Georgia Farm Bureau Mut. Ins. Co. v. Alloway

• Decision Date: 10 April 1975
• Docket Number: No. 50075,Nos. 1,3,2,50075,s. 1
• Citation: 134 Ga.App. 660,215 S.E.2d 506
• Parties: GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. E. B. ALLOWAY
• Court: Georgia Court of Appeals

Page 506

215 S.E.2d 506

134 Ga.App. 660

GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. E. B. ALLOWAY.

No. 50075.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

April 10, 1975.

Rehearing Denied April 29, 1975.

Fletcher & Watson, Dennis D. Watson, LaFayette, for appellant.

Hatcher & Daniel, Ross L. Hatcher, III, Rossville, for appellee.

Syllabus Opinion by the Court

MARSHALL, Judge.

Defendant insurer appeals from a judgment entered against it in favor of its insured plaintiff, plus penalty and attorney fees, based on the following stipulated facts: Defendant issued a farmowners insurance policy, 'Broad Form,' to plaintiff. During the term of the policy, a horse owned by the plaintiff suffered a mangled leg, and had to be put to death. The cause of the mangled leg was unknown. Plaintiff filed a proof of loss with defendant wherein he stated that the horse died as a result of a mangled leg of an unknown cause.

The insurance policy provided coverage 'against all direct loss by fire, lightning, and other perils insured against in this policy . . .' The general coverage provisions of the policy that applied to all property under Section I (dwelling, appurtenant structures, etc., including livestock) insured against direct loss by these named perils: (1) fire and lightning, (2) removal, (3) windstorm and hail, (4) explosion, (5) riot and riot attending a strike and civil commotion, (6) aircraft, (7) vehicles, (8) damage from smoke, (9) vandalism and malicious mischief, (10) theft, and (11) overturn of a vehicle.

In addition to the perils named that applied to all property in Section I, there was specified coverage of 'Farm Personal Property' under Coverage E, which insured 'all farm personal property . . . except as hereinafter provided.' One of the items listed thereunder was 'Livestock,' the definition of which included horses. Under Coverage E, the policy was 'extended to cover certain direct losses by theft' and was extended 'to include direct loss resulting from' electrocution, death by wild animals, accidental shooting, and drowning.

There were listed several exclusions under Coverage E, one of which was that the insurer would not be liable 'for loss to livestock or poultry caused in whole or in part by running into ditches or against fences or other objects, nor for loss as the direct or indirect result of fright, howsoever caused.'

Defendant insurer denied coverage on the basis that the insured plaintiff had not shown that the loss was covered by any of the perils named in the policy. The plaintiff contends that the clause, 'This policy covers all farm personal property . . . except as hereinafter provided,' means that all property was covered except that on which coverage is limited therein, and that the only limits set forth in the policy were those concerning theft of animals, death caused by wild animals and accidental shooting or drowning. Plaintiff contends that he has thus established a prima facie case of coverage and the burden was then shifted to the defendant to prove the loss came under the exclusion. Held:

1. 'In an action to collect on an insurance policy, the insured must show that the occurrence was within the type of risk insured against to make a prima facie case.' Mathis v. Hanover Ins. Co., 127 Ga.App. 89, 92, 192 S.E.2d 510, 512; Reserve Life Ins. Co. v. Davis, 224 Ga. 665(2), 164 S.E.2d 132; United States Fire Ins. Co. v. Tuck, 115 Ga.App. 562, 155 S.E.2d 431. The policy in question here is not an 'all risks' policy even though denominated as a 'broad form' policy. See 16 E.G.L., Insurance, § 217 (1969) as to the meaning of a 'broad form' policy. It insures only against loss from certain 'named perils.' That 'all farm personal property' is covered does not mean that all farm property is covered against all hazards. We have stated that 'an insurer has the right to define its assumed risks as narrowly as it wishes to provide itself with a more reasonable basis of calculation of the probability of the risks . . .' Sun Ins. Office v. First Nat. Bank & Trust Co., 113 Ga.App. 782, 784-85, 149 S.E.2d 753, 755. See e.g. Still v. Great Central Ins. Co., 122 Ga.App. 99, 176 S.E.2d 268. In the farmowners policy sub judice the insurer has narrowed the scope of its liability by specifically delineating those risks which were covered. Nowhere does the policy state that it insures against loss from all causes except those excluded.

