Parris & Son, Inc. v. Campbell

196 S.E.2d 334, 128 Ga. App. 165, 1973 Ga. App. LEXIS 1427
CourtCourt of Appeals of Georgia
DecidedJanuary 4, 1973
Docket47512, 47513
StatusPublished
Cited by82 cases

This text of 196 S.E.2d 334 (Parris & Son, Inc. v. Campbell) 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
Parris & Son, Inc. v. Campbell, 196 S.E.2d 334, 128 Ga. App. 165, 1973 Ga. App. LEXIS 1427 (Ga. Ct. App. 1973).

Opinions

Eberhardt, Presiding Judge.

1. Most of the issues before us are controlled by general contract law, insurance being a matter of contract. Cherokee Credit Life Ins. Co. v. Baker, 119 Ga. App. 579 (1) (168 SE2d 171). "There is no greater sanctity and no more mystery about a contract of insurance than any other. The same rules of construction apply to it as to other contracts.” Clay v. Phoenix Ins. Co., 97 Ga. 44, 53 (25 SE 417). Accord: North British &c. Ins. Co. v. Tye, 1 Ga. App. 380 (1) (58 SE 110). " 'It is well to keep in mind . . . that insurance is purely a matter of contract.’ ” Mitchell v. Federal Life Ins. Co., 57 Ga. App. 206, 208 (194 SE 921).

2. Plaintiffs first three-year policy was extended from year to year upon the payment of an additional year’s premium until expiration of the three-year term. The current policy is upon a standard form, approved by the State Insurance Commissioner as the law provides. It made some changes in the coverage as compared with the prior policy. It was a new contract, qualifying as a renewal as renewals are defined in Citizens Oil Co. v. Head, 201 Ga. 542 (2) (40 SE2d 559). The parties are free to make their own contracts, within the prescribed bounds of law, and the courts are not authorized, by interpretation, to rewrite or to change them, or to extend the coverage. McCullough v. Kirby, 204 Ga. 738 (5) (51 SE2d 812); West View Corp. v. Alston, 208 Ga. 122, 127 (65 SE2d 406). This principle applies to insurance contracts. Cato v. Aetna Life Ins. Co., 164 Ga. 392, 398 (138 SE 787); Hartford Accident &c. Co. v. Hulsey, 220 Ga. 240, 241 (138 SE2d 310).

3. The representations alleged to have been made by the agent of the insurer, whether prior to or after the loss, to the effect that the insured was "fully covered” can amount to no more than an opinion as to coverage or a [169]*169legal opinion as to the effect of the contract, which does not give rise to actionable fraud. See Self v. American Nat. Ins. Co., 51 Ga. App. 251 (2) (180 SE 21); Home Ins. Co. v. Montgomery, 59 Ga. App. 173, 175 (200 SE 168); National Life &c. Ins. Co. v. Parker, 67 Ga. App. 1, 8 (19 SE2d 409); Sherwin-Williams Co. v. St. Paul-Mercury Indem. Co., 97 Ga. App. 298 (102 SE2d 919), and cits.; Fields v. Fire & Cas. Ins. Co., 101 Ga. App. 561 (114 SE2d 540); Wells v. Metropolitan Life Ins. Co., 107 Ga. App. 826, 834 (131 SE2d 634); Bryant v. Motors Ins. Corp., 109 Ga. App. 47, 52 (134 SE2d 905); Brown v. Mack Trucks, Inc., 111 Ga. App. 164 (141 SE2d 208); Sasser v. Coastal States Life Ins. Co., 113 Ga. App. 17, 21 (147 SE2d 5); Posey v. Gulf Life Ins. Co., 115 Ga. App. 531 (154 SE2d 754). And see Sorrells v. Atlanta Transit System, 218 Ga. 623 (129 SE2d 846); Williams v. Lockhart, 221 Ga. 343 (3) (144 SE2d 528); Walker v. Story, 14 Ga. App. 803 (82 SE 355); DeMayo v. Walton, 114 Ga. App. 483 (151 SE2d 886).

