Georgia Farm Bureau Mutual Insurance v. Coleman

Court of Appeals of Georgia

Georgia Farm Bureau Mutual Insurance v. Coleman

174 S.E.2d 351, 121 Ga. App. 510, 1970 Ga. App. LEXIS 1267

CourtCourt of Appeals of Georgia

DecidedMarch 12, 1970

Docket44798

StatusPublished

Cited by14 cases

This text of 174 S.E.2d 351 (Georgia Farm Bureau Mutual Insurance v. Coleman) 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.

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Georgia Farm Bureau Mutual Insurance v. Coleman, 174 S.E.2d 351, 121 Ga. App. 510, 1970 Ga. App. LEXIS 1267 (Ga. Ct. App. 1970).

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Opinions

Deen, Judge.

The plaintiff sued to recover expenses for medical services under an insurance policy. A stipulation of the parties recited in the trial court’s pre-trial order states that plaintiff’s wife was killed in a collision while a passenger in her adult son’s car. The son lived with his parents, but his car was not listed on his father’s policy. Plaintiff sued for benefits under Part II of his policy with defendant which undertook to pay for medical and funeral expenses resulting from bodily injury to the named insured or his spouse while occupying an automobile. Defendant refused to pay the claim because of an exclusion in the policy. The defendant filed a motion to dismiss the complaint and upon the above [511]*511stipulation the trial court ruled as a matter of law that the claim did not fall within the policy exclusion. The court then heard evidence on three questions of fact and rendered judgment for the plaintiff. The defendant appeals, contending that this is contrary to law for the reason that under a proper construction of the policy judgment is demanded in its favor.

The clause in question reads: “This policy does not apply . . . to bodily injury (b) sustained by the named insured or a relative (1) while occupying an automobile owned by or furnished for the regular use of either the named insured or any relative, other than the automobile described herein or its replacement.” (Emphasis supplied.) By definitions contained in the policy the plaintiff's wife, as well as himself, was a. named insured. A relative as defined in the policy “means a relative of the named insured who is a resident of the same-household, provided neither such relative nor his spouse owns a private passenger automobile.” (Emphasis supplied.) It is undisputed that the car in which the decedent was riding belonged to her son; therefore, under the precise terms of the definition the son was not a relative. That such definition and all its parts constituted words of art intentionally placed in the policy by the insurer is further indicated by the fact that in another part of the policy, where the insured did not wish to limit the word relative to a relative who did not own an automobile, the language of Exclusion (m) of Part I of the policy is worded “a person who is related to the insured and is a resident of the same household.” Had the company wished to include all relatives living in the-household in the exclusion here dealt with, it could have used the language as it appears in Part I, and the fact that the company made its own definition (a relative living in the household who does not own an automobile) applicable to Part II sufficiently indicates its intention not to exclude, under the medical payments clause, payments to an insured because of injuries received in the automobile of an owner-relative, regardless of whether he did or did not live in the household. Any other construction amounts to rewriting the policy in favor of the insurer, and making a new contract for the parties, which cannot be done. Pilot Life Ins. Co. v. Morgan, 94 Ga. App. 394, 399 (94 SE2d 765). Furthermore,, provisions of the policy, if susceptible of more than one mean[512]*512ing, must be construed liberally in favor of the insured. North British &c. Ins. Co. v. Mercer, 211 Ga. 161 (84 SE2d 570). If the terms are unambiguous, the court must declare the contract as made by the parties. Genone v. Citizens Ins. Co., 207 Ga. 83 (60 SE2d 125). Exceptions and exclusions also must always be taken most strongly against the insurer. Insurance Co. of N. A. v. Samuels, 31 Ga. App. 258 (120 SE 444); American Cas. Co. v. Callaway, 75 Ga. App. 799 (44 SE2d 400).

Submitted October 8, 1969 Decided March 12, 1970 Rehearing denied March 27, 1970 Sharpe, Sharpe, Hartley & Newton, T. Malone Sharpe, for appellant. Nat O. Carter, for appellee.

Since the decedent, as to the medical expense clause of the automobile insurance policy, is not barred by the exclusionary clause, the judgment in favor of the plaintiff was without error.

