Southeastern Fidelity Insurance v. Fluellen

198 S.E.2d 407, 128 Ga. App. 877, 1973 Ga. App. LEXIS 1648

• Court: Court of Appeals of Georgia
• Decided: April 24, 1973
• Docket: 47793
• Status: Published

Opinions

Clark, Judge.

"I’m my own grandpaw” ran the rollicking refrain reciting a litany of the consanguineal complications created by a hill-billy’s marriage to a widow when his father entered into a nuptial union with the widow’s daughter. This popular ditty of the Twenties comes to mind in seeking to solve the legal question presented in the instant case: Is a stepson a relative of his stepfather?

Succinctly stated, Southeastern Fidelity Insurance Co. contends there is no coverage to its insured on an automobile collision loss which occurred when the insured vehicle was being driven by his eighteen-year-old stepson visiting in Dodge County from Atlanta. The stepson was not a member of the insured’s household but had "borrowed” the insured’s car while he was taking a nap, this use being without insured’s knowledge or consent. Liability was denied because the collision portion of the policy excluded coverage to any male operator under 25 years of age who was "a relative of the named insured, regardless of residence.”

Insurer appeals from an adverse summary judgment, contending the word "relative” to be defined in dictionaries as including affines as well as consanguines, embracing kin, kith, kinsfolk, and kindred. This legal contention is buttressed by reference to the famous charming doggerel by the legendary Logan Bleckley in Central R. & Bkg. Co. v. Roberts, 91 Ga. 513, 517 (18 SE 315) which dealt with qualification of a juror whose stepdaughter was married to the plaintiffs brother:

"The groom and bride each comes within The circle of the other’s kin;

But kin and kin are still- no more Related than they were before.”

Although appellant’s counsel argues that both rhyme and reason require us to reverse the trial judge, we cannot accept their contention that the word "relative” carries such an all-inclusive generic meaning in every instance. The meaning of words generally depend upon their application, purpose, and intention. "Relative” as used in an inheritance statute carries a different connotation than when used in statutes governing disqualification as a juror (Code Ann. § 59-716) or judge (Code Ann. § 24-102) or as grounds for divorce (Code Ann. § 30-102).

Thus, as here where the word "relative” is used in an insurance policy, its meaning is to be derived by application of the general rules dealing with contracts. " 'Insurance contracts are governed by the same rules of construction or interpretation, for the purpose of ascertaining the intention of the parties as apply to other contracts. [Cit.]’ ” Queen Ins. Co. v. Nalley Discount Co., 215 Ga. 837 (1) (114 SE2d 21). Among these rules are that the policy must be "construed strictly in favor of the insured and against the insurer” (Sovereign Camp, WOW v. Heflin, 188 Ga. 234, 235 (3 SE2d 559)) and that the intention of the parties "shall be enforced irrespective of all technical or arbitrary rules of construction.” Code § 20-702.

Examination of the instant insurance contract shows that in the portion dealing with uninsured motorist protection the policy uses twice the phrase "The named insured . . . his spouse and the relatives of either. ” (Emphasis supplied.) Compare this clause with the collision portion of the policy where the words are only "a relative of the named insured.” In the light of the cited rules of construction this comparison leads to the conclusion that the lower court was correct in holding the intent of the parties was to have the policy mean that the insured and his spouse were "relatives” only of their respective blood kin so that each has a separate and distinct set of "relatives.” In short, the use of the words "a relative of the named insured” was here intended to apply only to blood relatives of the insured and not "relatives” within the broad generic sense of excluding coverage to relatives of both spouses.

Although the insurer argues that each portion of the tri-partite policy represents a separate insuring agreement, it is necessary for us in determining the intention of the parties to observe the language used within the four corners of the entire contract. "The contract as a whole must be looked to in arriving at the construction of any part.” Cotton States Mut. Ins. Co. v. Hutto, 115 Ga. App. 164, 166 (154 SE2d 375). See also Tudor v. Am. Employers Ins. Co., 121 Ga. App. 240 (173 SE2d 403).

2. In the prior division of this opinion we dealt with the meaning of the word "relative” because the trial court’s judgment stated, "The sole question in the case is whether or not within the contemplation of the policy a stepson is to be considered as a relative of the named insured under this exclusion.” (R. 49). The briefs of both parties argued extensively on this point with citations from other jurisdictions (but none on all fours with the case at bar) on the interpretation of the word "relative.”

Examination of the record here presents other reasons for affirmance. "A judgment correct for any reason will not be reversed.” Cooper v. Cooper, 225 Ga. 462 (169 SE2d 324). Where, as here, the insured automobile is driven as a single isolated instance without the consent or permission, express or implied, of the insured, then the restrictive exclusion as contained in the policy under consideration does not apply. The affidavits of the insured, the insured’s spouse, and the insured’s aunt show the automobile was being operated at the time of the wreck by a party who had never lived with the insured as he had always lived apart from him and that the car was being driven without his permission or consent. In short, it was an isolated operation and thus comes within the holding of Buffington v. New Hampshire Fire Ins. Co., 104 Ga. App. 139 (121 SE2d 270) where this court held: "The endorsement on an automobile liability insurance policy that 'It is understood and agreed that there are no male drivers under 25 years of age driving this car,’ issued in consideration of a substantial reduction in premium, does not relieve the insurance company of liability as to damages caused by one isolated operation of the automobile by a male under the age of 25 years.” The clause of no coverage was intended by the parties to apply to regular usage, not to a single instance as here where the vehicle was used without the insured’s consent.

Argued January 8, 1973 Decided April 24, 1973. Jones, Cork, Miller & Benton, Carr G. Dodson, Rufus D. Sams, III, for appellant. Smith & Harrington, Will Ed Smith, for appellees.

3. Another reason for affirmance arises out of this being an automobile collision policy. Unless the insurer inserts special limitations in its contract, the coverage will extend to all losses caused by accidental collision. The insurer can in its policy effectively exclude coverage while the vehicle is being operated by a person under a certain age. However, this exclusion "would apply only in those instances where the person under that age has permission or authority to use the vehicle.” P. E. Ashton Co. v. Joyner, 17 Utah 2d 162, 165 (406 P2d 306). The undisputed evidence in this case is that the automobile was being operated at the time of the collision by a person without the knowledge, permission, or consent of the insured.

Judgment affirmed.

Hall, P. J., concurs in Division 3. Evans, J., concurs specially.