Hanover Insurance v. Federal National Mortgage Ass'n

Court of Appeals of Georgia

Hanover Insurance v. Federal National Mortgage Ass'n

249 S.E.2d 626, 147 Ga. App. 573, 1978 Ga. App. LEXIS 2853

CourtCourt of Appeals of Georgia

DecidedSeptember 25, 1978

Docket56238

StatusPublished

Cited by3 cases

This text of 249 S.E.2d 626 (Hanover Insurance v. Federal National Mortgage Ass'n) 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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Hanover Insurance v. Federal National Mortgage Ass'n, 249 S.E.2d 626, 147 Ga. App. 573, 1978 Ga. App. LEXIS 2853 (Ga. Ct. App. 1978).

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Opinion

Webb, Judge.

This is an appeal by an insurer from a grant of summary judgment against it, and in favor of the mortgagee-loss payees, awarding recovery to them under a policy of fire insurance covering an owner-occupied dwelling. The policy contained a mortgagee clause setting forth various rights of the mortgagee-loss payees, "Provided also, that the mortgagee (or trustee) shall notify this Company of any change of ownership or occupancy or increase of hazard, which shall come to the knowledge of said mortgagee (or trustee) and, unless permitted by this policy, it shall be noted thereon, and the mortgagee (or trustee) shall, on demand, pay the premium for such increased hazard for the term of the use thereof; otherwise, this policy shall be null and void.”

It is the contention of the insurer that this clause militated against the grant of summary judgment because prior to the loss of the home by fire the mortgagee had foreclosed and bought it in, taking a deed under power of sale, but had failed to notify the insurer as required by the above clause that the ownership had changed, the home was vacant, and the hazard had increased. Inasmuch as the movants for summary judgment failed to carry their burden of eliminating these issues from the case, the judgment must be reversed. Cumberland Assoc. v. Market Assistants, Inc., 142 Ga. App. 483 (236 SE2d 109) (1977).

While the insurer contends that Headnote (4) in Southern States Fire &c. Ins. Co. v. Napier, 22 Ga. App. [574]*574361 (96 SE 15) (1918) was wrongly decided inasmuch as its holding that the mortgagee need not notify the insurer of its obtaining title to the property is in direct ponflict with the plain language of the contract, we need not review Napier at this time since the additional elements of change of occupancy and increase of hazard, which are present in the policy here but absent there, serve to distinguish it.

Argued September 5, 1978 Decided September 25, 1978 Rehearing denied October 18, 1978 James B. Wall, A. Rowland Dye, Thomas W. Tucker, for appellant. Nixon, Yow, Waller & Capers, Regnald Maxwell, Jr., for appellees.

Judgment reversed.

Quillian, P. J., and McMurray, J., concur.

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Webb, Judge.

This is an appeal by an insurer from a grant of summary judgment against it, and in favor of the mortgagee-loss payees, awarding recovery to them under a policy of fire insurance covering an owner-occupied dwelling. The policy contained a mortgagee clause setting forth various rights of the mortgagee-loss payees, "Provided also, that the mortgagee (or trustee) shall notify this Company of any change of ownership or occupancy or increase of hazard, which shall come to the knowledge of said mortgagee (or trustee) and, unless permitted by this policy, it shall be noted thereon, and the mortgagee (or trustee) shall, on demand, pay the premium for such increased hazard for the term of the use thereof; otherwise, this policy shall be null and void.”

It is the contention of the insurer that this clause militated against the grant of summary judgment because prior to the loss of the home by fire the mortgagee had foreclosed and bought it in, taking a deed under power of sale, but had failed to notify the insurer as required by the above clause that the ownership had changed, the home was vacant, and the hazard had increased. Inasmuch as the movants for summary judgment failed to carry their burden of eliminating these issues from the case, the judgment must be reversed. Cumberland Assoc. v. Market Assistants, Inc., 142 Ga. App. 483 (236 SE2d 109) (1977).

While the insurer contends that Headnote (4) in Southern States Fire &c. Ins. Co. v. Napier, 22 Ga. App. [574]*574361 (96 SE 15) (1918) was wrongly decided inasmuch as its holding that the mortgagee need not notify the insurer of its obtaining title to the property is in direct ponflict with the plain language of the contract, we need not review Napier at this time since the additional elements of change of occupancy and increase of hazard, which are present in the policy here but absent there, serve to distinguish it.

Argued September 5, 1978 Decided September 25, 1978 Rehearing denied October 18, 1978 James B. Wall, A. Rowland Dye, Thomas W. Tucker, for appellant. Nixon, Yow, Waller & Capers, Regnald Maxwell, Jr., for appellees.

Judgment reversed.

Quillian, P. J., and McMurray, J., concur.

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249 S.E.2d 626, 147 Ga. App. 573, 1978 Ga. App. LEXIS 2853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hanover-insurance-v-federal-national-mortgage-assn-gactapp-1978.

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