Judgment affirmed.

Bell, C. J., Quillian, Whitman and Evans, JJ., concur. Pannell, J., concurs specially. Jordan, P. J., Hall, P. J., and Eberhardt, J., dissent.

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Deen, Judge.

The plaintiff sued to recover expenses for medical services under an insurance policy. A stipulation of the parties recited in the trial court’s pre-trial order states that plaintiff’s wife was killed in a collision while a passenger in her adult son’s car. The son lived with his parents, but his car was not listed on his father’s policy. Plaintiff sued for benefits under Part II of his policy with defendant which undertook to pay for medical and funeral expenses resulting from bodily injury to the named insured or his spouse while occupying an automobile. Defendant refused to pay the claim because of an exclusion in the policy. The defendant filed a motion to dismiss the complaint and upon the above [511]*511stipulation the trial court ruled as a matter of law that the claim did not fall within the policy exclusion. The court then heard evidence on three questions of fact and rendered judgment for the plaintiff. The defendant appeals, contending that this is contrary to law for the reason that under a proper construction of the policy judgment is demanded in its favor.

The clause in question reads: “This policy does not apply . . . to bodily injury (b) sustained by the named insured or a relative (1) while occupying an automobile owned by or furnished for the regular use of either the named insured or any relative, other than the automobile described herein or its replacement.” (Emphasis supplied.) By definitions contained in the policy the plaintiff's wife, as well as himself, was a. named insured. A relative as defined in the policy “means a relative of the named insured who is a resident of the same-household, provided neither such relative nor his spouse owns a private passenger automobile.” (Emphasis supplied.) It is undisputed that the car in which the decedent was riding belonged to her son; therefore, under the precise terms of the definition the son was not a relative. That such definition and all its parts constituted words of art intentionally placed in the policy by the insurer is further indicated by the fact that in another part of the policy, where the insured did not wish to limit the word relative to a relative who did not own an automobile, the language of Exclusion (m) of Part I of the policy is worded “a person who is related to the insured and is a resident of the same household.” Had the company wished to include all relatives living in the-household in the exclusion here dealt with, it could have used the language as it appears in Part I, and the fact that the company made its own definition (a relative living in the household who does not own an automobile) applicable to Part II sufficiently indicates its intention not to exclude, under the medical payments clause, payments to an insured because of injuries received in the automobile of an owner-relative, regardless of whether he did or did not live in the household. Any other construction amounts to rewriting the policy in favor of the insurer, and making a new contract for the parties, which cannot be done. Pilot Life Ins. Co. v. Morgan, 94 Ga. App. 394, 399 (94 SE2d 765). Furthermore,, provisions of the policy, if susceptible of more than one mean[512]*512ing, must be construed liberally in favor of the insured. North British &c. Ins. Co. v. Mercer, 211 Ga. 161 (84 SE2d 570). If the terms are unambiguous, the court must declare the contract as made by the parties. Genone v. Citizens Ins. Co., 207 Ga. 83 (60 SE2d 125). Exceptions and exclusions also must always be taken most strongly against the insurer. Insurance Co. of N. A. v. Samuels, 31 Ga. App. 258 (120 SE 444); American Cas. Co. v. Callaway, 75 Ga. App. 799 (44 SE2d 400).

Submitted October 8, 1969 Decided March 12, 1970 Rehearing denied March 27, 1970 Sharpe, Sharpe, Hartley & Newton, T. Malone Sharpe, for appellant. Nat O. Carter, for appellee.

Since the decedent, as to the medical expense clause of the automobile insurance policy, is not barred by the exclusionary clause, the judgment in favor of the plaintiff was without error.

Judgment affirmed.

Bell, C. J., Quillian, Whitman and Evans, JJ., concur. Pannell, J., concurs specially. Jordan, P. J., Hall, P. J., and Eberhardt, J., dissent.

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174 S.E.2d 351, 121 Ga. App. 510, 1970 Ga. App. LEXIS 1267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/georgia-farm-bureau-mutual-insurance-v-coleman-gactapp-1970.

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