Huckaby v. Georgia Farm Bureau Mutual Insurance

Court of Appeals of Georgia

Huckaby v. Georgia Farm Bureau Mutual Insurance

231 S.E.2d 378, 140 Ga. App. 493, 1976 Ga. App. LEXIS 1532

CourtCourt of Appeals of Georgia

DecidedOctober 27, 1976

Docket52128

StatusPublished

Cited by7 cases

This text of 231 S.E.2d 378 (Huckaby v. Georgia Farm Bureau Mutual Insurance) 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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Huckaby v. Georgia Farm Bureau Mutual Insurance, 231 S.E.2d 378, 140 Ga. App. 493, 1976 Ga. App. LEXIS 1532 (Ga. Ct. App. 1976).

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Webb, Judge.

Georgia Farm issued a fire insurance policy to Huckaby insuring a tenant dwelling on acreage owned by him in Fayette County against loss by fire, lightning and other perils from January 10, 1973 to January 10, 1974. By its terms, assignment of the policy was not valid except with the written consent of the insurance company. On April 13,1973, Huckaby conveyed to Mr. and Mrs. Harbin a part of his lands, including the insured tenant house, and accepted from the purchasers for a part of the purchase price their note and a deed to secure debt reconveying to him the property. He and Harbin agreed that they would continue the insurance coverage under Huckaby’s policy until it "ran out” and Harbin paid Huckaby $112.58 in proration of the premium.

On May 19,1973, the tenant dwelling was destroyed by fire and Georgia Farm refused to make any payment on Harbin’s claim. Huckaby then filed suit seeking to collect the insurance proceeds under the policy issued to him prior to the sale. The trial court granted Georgia Farm’s motion for summary judgment, finding that Huckaby’s interest in the insured property on the date of the loss was solely that of a mortgagee under the deed to secure debt; and that transfer of the insurance policy without consent of the insurer voided the policy. Huckaby appeals and we affirm the judgment below.

Clearly the attempted assignment of the policy to Harbin was invalid. Huckaby did have an insurable interest in the indebtedness which the property secures under Code Ann. § 56-2405 (2). However, in order for him to recover he would have to show he had suffered a loss as the result of a fire within the meaning of Code Ann. § 56-2405 (3). See Norwich Union Fire Ins. Society v. Bainbridge Grocery Co., 16 Ga. App. 432, 434 (85 SE 622). Georgia Farm had the burden of proof on its motion for summary judgment. It established that Huckaby had received full payment under the security deed as those payments became due and Huckaby made no contrary showing. Thus, in the face of this proof the evidence [494]*494demanded a finding that the insured had not suffered a loss. Heimanson v. Meade, 140 Ga. App. 534 (3).

Argued May 5, 1976 Decided October 27, 1976 Rehearing denied November 19, 1976 Charles T. Ballard, for appellant. Donald M. Fain, Michael J. Gorby, for appellee.

The failure to show that the obligation under the security deed was diminished by the fire loss requires a judgment for the insurer. Furthermore, in the event a default were to occur and a foreclosure were to take place, Georgia Farm has filed with the trial court a security bond providing that if the fair market value of the property at the time of such foreclosure is less than the amount owed on the promissory note, the deficiency will be paid up to the limit of the face amount of the fire insurance policy.

Judgment affirmed.

Bell, C. J., Quillian,P. J., Clark, Stolz, Marshall and McMurray, JJ., concur. Deen, P. J., dissents. Smith, J., not participating.

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Webb, Judge.

Georgia Farm issued a fire insurance policy to Huckaby insuring a tenant dwelling on acreage owned by him in Fayette County against loss by fire, lightning and other perils from January 10, 1973 to January 10, 1974. By its terms, assignment of the policy was not valid except with the written consent of the insurance company. On April 13,1973, Huckaby conveyed to Mr. and Mrs. Harbin a part of his lands, including the insured tenant house, and accepted from the purchasers for a part of the purchase price their note and a deed to secure debt reconveying to him the property. He and Harbin agreed that they would continue the insurance coverage under Huckaby’s policy until it "ran out” and Harbin paid Huckaby $112.58 in proration of the premium.

On May 19,1973, the tenant dwelling was destroyed by fire and Georgia Farm refused to make any payment on Harbin’s claim. Huckaby then filed suit seeking to collect the insurance proceeds under the policy issued to him prior to the sale. The trial court granted Georgia Farm’s motion for summary judgment, finding that Huckaby’s interest in the insured property on the date of the loss was solely that of a mortgagee under the deed to secure debt; and that transfer of the insurance policy without consent of the insurer voided the policy. Huckaby appeals and we affirm the judgment below.

Clearly the attempted assignment of the policy to Harbin was invalid. Huckaby did have an insurable interest in the indebtedness which the property secures under Code Ann. § 56-2405 (2). However, in order for him to recover he would have to show he had suffered a loss as the result of a fire within the meaning of Code Ann. § 56-2405 (3). See Norwich Union Fire Ins. Society v. Bainbridge Grocery Co., 16 Ga. App. 432, 434 (85 SE 622). Georgia Farm had the burden of proof on its motion for summary judgment. It established that Huckaby had received full payment under the security deed as those payments became due and Huckaby made no contrary showing. Thus, in the face of this proof the evidence [494]*494demanded a finding that the insured had not suffered a loss. Heimanson v. Meade, 140 Ga. App. 534 (3).

Argued May 5, 1976 Decided October 27, 1976 Rehearing denied November 19, 1976 Charles T. Ballard, for appellant. Donald M. Fain, Michael J. Gorby, for appellee.

The failure to show that the obligation under the security deed was diminished by the fire loss requires a judgment for the insurer. Furthermore, in the event a default were to occur and a foreclosure were to take place, Georgia Farm has filed with the trial court a security bond providing that if the fair market value of the property at the time of such foreclosure is less than the amount owed on the promissory note, the deficiency will be paid up to the limit of the face amount of the fire insurance policy.

Judgment affirmed.

Bell, C. J., Quillian,P. J., Clark, Stolz, Marshall and McMurray, JJ., concur. Deen, P. J., dissents. Smith, J., not participating.

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231 S.E.2d 378, 140 Ga. App. 493, 1976 Ga. App. LEXIS 1532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/huckaby-v-georgia-farm-bureau-mutual-insurance-gactapp-1976.

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