4. There was no relationship of principal and agent between the insured and the agent of the insurer, and thus no fiduciary relationship. Sherwin-Williams Co. v. St. Paul-Mercury Indem., Co., 97 Ga. App. 298, 299, supra; Fields v. Fire & Cas. Ins. Co., 101 Ga. App. 561, 562, supra; Clinton v. State Farm Mut. Auto. Ins. Co., 110 Ga. App. 417 (2) (138 SE2d 687); Sutker v. Penn. Ins. Co., 115 Ga. App. 648, 653 (155 SE2d 694).

5. Nor does the expression of an opinion as to coverage work an estoppel — even against the agent who voiced it, or against his principal. Trust Co. of Ga. v. S. & W. Cafeteria, 97 Ga. App. 268, 285 (103 SE2d 63). Fowler v. Preferred Acc. Ins. Co., 100 Ga. 330 (28 SE 398); Posey v. Gulf Life Ins. Co., 115 Ga. App. 531 (154 SE2d 745); Sasser v. Coastal States Life Ins. Co., 113 Ga. App. 17 (147 SE2d 5).

6. The representations or expressions alleged to have been made are too indefinite to constitute a contract. Necessary elements of the risk must be specified with definiteness, including the amount of the indemnity and the premium. Todd v. German-American Ins. Co., 2 Ga. [170]*170App. 789, 794 (2) (59 SE 94). "The insurance company might have been willing to insure the stock of goods and ten bales of hay for a certain premium, and yet unwilling, for the same premium, to insure the same goods if it had known that sixty bales of hay were stored in the building.” Alston v. Greenwich Ins. Co., 100 Ga. 282, 285 (29 SE 266). And see Sasser v. Coastal States Life Ins. Co., 113 Ga. App. 17, 20 supra. "The requirement of certainty extends not only to the subject matter and purpose of the contract, but also to the parties, consideration, and even the time and place of performance, where these are essential. Its terms must be such that neither party can reasonably misunderstand them. It would be inequitable to carry a contract into effect where the court is left to ascertain the intention of the parties by mere guess or conjecture, because it might be guilty of erroneously decreeing what the parties never intended or contemplated.” Williams v. Manchester Building Supply Co., 213 Ga. 99, 101 (97 SE2d 129).

If it be conceded that the representations were made, what did they mean? Did a statement that you are "fully covered” mean that everything plaintiff had was covered, or did it mean that certain items or types of property were covered to their full value? Since each of the policies provided limited coverage for the items in question, how could "fully covered” square with either of them? The representations are no more certain than a provision in an employment contract that services are to be performed "at a price to be agreed on” (Oliver Construction Co. v. Reeder, 7 Ga. App. 276 (66 SE 955)), or an agreement to purchase certain shares of stock "at a price to be mutually agreed upon of not less than $1,500.” Martin v. Cox, 13 Ga. App. 236 (79 SE 39). It is fully as indefinite as an agreement to sell "all the boxes wanted.” McCaw Mfg. Co. v. Felder, 115 Ga. 408 (41 SE 664). And see Morrow v. Southern Express Co., 101 Ga. 810 (28 SE 998); Burden v. Thomas, 104 Ga. App. 300 (121 SE2d 684). The alleged representations cannot make a contract.

And for the reasons stated in other Divisions hereof the representations, even if made, did not constitute [171]*171actionable fraud.

7. The representations alleged to have been made are uncertain and ambiguous, but the policy issued, delivered and kept by the plaintiff is plain, certain and entirely free of ambiguity as to the coverage. "[W]hen the policy limits the coverage in unambiguous terms, as was done here, courts, despite their dislike of such coverage, have no choice but to accept without alteration all such terms and limit liability thereto.” State Farm Mut. Auto. Ins. Co. v. Sewell, 223 Ga. 31, 32 (153 SE2d 432). We do not deal with a binder here, but with a complete policy that was issued and delivered many months before the loss occurred.

The attempt to expand or extend the coverage by evidence of statements made by the selling agent to the insured to the effect that the insured was "fully covered,” and thus convert a definite, plain and certain provision of the contract into one indefinite, uncertain and ambiguous must fail. Cf. Fowler v. Liberty Nat. Life Ins. Co., 73 Ga. App. 765, 770 (38 SE2d 60); Sasser v. Coastal States Life Ins.

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Bluebook (online)
196 S.E.2d 334, 128 Ga. App. 165, 1973 Ga. App. LEXIS 1427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parris-son-inc-v-campbell-gactapp-1973.