater portion of any loss than the amount insured under the policy bears to all other insurance on the property, an instruction by the court that the companies insured their respective percentages, correctly calculated, is not error.

The same plaintiffs brought actions against the General Accident Fire & Life Assurance Corp. and the Central Mutual Insurance Co. for losses allegedly sustained by acts of vandalism and malicious mischief. These cases were consolidated and tried together. The petitions include prayer for the total amount of the damage plus penalties and attorney's fees. The trial resulted in judgments against both insurers for the total amount of damages plus penalties and attorney's fees. The defendant insurers then filed joint motions for new trials on the general grounds, which were amended by adding the following special graounds:

Ground 4. That the court erred in failing to give the jury any measure of damage or any rules for determining the plaintiff's loss or damage which he is alleged to have sustained under the policies of each of the defendants.

Ground 5. That charging the jury as to loss occasioned by [103 Ga.App. 217] vandalism and malicious mischief was erroneous, prejudicial, and harmful, because the evidence, as a matter of law, did not warrant the submission of this issue to the jury, for there was no evidence from which the jury would be justified in finding that the damage was occasioned by vandalism and malicious mischief.

Ground 6. That the court erred in submitting the question of damages and attorney's fees to the jury, in view of the testimony of the defendant's witnesses which substantiated the defendant's contention that it had a reasonable ground for contesting the claims.

Ground 7. That the verdict against the Generla Accident Fire & Life Assurance Corp. in the amount of $1,737 was illegal and contrary to law because the plaintiff's proof of loss submitted to the company at first claimed $1,100 and then was amended to make the claim $1,223.33, and thus, in any event, the amount of the verdict in excess of the amount claimed in the proof of loss is illegal and contrary to law.

Ground 8. That the court erred in charging the jury, in substance, that the

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General Accident Fire & Life Assurance Corp.'s policy insured 71 percent of the loss and the Central Mutual Insurance Co.'s policy insured 29 percent of the loss, because the plaintiffs in their petition claim $718.83 from the Central Mutual Insurance Co. and $1,727.83 from the other company in both cases, plus penalties and attorney's fees, and, further, that the court did not inform the jury that it was at all times limited to the amounts claimed in the sworn proof of loss, and that the jury could not find an amount in excess of the amount claimed in the proof of loss.

The trial court overruled these motions, to which the defendants excepted.

Dudley Cook, Atlanta, for plaintiffs in error.

Moise, Post & Gardner, Albert G. Norman, Jr., Atlanta, for defendants in error.

BELL, Judge.

1. The first contention of the insurers, as raised by both the general grounds and special ground 5, is that the claimants' evidence utterly failed to establish that the damage was caused by malicious mischief and vandalism as defined in the insurance policy and by windstorm, all as alleged in the petitions. It appears that there is no serious contention that [103 Ga.App. 218] the damage was caused by windstorm, but rather that the damage was caused by malicious mischief and vandalism as defined in the policy. A search of the cases indicates that as applied to insurance policy coverage, the term, 'vandalism and malicious mischief,' has not been defined by the appellate courts in this state. In fact, there have been surprisingly few cases in the United States interpreting or defining this phrase.

The insurance policies sued upon contain identical definitions of the term as follows: 'Vandalism and malicious mischief: Applies only in consideration of additional premium shown on the first page of this policy and only when extended coverage is also made effective--1. In consideration of vandalism and malicious mischief premium shown on the first page of this policy and subject to: (a) the provisions of this policy of fire insurance; (b) the extended coverage provisions and; (c) those of the Vendalism and malicious mischief (hereinafter referred to as 'provisions'); the coverage under said extended coverage is hereby extended to include direct loss to the described property from vandalism and malicious mischief. 2. The term 'Vandalism and malicious mischief' as used herein is restricted to and includes only wilful or malicious physical injury to or destruction of the described property. 3. When this policy covers direct loss to the described property, this company shall not be liable under these provisions for any loss (a) to glass (other than glass building blocks) constituting a part of the building; (b) by pilferage, theft, burglary or alrceny, except loss by wilful or malicious physical injury to or destruction of a building described and covered hereunder; (c) by explosion, rupture or bursting of (1) steam boilers, steam pipes, steam turbines, steam engines; or (2) rotating parts of machinery caused by centrifugal force; if owned by, leased by or actually operated under the control of the insured; (d) from depreciation, delay, deterioration or loss of market; nor unless specifically endorsed hereon in writing for any loss resulting from change in temperature or humidity.'

The historical definition of vandalism was...