Neither in his proof of loss nor at the trial did plaintiff offer to prove that the horse died as the result of a mangled leg caused by any one of the named perils. Indeed, it is difficult to conceive of how any one of the named perils could have caused the horse's leg to become mangled. Plaintiff has been afforded the opportunity to prove same, but has failed to do so and submitted the case to trial on stipulated facts. Where the 'plaintiff sues upon an insurance policy to recover compensation for a loss he has admittedly sustained, the primary inquiry is whether the loss resulted from a hazard against which the policy afforded protection'; and 'the burden of proof was upon the plaintiff to prove by a preponderance of the evidence . . .' that the loss resulted from a hazard against which the policy afforded protection. United States Fire Ins. Co. v. Tuck, 115 Ga.App. 562, 569-570, 155 S.E.2d 431, supra. Plaintiff did not establish a prima facie case and the trial court decision must be reversed.

2. In view of the above decision to reverse, there can be no award of a 'bad faith' penalty nor attorney fees for plaintiff.

Judgment reversed and remanded with direction to enter a judgment in favor of the defendant.

BELL, C.J., PANNELL P.J., DEEN P.J., and CLARK and WEBB, JJ., concur.

QUILLIAN and EVANS, JJ., dissent.

STOLZ, J., not participating.

EVANS, Judge (dissenting).

E. B. Alloway purchased a home owners hazard insurance policy from Georgia Farm Bureau Mutual Insurance Company. This policy insured his home and farm in Catoosa County, Georgia, with multiple coverages. An added premium had been paid as to livestock (including horses), increasing the coverage from $200.00 per head to $600.00 per head. The policy contained an exclusion as to livestock, among others, providing that the insurer was not liable for loss: '. . . caused in whole or in part by running into ditches or against fences or other objects, nor for loss as the direct or indirect result of fright, howsoever caused.'

One of Alloway's horses received a mangled leg, and because of this injury, it was killed. The death of the horse was the direct and proximate result of the injury to the leg, although it was unknown as to how the leg was mangled.

Alloway filed proof of loss and written demand for payment, and the insurance company refused to pay. Suit was filed seeking $500.00, plus penalty for bad faith and attorney fees.

The parties stipulated the facts substantially as set forth above, waived a jury trial, and agreed for the court to try the case without a jury. The court tried the case and held that the loss was covered by the insurance policy, and awarded $500.00 to plaintiff for loss of his horse, plus $125.00 as penalty, and $525.00 as attorney fees. Defendant appeals. The majority of this court reverse with direction that judgment be entered for defendant. I dissent.

1. At the top of the page which sets forth the insuring provisions of the policy, we find in large capital letters the following: 'FARMOWNERS POLICY-BROAD FORM PROVISIONS APPLICABLE TO SECTION 1 DESCRIPTION OF PROPERTY AND INTERESTS COVERED.' And on the same page: 'The policy covers all farm personal property, usual to the operation of a farm, belonging to the Insured or for which the Insured may be liable . . . (a) Livestock: Definition-Livestock is defined as cattle, horses, mules, swine and sheep. Dogs, cats and fur bearing animals are not covered.' And still on the same page: 'Exclusions: The Company shall not be liable under Coverage E: (1) for loss to livestock or poultry caused in whole or in part by running into ditches or against fences or other objects, nor for loss as the direct or indirect result of fright however caused.' (Emphasis supplied.) The policy was written on fourteen (14) pages, most of which were in fine print.

Plaintiff Alloway contends the loss of his horse was covered under the insurance policy; defendant Georgia Farm Bureau contends the loss of the horse was not covered. The solution of the issue, needless to say, is somewhat more difficult than stating the issue. The language we have quoted from the policy, in stating the case, would indicate the horse was insured, subject to the exclusion which provided that coverage should not apply if the horse was injured by running into a ditch, or against a fence or other object or as a result of fright. This language would further make it appeal that at the trial of the case, when plaintiff introduced the policy of insurance into evidence, and proved the loss of his horse while the policy was in effect, and the value thereof, the burden would then shift to the defendant to prove the loss was within an exclusion in the policy. The law is quite plain to the effect that an insurance company, relying on an...