Allstate Insurance v. Brannon

447 S.E.2d 666, 214 Ga. App. 300, 94 Fulton County D. Rep. 2642, 1994 Ga. App. LEXIS 854
CourtCourt of Appeals of Georgia
DecidedJuly 15, 1994
DocketA94A0792
StatusPublished
Cited by10 cases

This text of 447 S.E.2d 666 (Allstate Insurance v. Brannon) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allstate Insurance v. Brannon, 447 S.E.2d 666, 214 Ga. App. 300, 94 Fulton County D. Rep. 2642, 1994 Ga. App. LEXIS 854 (Ga. Ct. App. 1994).

Opinions

Pope, Chief Judge.

Allstate Insurance Company (“Allstate”) brought this declaratory judgment action seeking a determination as to its duty to defend and indemnify its insured, Jimmy Dowda, in a tort action filed against him by appellee/Shane Brannon. Allstate alleged it was not obligated to defend or indemnify Dowda because liability coverage was excluded by three separate exclusions. Factual issues were submitted to the jury by way of special interrogatories. The jury found these policy exclusions inapplicable to the facts of the case and judgment was entered on the special verdicts. The trial court denied Allstate’s motion for new trial and this direct appeal followed.

As is pertinent here, the evidence shows the following: Shane Brannon is married to Dowda’s stepdaughter, Sandy. The Brannons had purchased a mobile home which was not yet habitable, and the Brannons were staying for brief periods with various relatives. On June 22, 1991, the Brannons were staying at Dowda’s home. Shane Brannon had been out drinking that Saturday night with Dowda’s stepson, and when he arrived home, he and Sandy started arguing. Dowda was downstairs and could hear Sandy and Shane arguing upstairs in the attic. When Dowda heard Sandy cry out “Get him out of here,” he ordered Shane downstairs. According to Brannon, Dowda told him “you need to leave.” Brannon came downstairs and he and Dowda started arguing. Dowda told Brannon to leave and Brannon responded by telling the older man to “Come outside.” Dowda went out on his porch with a loaded pistol (a Smith & Wesson .44 Magnum with an adjusted light trigger pull) and told Brannon to “just get on down the road.” As Brannon took a step forward, Dowda cocked the trigger and called out “Now, stop.” Dowda’s wife tried to grab the pistol from his hand, causing the weapon to discharge and strike Brannon in the left forearm.

1. Allstate contends that the trial court erred by charging the jury as to certain legal principles applicable to the construction of the insurance policy. Specifically, Allstate enumerates as error the following charge: “Now I charge you, ladies and gentleman, that an insurance policy is a contract. I charge you that an exclusionary provision in an insurance contract is to be construed strictly against the insurer, but it is equally true that the construction must be a reasonable construction.”

[301]*301This court has consistently held that charging the jury on legal principles dealing with contract construction constitutes reversible error. Likewise, it was error in the instant case to give the jury the quoted charge on contract construction. It is not the province of the jury to construe unambiguous contracts. Empire Mills Co. v. Burrell Engineering &c. Co., 18 Ga. App. 253 (1) (89 SE 530) (1916). OCGA § 13-2-1 provides: “The construction of a contract is a question of law for the court. Where any matter of fact is involved, the jury should find the fact.” “ ‘The rules of law set forth in the Code with respect to the construction of contracts are framed for the guidance and direction of the courts. Except in cases where the meaning of obscurely written words is involved, and where there is evidence tending to show that the meaning of such words was differently understood in one way or another by the parties to the contract, it is improper to submit to the jury any question as to the construction of the contract. Except in such cases it is clearly error and improper for the court to give the jury any instruction with regard to the manner in which the contract should be construed. . . .’ California Ins. Co. v. Blumberg, 101 Ga. App. 587, 591-592 (115 SE2d 266) (1960).” (Emphasis supplied.) Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 336 (3) (291 SE2d 410) (1982).

There was no issue in this case concerning the meaning of the exclusionary provisions themselves. The only issues in this case were whether actions by the insured did or did not fall within the clear and unambiguous terms of the policy exclusions. See Colonial Penn, 162 Ga. App. at 336 (3) (holding charge on construction was improper when only issue was whether bodily injury was either expected or intended from the standpoint of the insured) and Transamerica Ins. Co. v. Thrift-Mart, 159 Ga. App. 874 (285 SE2d 566) (1981) (holding improper to charge on construction when only issue was whether property damage was either expected or intended from the standpoint of the insured). The issues here were whether the facts showed: 1) Brannon was an insured under the policy as a relative of the named insured residing in the same household; 2) Brannon was injured as a result of Dowda’s intentional act; and 3) the shooting was a criminal act. There was nothing for the jury to construe and furnishing the foregoing instruction “injected into the case issues not proper for the jury to consider.” Blumberg at 592.

We also reject the contention that submission of these questions to the jury by means of special interrogatories removed any possibility of placing improper issues before the jury. In the whole court case of Ga. Farm Bureau Mut. Ins. Co. v. Burnett, 167 Ga. App. 480 (2) (306 SE2d 734) (1983) a majority of this court held that charging the jury to construe the insurance contract in favor of the insured and against the insurer constituted reversible error. In that declaratory [302]*302judgment action, as in the case at bar, the factual issues were presented to the jury by way of special interrogatory1 and the policy provisions were not in issue. Like the majority in Ga. Farm Bureau, we conclude the error in charging the jury in this case cannot be deemed harmless, Colonial Penn, 162 Ga. App. at 336 (3), and Allstate is entitled to a new trial.

2. Allstate also asserts the trial court erroneously recharged the jury on the definition of “resident” as that term is used in the policy provisions defining insured persons in addition to the named insured and his spouse. The record reflects the trial court correctly charged the jury twice on this definition. However, when the trial court, upon request of a juror, repeated the instruction for a third time he changed an “or” to an “and,” so that an exclusion applicable in the disjunctive became applicable in the conjunctive. This misstatement was clearly a slip of the tongue and is unlikely to occur on retrial. Moreover, this palpable slip of the tongue resulted in harmless error in the context of the entire charge. See Rodriguez v. State, 211 Ga. App. 256, 257 (3) (439 SE2d 510) (1993). It follows that the trial court did not err in overruling the motion for new trial on this ground.

3. Since the issue may arise on retrial, we consider Allstate’s third enumeration of error which contends that the trial court impermissi-bly allowed the introduction of evidence relating to injuries received by Shane Brannon when such evidence was irrelevant to the trial of the declaratory judgment action and designed to gain sympathy from the jury. OCGA § 24-2-1 provides: “Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly.

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Allstate Insurance v. Brannon
447 S.E.2d 666 (Court of Appeals of Georgia, 1994)

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Bluebook (online)
447 S.E.2d 666, 214 Ga. App. 300, 94 Fulton County D. Rep. 2642, 1994 Ga. App. LEXIS 854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allstate-insurance-v-brannon-gactapp-1994.