American Manufacturers Mutual Insurance v. E A Technical Services, Inc.

608 S.E.2d 275, 270 Ga. App. 883, 2004 Fulton County D. Rep. 3880, 2004 Ga. App. LEXIS 1547
CourtCourt of Appeals of Georgia
DecidedNovember 24, 2004
DocketA04A0903
StatusPublished
Cited by6 cases

This text of 608 S.E.2d 275 (American Manufacturers Mutual Insurance v. E A Technical Services, Inc.) 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
American Manufacturers Mutual Insurance v. E A Technical Services, Inc., 608 S.E.2d 275, 270 Ga. App. 883, 2004 Fulton County D. Rep. 3880, 2004 Ga. App. LEXIS 1547 (Ga. Ct. App. 2004).

Opinion

Adams, Judge.

Reformation of contract is available where a mutual mistake results in a contract that does not express the intent of the parties. In this case, two related companies intended to apply for several types of coverage from the Kemper Insurance Companies. Two of the three policies Kemper subsequently issued covered both companies, but the commercial automobile insurance policy was issued in the name of only one of the companies. The trial court granted summary judgment in favor of the omitted company, E A Technical Services, Inc. (E A Tech), on its claim that it was entitled to reformation of the policy, and denied Kemper’s cross-motion. Kemper appeals.

On appeal from a grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom most favorably to the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802, 802-803 (500 SE2d 591) (1998).

The evidence shows that E A Tech and Engineering Associates, Inc. are two related companies in related businesses. They have common ownership, share office space, and have the same mailing address. For the policy year June 1, 2001, through May 31, 2002, the two companies contacted independent insurance agent Hugh Holley, with whom they have had a twenty-year relationship, for the purpose of obtaining quotes — for both companies — for four types of insurance: commercial automobile coverage, workers’ compensation coverage, commercial catastrophic loss, and business owners coverage.

[884]*884The trial court found as a matter of undisputed fact, and E ATech argues strenuously, that in response to the companies’ request, Holley, through his agency Hilb, Rogal & Hamilton of Atlanta, Inc. (HRH), prepared only one standard industry application form for the purpose of obtaining quotes on all the coverage sought. Indeed, only one application is in the record. On that application, in a box marked “First Named Insured & Other Named Insureds,” only “Engineering Assoc., Inc.” is typed, followed by sufficient space for additional names. In the next box, which is entitled “Mailing Address (of First Named Insured),” the following is typed: “EATechnical Services, Inc., 2625 Cumberland Parkway, Suite 100; Atlanta GA 30339.” According to Holley, E ATech was supposed to be listed in the “Named Insured” box, but as a result of a clerical mistake by his staff, the name was typed in the wrong place.

Eventually, insurance companies doing business as the Kemper Insurance Companies issued three policies (which included all four types of coverage sought): (1) a “Business Automobile Coverage” policy; (2) a “Workers Compensation and Employers Liability Policy”; and (3) a “Premier Business Owners Special Policy.” The latter two policies named both E ATech and Engineering Associates as insured, but the automobile policy omitted E ATech. HRH later issued several certificates of insurance that stated that E A Tech was covered by all three policies. And Kemper sent a combined invoice for the automobile policy and the business owners policy that was addressed to both companies.

During the policy year, an employee of E A Tech was involved in an automobile accident that resulted in two deaths. Two civil actions were then filed against E A Tech, in April and September 2002 respectively, in which it was alleged that the company should be vicariously liable. Kemper furnished a lawyer to defend E A Tech in the first action without any reservation of rights. On August 29,2002, prior to the second suit, Kemper denied coverage under the automobile policy because E A Tech was not a named insured under that policy. It continued to provide a defense and $2 million of coverage under the “Commercial Catastrophe Endorsement” of the business owners policy with regard to both suits, the first of which was eventually settled. The effect of the disclaimer reduces the potential coverage from a total of $3 million to $2 million.

E A Tech filed a complaint seeking reformation of the automobile policy to include it as a named insured. The company sought summary judgment, as did Kemper. The trial court granted summary judgment in favor of E A Tech and held that it was entitled to reformation for two reasons. First, the court concluded as a matter of law that Holley was a dual agent and that, therefore, the mistake that [885]*885he or his staff made would be considered a mutual mistake, which is grounds for reformation. Second, Kemper ratified Holley’s conduct by sending policy invoices jointly to both parties.

1. “A petition for reformation of a written contract will lie where by mistake of the scrivener and by oversight of the parties, the writing does not embody or fully express the real contract of the parties. The cause of the defect is immaterial so long as the mistake is common to both parties to the transaction.” (Citations and punctuation omitted.) Curry v. Curry, 267 Ga. 66, 67 (1) (473 SE2d 760) (1996). See also Zaimis v. Sharis, 275 Ga. 532, 533 (570 SE2d 313) (2002); OCGA § 23-2-31 (“Equity will not reform a written contract unless the mistake is shown to be the mistake of both parties. . . .”).

Holley’s staff made a clerical error, and there is no question that Holley, as an independent agent, would generally be considered E A Tech’s agent. European Bakers v. Holman, 177 Ga.App. 172, 173-174 (2) (338 SE2d 702) (1985) (“Independent insurance agents or brokers are generally considered the agent of the insured, not the insurer.”). However, this is only a general rule, and sometimes an independent agent can be considered an agent of both the insured and the insurer. Id. at 174; St. Paul Fire &c. Ins. Co. v. Clark, 255 Ga. App. 14, 20 (566 SE2d 2) (2002); Universal Security Ins. Co. v. Lowery, 195 Ga. App. 621, 622-623 (394 SE2d 416) (1990). See also Home Materials v. Auto Owners Ins. Co., 250 Ga. 599 (300 SE2d 139) (1983) (case tried on stipulation that agent was a dual agent). A mistake made by a dual agent could be attributed to both parties. See generally Carlton v. Moultrie Banking Co., 170 Ga. 185 (3) (152 SE 215) (1930) (knowledge of a dual agent is imputable to both principals). See also Remediation Svcs. v. Ga.-Pacific Corp., 209 Ga. App. 427, 430 (1) (433 SE2d 631) (1993) (dual agency per se is not prohibited).

But regardless of whether Holley was a dual agent, Kemper could be seen as playing a role in the mistake if the facts show that Kemper acted inconsistently in response to only one application. If Kemper received only one application, with E A Tech’s name shown in the mailing address box, it responded inconsistently by issuing two policies in the name of both companies and one policy in the name of Engineering Associates alone. Yet Kemper stands by the two policies that cover both companies. In other words, Kemper does not contend that it mistakenly insured both companies on those two policies. It has not sought reformation of those two policies. Accordingly, Kemper admits that it intended to cover both companies on those two policies. If it did so based on only the one flawed application, we would affirm the trial court’s decision on the ground that Kemper must have played a role in the mistake that led to the omission of E A Tech on the automobile policy.

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608 S.E.2d 275, 270 Ga. App. 883, 2004 Fulton County D. Rep. 3880, 2004 Ga. App. LEXIS 1547, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-manufacturers-mutual-insurance-v-e-a-technical-services-inc-gactapp-2004.