Cotton States Mutual Insurance v. Bowden

221 S.E.2d 832, 136 Ga. App. 499, 1975 Ga. App. LEXIS 1396

• Court: Court of Appeals of Georgia
• Decided: October 20, 1975
• Docket: 50987
• Status: Published

Opinions

Deen, Presiding Judge.

Under Part I of the policy the insurer agreed to defend any suit alleging bodily injury or property damage arising out of the ownership, maintenance or use of the owned automobile. The policy further defines "owned automobile” as including a "temporary substitute automobile” which is further defined as "any private passenger, farm or utility automobile not owned by the named insured, while temporarily used as a substitute for the owned automobile when it is withdrawn from normal use because of its breakdown repair, servicing, loss, or destruction...” (Emphasis supplied.) It is uncontroverted that the insured was driving his wife’s car because of repair work being done on his truck. The insurer contends however that the words "named insured” include both the individual named in the declarations and his spouse, if a resident of the same household and therefore an automobile owned by the insured’s wife cannot be a "temporary substitute automobile” which would be covered by the policy; the definition of "named insured” under Part I of the policy bears out the insurer’s contention. The insured argues that the declarations list only his name as the "named insured” while the policy defines it to include his wife also; upon this he urges as ambiguity and a construction most favorable to himself as the insured.

We reverse the trial court and find no coverage under the policy. The contract of insurance clearly states that a "temporary substitute automobile” cannot be owned by the "named insured.” "Named insured” is likewise clearly defined in the policy as the individual named in the declarations and his spouse if residing in the same household. There was no ambiguity or deceptive verbiage involved and the policy is not open to construction but the literal meaning must be attributed to it. Fireman’s Fund Indem. Co. v. Mosaic Tile Co., 101 Ga. App. 701 (115 SE2d 263). All that need be proved to negate coverage was that the automobile was owned by the insured’s wife and that she was residing in the same household. This being done, it was error to hold that coverage was afforded under the policy.

Nor is there any merit to the insured’s argument that there is an ambiguity between the definition of "named insured” found in the declarations and in the policy itself. The definitions under Part I dealing with liability specifically state that "named insured” includes for its purposes the individual named in the declarations and his spouse if she lives in the same household. There is no ambiguity; the definition in the policy merely includes that found in the declarations. The rule that ambiguities in insurance contracts must be construed most favorably to the insured has no application when the contract is unambiguous. Hulsey v. Interstate Life &c. Ins. Co., 207 Ga. 167 (1) (60 SE2d 353). Where the language fixing the extent of liability of an insurer is unambiguous and but one reasonable construction is possible, the court must expound the contract as made. Moore v. Allstate Ins. Co., 108 Ga. App. 60 (1) (131 SE2d ).

Judgment reversed.

Bell, C. J., Quillian, Clark, Stolz and Marshall, JJ., concur. Pannell, P. J., Evans and Webb, JJ., dissent.