Home Indem. Co. v. Godley, 45090
| Citation | 122 Ga.App. 356,177 S.E.2d 105 |
| Decision Date | 13 July 1970 |
| Docket Number | 3,Nos. 1,2,No. 45090,45090,s. 1 |
| Parties | HOME INDEMNITY COMPANY v. Joseph J. GODLEY et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where the attorney for the insurer enters an appearance for the insured but thereafter, on the basis of investigation of the facts and the policy provisions, withdraws from the case and the suits are thereafter voluntarily dismissed by the plaintiffs, his action in withdrawing from the defense does not prejudice the rights of the plaintiff or estop the insurer to thereafter deny coverage.
2. Where there is evidence to show the reason for the use of petitioner's mother's automobile was as a temporary substitute for his own, which was withdrawn from normal use because of breakdown, the jury was authorized to find there was coverage under the policy, requiring the insurer to assume and conduct the defense of the damage suits against the petitioner.
3. If there be any reasonable ground for the insurer to contest a claim, there can be no bad faith, and it is error to award a penalty for failure to defend.
4. Whether there be primary coverage under another policy, the insurer's obligation to defend the insured remains the same under the contract of insurance between them.
5. The provisions of a policy for coverage of a substitute vehicle are to be construed liberally in favor of the insured if any construction of the policy is necessary. However, if no ambiguity exists, the contract of insurance must be interpreted as written.
6. Appellant's brief should comply with Rule 17 of this court. Code Ann. § 24-3617.
(a) Specific reference to the record or transcript, or both, is essential to a consideration of the alleged errors.
(b) A failure to follow the rules will result in a refusal to pass on the alleged error.
7. Testimony of a conversation between an agent of the insurer and the insured in regard to defense, settlement, or protection of the insured cannot be said to be hearsay, irrelevant, immaterial or self-serving in this suit for damages between the plaintiff as insured and the insurer as defendant arising out of the contract of insurance.
8. The above likewise applies to correspondence, pleadings and decrees resulting from the defense, failure to defend and damage to the insured.
9, 10. The charge cannot be said to be 'replete and repetitive' so as to be argumentative and more favorable to the contentions of the plaintiff rather than the defendant. Further, the written requests to charge which were argumentative and more favorable to the defendant were properly refused by the court.
11. A denial of summary judgment is not subject to review as an ancillary ruling in reviewing a final judgment.
This appeal is by the defendant insurance company in the court below from the order overruling its motion for judgment notwithstanding the verdict and motion for new trial as amended, after jury verdict against it for $85,850.08 plus 25% penalty, and the judgment which followed the verdict, ordering the payment of said funds in 'complete satisfaction of judgments' rendered against the plaintiff-insured in a Florida court. The petitioner brought the action against his insurer, the appellant herein, based upon its disclaimer and refusal to defend him under a liability policy by and between the insurer and the insured in certain suits against him in the State of Florida, and also seeking a restraining order and injunction against the parties holding the Florida judgment against him from levying on his property to satisfy their judgments. The petition alleged bad faith and negligence in failing to defend and sought a 25% penalty and attorney fees in a reasonable amount by reason of said bad faith. The attorney fees were later abandoned.
As shown by the evidence it appears that the petitioner was the owner of two motor vehicles (automobile and pick-up truck) with liability coverage with the insurer on each. The petitioner resided in the home of his widowed mother who also owned an automobile insured by another company. On a named date his mother borrowed his automobile to drive to an adjoining town because it was newer, 'in better shape,' with 'better tires,' leaving her motor vehicle in the care of her son. The son usually drove the pick-up truck to work but on the day of the collision out of which the judgments against him arose, he was driving his mother's car. There is some evidence that he merely drove his mother's car in place of his own car which she had driven to the adjoining town, but, in addition thereto, there is other evidence that his usual practice was to drive the pick-up truck to and from home to work at his regular job and to assist his mother at her service station, and that on this occasion he started to drive the pick-up truck but noticed a tire going flat, and since he had on his best clothes, he did not desire to change it at the moment. He elected to wait until the next morning and to drive his mother's car. He was therefore driving his mother's car at the time the collision occurred, resulting in the judgments arising out of damage suits against him, which is the subject matter of this litigation.
The pertinent portions of the policy of insurance between the plaintiff and the defendant insurer is that the insurer 'Agrees with the insured, * * * To pay on behalf of insured all sums which the insured shall become legally obligated to pay as damages because of: A. bodily injury * * * sustained by any person * * * B. injury to or destruction of property * * * arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy. * * *'
The policy shows the following persons are insured under this portion of the policy: '(a) with respect to the owned automobile, (1) the named insured and any resident of the same household * * * (b) with respect to a non-owned automobile, (1) the named insured * * *.' It is also important to here look at the following definitions in the policy: "owned automobile' means * * * (d) A temporary substitute automobile: 'temporary substitute automobile' means any automobile or trailer, not owned by the named insured, while temporarily used with the permission of the owner as a substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction 'non-owned automobile' means an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile * * *'. (Emphasis supplied.)
The questions for determination here, as in the court below, are: Was there coverage by the insurer under the policy? If there was coverage, was the insurer's refusal to defend and participate in attempting to settle the claims without any reasonable basis, so as to amount to bad faith? The insurer's contentions are that coverage under its policy was denied because (1) the petitioner was living with his mother, as a member of her household, and (2) he was driving her car at the time of the casualty, which car was covered by liability insurance. The insurer contends that under the evidence there was no way the jury could have found the petitioner was operating a nonowned automobile at the time of the collision, since he was clearly operating the car of his mother with whom he lived at the time of the accident, and the vehicle being driven by him did not fit the definition of 'an owned automobile' under the policy.
Error is enumerated as to (1) the denial of the insurer's motion for directed verdict, motion for judgment notwithstanding the verdict, and the general grounds of the motion for new trial, since the evidence introduced, with all reasonable deductions and inferences therefrom, demanded a verdict in its favor; (2) the failure to require the production of certain evidence; (3) the rejection and disallowance of the filing of a third party complaint, a cross claim against the codefendants, and a counterclaim against the plaintiff; (4) certain objections to evidence, both exhibits and testimony; (5) the failure to charge the jury as to the legal construction of the insurance policy, including the defined words, 'Owned automobiles,' 'non-owned automobile,' 'temporary substitute automobile,' and various other portions of the policy, and upon the facts and circumstances under which the defendant would be entitled to a verdict; (6) the failure to charge the jury with any statement whatever in respect to the contentions of the defendant, and particularly as to its legal right to disclaim or deny coverage; (7) the failure to charge the difference between a primary policy of insurance and an excess policy of insurance; (8) the failure to give in charge the effect of the portions of the oral and written evidence which relate to the dismissal of suits in Georgia prior to the damage suits sued to judgment in Florida as the same would apply to the doctrines of waiver, estoppel and claims for damages for bad faith and penalties; (9) the submission to the jury of the issues of waiver and estoppel as applied to the defendant, giving only the petitioner's contentions and not the defendant's, and the issues of bad faith and penalties; and having submitted such issues it erred in instructing the jury that the evidence in favor of the plaintiff did not support the finding that there was not a reasonable ground for denial of coverage or what would constitute good faith on the part of an excess insurance carrier; and under the evidence the insurer had a good legal and factual defense; (10) the failure to charge the jury as requested on various and sundry matters; (11) the failure to submit to the jury the...
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