Greene v. Commercial Union Ins. Co.

• Court: Georgia Court of Appeals
• Writing for the Court: DEEN
• Citation: Greene v. Commercial Union Ins. Co., 136 Ga.App. 346, 221 S.E.2d 479 (Ga. App. 1975)
• Decision Date: 24 October 1975
• Docket Number: No. 3,No. 51177,51177,3
• Parties: Ruby Jo GREENE v. COMMERCIAL UNION INSURANCE COMPANY

Page 479

221 S.E.2d 479

136 Ga.App. 346

Ruby Jo GREENE v. COMMERCIAL UNION INSURANCE COMPANY.

No. 51177.

Court of Appeals of Georgia, Division No. 3.

Oct. 24, 1975.

Syllabus by the Court

1. As against a motion for summary judgment by the defendant insurer, testimony of the plaintiff that on buying a new car she informed the agent who had handled her insurance for several years that she wanted it insured as she was going out of town, and the agent replied that it would be insured and the policy written after her return, which testimony was contradicted by the agent, creates a jury issue as to whether an oral binder was issued.

2. The plaintiff's automobile having been placed in a garage for repairs, a second automobile purchased two weeks later and wrecked four days thereafter is not an automobile which 'replaces an owned automobile' under an insurance clause covering a replacement vehicle, where the original vehicle was retained and after repair was returned to the service of the owner.

An insurance broker for the defendant company had placed insurance and written policies for Mrs. Greene and her deceased husband for a number of years. A policy written for Mr. Greene with Commercial Union was changed to Mrs. Greene in April, 1973. Later the same month this car was traded, and a policy on the new Chevrolet issue by Commercial Union. At about the same time Mrs. Greene purchased a Dodge for the use of her minor son, which the broker placed with Georgia Mutual Insurance Co. because the defendant did not wish to accept the risk at the regular premium. The Chevrolet was incapacitated on June 12 and placed in a garage where it stayed for repairs until October. On June 26 Mrs. Greene bought a second Dodge for her own use which was totally destroyed in a collision four days later. Contending that this last car was in fact insured by the defendant, either as a replacement vehicle or by reason of a temporary oral binder, she brought an action against the insurance company. The defendant's motion for summary judgment was granted, and plaintiff appeals.

Spence & Knighton, Judson R. Knighton, Marietta, for appellant.

Long, Weinberg, Ansley & Wheeler, J. Kenneth Moorman, Edward C. Stone, Atlanta, for appellee.

DEEN, Presiding Judge.

4. 'Binders or other contracts for temporary insurance may be made orally or in writing, and shall be deemed to include all the usual terms of the policy as to which the binder was given,' and are valid for 90 days. Code, § 56-2420. It must be a contract in praesenti (Fort Valley Coca-Cola Co. v. Lumbermen's Mut. Cas. Co., 69 Ga.App. 120, 24 S.E.2d 846 and the actual payment of premium is not a condition precedent to its validity. Pa. Cas. Co. v. Upchurch, 5 Cir., 139 F.2d 892. The language or conduct necessary to create the contract is simply that which is enough to show that there has been a meeting of the minds. 'The most common expression used by agents is, 'You're covered,' but anything from the contraction 'O.K.' to a receipt for premiums may constitute a binder if the circumstances would lead a reasonable man to conclude such was the intention.' 12 A.L.R.3d, pp. 1304, 1314, Temporary Automobile Insurance § 5(b), and see cases cited. From these it is clear that even such terms as amount of premium and kind and limits of insurance may be inferred from the course of dealing between the parties, and where a broker is accustomed to 'insuring' the owner's automobiles it may be presumed that a request for insurance means insurance of the kind and amount habitually purchased.

While on the trial of a case the burden is on the plaintiff to prove every essential element of the binder contract, on motion for summary judgment the inferences run the other way. The testimony of the plaintiff, which was strongly contradicted by the broker's agent, was that the plaintiff (who had dealt with the agent in procuring insurance for three other automobiles in the prior six-month period), called and placed the insurance on the new car. Her testimony is as follows: 'Q. What did she tell you? A. She told me that-I told her I wanted to get insurance on it because I was going to my mother's and daddy's, because my daddy was sick, and she said we will wait until you get back and I will have it all fixed up. She said, you will have insurance. . . . Q. Am I correct that you did not give any notice to Commercial Union Insurance Co. or to J. F. Shaw's Agency or to anybody else that you had bought that '73 Dodge Charger insofar as insurance...