Royal Capital Development, LLC v. Maryland Casualty Co.

728 S.E.2d 234, 291 Ga. 262, 2012 Fulton County D. Rep. 1767, 2012 WL 1909842, 2012 Ga. LEXIS 501
CourtSupreme Court of Georgia
DecidedMay 29, 2012
DocketS12Q0209
StatusPublished
Cited by18 cases

This text of 728 S.E.2d 234 (Royal Capital Development, LLC v. Maryland Casualty Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Royal Capital Development, LLC v. Maryland Casualty Co., 728 S.E.2d 234, 291 Ga. 262, 2012 Fulton County D. Rep. 1767, 2012 WL 1909842, 2012 Ga. LEXIS 501 (Ga. 2012).

Opinion

Thompson, Justice.

By way of Royal Capital Dev. v. Maryland Cas. Co., 659 F3d 1050 (11th Cir. 2011), the United States Court of Appeals asked this Court to decide the following question of law:

For an insurance contract providing coverage for “direct physical loss of or damage to” a building that allows the insurer the option of paying either “the cost of repairing the building” or “the loss of value,” if the insurer elects to . . . repair the building, must it also compensate the insured for the diminution in value of the property resulting from stigma due to its having been physically damaged?

[263]*263This question stems from a dispute over the proper interpretation under Georgia law of a contract insuring real property. The primary issue presented to this Court is whether our ruling in State Farm Mut. Auto. Ins. Co. v. Mabry, 274 Ga. 498 (556 SE2d 114) (2001), a case involving an automobile insurance policy wherein we held that a provision requiring the insurer to pay for loss to the insured’s car required the insurer to also pay for any diminution in value of the repaired vehicle, is applicable. As the Eleventh Circuit observed, “the single question presented in this appeal is whether the Georgia courts would hold that the Mabry rule extends to standard insurance contracts for buildings.” Royal Capital Dev., 659 F3d at 1052. For the reasons that follow, we hold that our ruling in Mabry is not limited by the type of property insured, but rather speaks generally to the measure of damages an insurer is obligated to pay.

The facts giving rise to this question are summarized as follows: Royal Capital owns an eight-story commercial building in the Buck-head area of Atlanta. In 2003, Royal Capital purchased the disputed insurance policy from Maryland Casualty to insure the building. After construction activity on an adjacent property caused physical damage to the building, Royal Capital submitted a timely claim under the policy to Maryland Casualty, seeking both the costs of repair and the post-repair diminution in value resulting from the damage. Maryland Casualty acknowledged that the damage to the building was a covered cause of loss under the policy and paid $1,132,072.96 to compensate Royal Capital for the estimated costs of repair. However, Maryland Casualty refused to acknowledge any responsibility to compensate Royal Capital for the alleged diminution in value of the property.

Royal Capital filed a one-count complaint in the Superior Court of Fulton County, Georgia and Maryland Casualty removed the case to the United States District Court for the Northern District of Georgia pursuant to 28 USC § 1332. Deferring discovery on the actual extent of the building’s loss of value, the parties filed cross-motions for summary judgment on the narrow issue of whether the insurance contract allowed recovery of diminution of value damages in addition to the costs of repair under Georgia law. The district court granted Maryland Casualty’s motion for summary judgment, holding that Mabry was inapplicable because it dealt exclusively with a consumer automobile policy and thus diminution of value damages were not available under this contract insuring real property.

On appeal, the Eleventh Circuit determined that the sole question presented was whether Royal Capital’s insurance contract with Maryland Casualty required the insurer to pay for the alleged “diminution in value” of the insured building in addition to the costs [264]*264of repair. Royal Capital Dev., 659 F3d at 1052. In light of conflicting federal decisions1 and finding no controlling precedent from Georgia state courts, the Eleventh Circuit determined that this case raised an important unsettled question of state law. Accordingly, it certified to this Court the question of the proper interpretation of the parties’ insurance contract in light of Mabry. Id. at 1054.

1. Royal Capital contends that pursuant to Mabry, the insurance coverage provided under the contract at issue extends to compensation for the building’s diminution in value resulting from stigma due to the building’s past physical damage, even after all repairs have been made. In Mabry, this Court determined that

value, not condition, is the baseline for the measure of damages in a claim under an automobile insurance policy in which the insurer undertakes to pay for the insured’s loss from a covered event, and that a limitation of liability provision affording the insurer an option to repair serves only to abate, not eliminate, the insurer’s liability for the difference between pre-loss value and post-loss value.

274 Ga. at 506. As we noted in our decision, “[Recognition of diminution in value as an element of loss to be recovered on the same basis as other elements of loss merely reflects economic reality.” Id. at 508.

These same principles have long been applied under Georgia law in cases involving the proper determination for measuring damages to real property. Empire Mills Co. v. Burrell Engineering & Constr. Co., 18 Ga. App. 253 (89 SE 530) (1916) (as a general rule the measure of damages in actions for real property is the difference in value before and after the injury to the premises). This Court has consistently held that the measure of damages in such cases is intended to place an injured party, as nearly as possible, in the same position it would have been if the injury had never occurred. John Thurmond & Assoc. v. Kennedy, 284 Ga. 469 (668 SE2d 666) (2008). See BDO Seidman v. Mindis Acquisition Corp., 276 Ga. 311 (1) (578 SE2d 400) (2003); Redman Dev. Corp. v. Piedmont Heating &c., 128 Ga.App. 447 (197 SE2d 167) (1973). Moreover, this Court has long considered diminution in value to be an element in determining the proper [265]*265measure of damages to real property. See Thurmond, 284 Ga. at 470; Harrison v. Kiser, 79 Ga. 588 (4 SE 320) (1887); Mercer v. J & M Transp. Co., 103 Ga. App. 141 (118 SE2d 716) (1961) (measuring damages by diminution in value where restoration would require construction of entirely new home).

In applying these principles, this Court has recognized that under Georgia law, cost of repair and diminution in value can be alternative, although often interchangeable, measures of damages with respect to real property. Thurmond, 284 Ga. at 471; Ray v. Strawsma, 183 Ga. App. 622, 623 (359 SE2d 376) (1987). More to the point in this case, in Thurmond we observed:

Although unusual, it may sometimes be appropriate, in order to make the injured party whole, to award a combination of both measures of damages. In such cases, notwithstanding remedial measures undertaken by the injured party, there remains a diminution in value of the property, and an award of only the costs of remedying the defects will not fully compensate the injured party. [Cit.]

Thurmond, 284 Ga. at 471, n. 2. Based on well-established precedent authorizing full recovery, including in some circumstances both diminution in value and cost of repair, we thus reject Maryland Casualty’s contention that the contract at issue did not include coverage for post-repair diminution in value as no insurer or insured had reason to expect such coverage under a standard real property insurance policy.

2. Maryland Casualty relies upon the Georgia Court of Appeals decision in

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Bluebook (online)
728 S.E.2d 234, 291 Ga. 262, 2012 Fulton County D. Rep. 1767, 2012 WL 1909842, 2012 Ga. LEXIS 501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/royal-capital-development-llc-v-maryland-casualty-co-ga-2012.