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SOUTHEASTERN FIDELITY INSURANCE COMPANY v. McDONALD et al.
46771.
Action on insurance policy. DeKalb Superior Court. Before Judge Dean.
QUILLIAN, Judge.
Where an insurance policy is fairly susceptible of two or more different but sensible and reasonable constructions, the one will be adopted which, if consistent with the objects of the insurance, is most favorable to the insured.
The facts as stated in the appellant's brief were as follows: "For the sake of clarity and convenience, the parties will be referred to hereinafter as follows: the appellant, Southeastern Fidelity Insurance Company, will be referred to as 'appellant,' the appellees, Gloria Parks McDonald, Shirley Joyce Etheridge, Mack Wilson Etheridge, Linda Susan Etheridge, Deborah Jean Etheridge, and Karen Elaine Etheridge, will be referred to collectively as 'appellees,' or separately as 'appellee McDonald' and 'appellees Etheridge.'
"This case is before this court on a notice of appeal filed on September 17, 1971, from an order dated September 2, 1971, for granting the motion for summary judgment of the appellees, and denying the motion for summary judgment of the appellant, within the time provided by law.
"On or about September 12, 1970, at approximately 5 p.m., appellee McDonald was involved in an automobile accident at the intersection of Georgia Highway No. 85 and Thames Road in Clayton County, Georgia. At the time of said accident, appellee McDonald was driving a 1968 Ford Fairlane automobile owned by her brother, Ronnie Anthony Parks. She was driving said automobile with her brother's permission. As a result of this accident, suit was filed against appellee McDonald by the appellees Etheridge in the Superior Court of DeKalb County (Civil Action File No. 58,974). An answer was filed on appellee McDonald's behalf by her personal attorney and also by appellant's attorneys under a reservation of rights letter.
"At the time of the above-mentioned accident, insurance policy number C039737 issued by the appellant to Ronnie Anthony Parks, brother of appellee McDonald, affording automobile liability coverage, was in full force and effect. Said insurance policy contains the following restrictive provisIon:
" 'When indicated by number under Item 8 of the declaration page, the restrictive provision(s) shown below is made a part of this policy: In consideration of the premium charged and by acceptance of this policy by the insured, it is agreed no insurance is afforded, for any claim arising from any accident involving the described vehicle(s), or any other vehicle. EC-3(ai)-Named Underage Operator: Unless named below while being used, driven, operated or manipulated by or under the care, custody, or control of any operator under the age of twenty-five (25) who (a) lives, resides, or is domiciled in the household of the insured or; (b) who is employed as a chauffeur or who is otherwise driving, operating or manipulating a vehicle for compensation. The provisions of this endorsement supersede and exclude from the policy any contrary provision(s). This endorsement is attached to the policy when issued and shall take effect simultaneously with said policy.'
"The existence of this item is clearly pointed out in red capital letters by Item 8 of the declarations page contained in Part B of the policy and is clearly made a part of said policy.
"At the time of the accident in question, appellee McDonald was eighteen (18) years of age and lived at number 8 Glenn Street, Newnan, Georgia. This house was owned by her father, James W. Parks. Also living at this address at the time in question were appellee McDonald's mother and her brother, Ronnie Anthony Parks. Appellee McDonald had lived at this address since August 8, 1970. At that time she was separated from her husband. Both appellee McDonald and her brother left the above-mentioned address shortly after the accident.
"On March 1, 1971, appellant filed a complaint for declaratory judgment in the Superior Court of DeKalb County alleging basically the facts which have been stated above including the above-quoted policy provisions, and that in view of these facts and the exclusionary provision of the policy there was an actual controversy to be determined by the Superior Court of DeKalb County as to the question of whether or not appellee McDonald was and is covered by the insurance policy issued by the appellant to the brother of appellee McDonald.
"The appellees filed appropriate answers to the complaint for declaratory judgment contending that appellee McDonald was covered by the insurance policy in question, and in addition appellee McDonald filed a counterclaim seeking to recover attorney's fees incurred by her in connection with the suit filed against her by the appellees Etheridge and in the above-mentioned action for declaratory judgment.
"Appellees then filed a motion for summary judgment in the Superior Court of DeKalb County, based on the pleadings on file in the case, answers to interrogatories, responses to request for admissions of fact and various affidavits. Appellees contended that there was no genuine issue of material fact respecting the action of appellant against the appellees and respecting the issue of liability in the counterclaim of appellee McDonald, and that appellees were entitled to a judgment as a matter of law leaving only the issue of damages in the counterclaim for determination by a jury.
"Appellant then filed a motion for summary judgment on June 30, 1971, in the Superior Court of DeKalb County and moved that the court rule that the liability insurance coverage afforded by the appellant was not in effect so as to afford coverage to appellee McDonald with respect to the damages sought against her by the appellees Etheridge in the suit filed by them in the Superior Court of DeKalb County. Appellant's motion was based on the pleadings on file in the case, a certified copy of the insurance policy issued by appellant to Ronnie Anthony Parks and appellee McDonald's answers to interrogatories.
"The lower court sustained the appellees' motion for summary judgment respecting the action brought against them by the appellant and denied the appellant's motion for summary judgment. In addition the court denied appellee McDonald's motion for summary judgment on her counterclaim seeking damages. Finally, the court ordered that the denial of appellant's motion for summary judgment be certified for review by direct appeal. Appellant hereby appeals the granting of appellees' motion for summary judgment and the denial of its motion for summary judgment."
means a household of which the insured is the head and therefore in the present case both Parks and appellee McDonald were in fact living in the household of their father.
Both constructions of the policy provisions are logical and reasonable. However, "Where an insurance policy is fairly susceptible of two or more different but sensible and reasonable constructions, the one will be adopted which, if consistent with the objects of the insurance, is most favorable to the insured. 'In other words a contract of insurance couched in language chosen by the insurer is, if open to construction contended for by the insured, to be construed most strongly, or strictly, against the insurer and liberally in favor of the contention of the insured.' " Fokes v. Interstate Life &c. Ins. Co., 59 Ga. App. 680 (2 SE2d 170).
Had the insurance company meant for the provisions to exclude any person under 25 who was living in the same household as the insured it could have so stated in the policy.
Judgment affirmed. Hall, P. J., and Pannell, J., concur.
Rich, Bass, Kidd & Broome, Robert J. NeSmith, Long, Weinberg, Ansley & Wheeler, John E. Talmadge, for appellees.
Swift, Currie, McGhee & Hiers, Warner S. Currie, Victor A. Cavanaugh, for appellant.
ARGUED JANUARY 7, 1972 -- DECIDED JANUARY 28, 1972.
Friday May 22 15:14 EDT


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