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MCMURRAY, Presiding Judge.
Action on policy. Miller Superior Court. Before Judge Bishop.
Pamela M. Haire and James E. Haire (plaintiffs) initiated this action on a homeowners' insurance policy issued by defendant Cotton States Mutual Insurance Company ("Cotton States"), alleging that they were the owners of the [residential] property insured[; that on] December 2, 1990, while said policy was in force and effect, said property was totally destroyed by fire[; . . . and that while] Defendant paid [$26,888.39] to mortgagees of said property, Defendant has failed to pay for Plaintiffs' loss . . . [in] the sum of $32,611.61 as provided for in said policy[.]" Cotton States answered and defended in part on the ground that "Plaintiff, James E. Haire, did not have a contract of insurance with the Defendant and Plaintiff, James E. Haire, is not an insured under the terms of the policy issued to [Plaintiff] Pamela M. Haire. . . ." By way of further response, Cotton States claimed that "Plaintiff, Pamela M. Haire, was not an owner of the property at the time of the loss, . . . and that Plaintiff, James E. Haire, did not have a policy of insurance on said property and was not an insured under the terms of [Cotton States'] policy."
The trial court granted Cotton States' motion for summary judgment as to plaintiff Pamela M. Haire but denied the motion as to plaintiff James E. Haire, concluding that the "record contains sufficient evidence for a jury to find an insurable interest in Plaintiff, JAMES E. HAIRE." Cotton States' application for interlocutory appeal from the partial denial of its motion for summary judgment was granted by this Court and this appeal followed. Held:
Cotton States contends the trial court erred in denying its motion as to plaintiff James E. Haire, arguing that there is no contract of insurance as to James E. Haire's interest in the property because the plaintiffs failed to obtain written consent to change the named insured on the policy from Pamela M. Haire to James E. Haire after their divorce.
" 'The insured may not unilaterally substitute another party to become insured excepting under the provisions of the contract, even if he wished to do so. The insured alone may sue on a policy of insurance. (Cits.) . . . [T]ransfer of the policy of insurance without the consent of the insurer voids the policy. (Cits.)' Langley v. Pacific Indem. Co., 135 Ga. App. 29, 31 (4) (217 SE2d 369) (1975)." Higdon v. Ga. Farm &c. Ins. Co., 204 Ga. App. 192, 194 (419 SE2d 80). In the case sub judice, it is undisputed that James E. Haire is not the named insured on the policy, nor is he any longer a relative in the household of the named insured. Plaintiffs admit that they did not scek the insurer's written consent to substitute James E. Haire as the named insured on the policy in accordance with the contractual provisions. Consequently, James E. Haire is not a beneficiary of this policy of insurance and may not sue on it. The fact that he has an insurable interest in the realty specified in the policy is a necessary precondition to recovery under any policy of insurance but is not in itself sufficient to authorize a recovery under this specific policy. In this regard, the trial court misapprehended the pertinent inquiry and erred in denying Cotton States' motion for summary judgment as to plaintiff James E. Haire. Plaintiff's reliance upon Republic Ins. Co. v. Martin, 182 Ga. App. 390 (1), supra, is misplaced. That case is not binding precedent but is physical precedent only. Georgia Court of Appeals Rule 35 (b). Moreover, in Martin, an effort was made to direct the insurer "to endorse the fire insurance policy on the property to reflect [the assignee ex-spouse] as the named insured 182 Ga. App. 390 (1), 391, supra. That attempt in Martin to change the named insured in compliance with the contractual requirements is sufficient to distinguish that case from the case sub judice.
Frank T. Bell, for appellees.
Bowles & Bowles, Jesse G. Bowles III, for appellant.
Thursday May 21 06:24 EDT

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