Brown v. Peninsular Fire Insurance

Carley, Judge.

Appellant-insured instituted a declaratory judgment action against appellee-insurer to determine whether he was entitled to certain liability coverage pursuant to his homeowner’s insurance policy. After a bench trial, the trial court ruled that, under the particular circumstances of the case, a “business pursuits” exclusion contained in the policy precluded coverage. On appeal, appellant asserts that the trial court erred in its construction of the “business pursuits” exclusion.

The facts as found by the trial court are not in dispute. Appellant is a real estate broker. Although he is not a real estate developer, he has on several occasions purchased and commercially developed vacant land. The property involved in the instant lawsuit was purchased by appellant and another person for investment or development purposes. The incident giving rise to appellant’s claim of coverage under his homeowner’s policy occurred when an employee of a contracting company hired by appellant to grade the subject property ruptured an allegedly unmarked fuel pipeline with a bulldozer owned by the contracting company. The contracting company sued appellant, among others, to recover for the damage to its bulldozer. Appellee denied coverage of the claim on the basis of the following exclusion contained in appellant’s homeowner’s policy: “Personal liability [coverage does] . . . not apply to bodily injury or property damage:. . . b. *508arising out of business pursuits of any insured or the rental or holding for rental of any part of any premises by any insured. This exclusion does not apply to: (1) activities which are ordinarily incident to non-business pursuits.” The trial court ruled that the improvement by grading was a business pursuit of appellant, so that the incident fell within the above-mentioned exclusion.

“ ‘Insurance is a matter of contract, and the language used is to be accorded its general and ordinary meaning, bearing in mind that the contract is to be construed in accordance with the intention and understanding of the parties, and, in construing it, the court can go no further than a fair construction of the language used will permit.’ [Cit.] ‘ “[I]t is the understanding of the average policyholder which is to be accepted as a court’s guide to the meaning of words, with the help of the established rule that ambiguities and uncertainties are to be resolved against the insurance company.” [Cit.]’ [Cit.] Interpretation of the provisions of a plain and definite policy of insurance is a matter of law for the courts, and a policy ‘is not ambiguous even though presenting a question of construction, unless and until an application of the pertinent rules of construction leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties.’ [Cit.]” Guest v. Horace Mann Ins. Co., 168 Ga. App. 714, 715 (310 SE2d 241) (1983). “ ‘It is the function of the court to construe the contract as written and not to make a new contract for the parties [Cit.] .... An unambiguous contract will be construed to carry out the literal intent of the parties.’ [Cit.]” Dixon v. Midland Ins. Co., 168 Ga. App. 319, 322 (309 SE2d 147) (1983).

The policy at issue in the instant case does not define the term “business pursuits.” However, it does provide that “ ‘business’ includes trade, profession or occupation.” “ ‘Contracts of insurance, like other con tracts [,] are to be construed according to the sense and meaning of the terms which the parties have used, and if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary and popular sense. [Cit.]’ [Cits.] Dictionaries supply the ‘plain, ordinary, and popular sense.’ ” Southern Guaranty Ins. Co. v. Duncan, 131 Ga. App. 761, 764 (206 SE2d 672) (1974). Webster’s New International Dictionary (3d ed.) provides these definitions: “Trade” is “the business one practices or the work in which one engages regularly.” “Profession” is “a principal calling, vocation, or employment.” “Occupation” means “the principal business of one’s life.” “Business is defined in part as follows: “. . . b: (1): a usual commercial or mercantile activity customarily engaged in as a means of livelihood and typically involving some independence of judgment and power of decision . . . (2): a commercial or industrial enterprise . . . d: a particular field of endeavor . . . (4): transactions, dealings or intercourse of any nature . . . but now especially economic . . . .”

*509Decided June 18, 1984 Rehearing denied July 10, 1984 Jesse W. Walters, for appellant. Donald D. Rentz, John F. Salter, Mark A. Gonnerman, James V. Davis, for appellee.

In Southern Guaranty Ins. Co. v. Duncan, supra, this court considered a “business pursuits” issue in the context of a policy exclusion which was equivalent to the one involved in the case at bar. In Duncan, an automobile mechanic engaged part-time in automobile racing activities. The mechanic occasionally won racing prize money, and he sometimes hired other drivers to race his vehicles for him. We held that his racing activities did not constitute a business pursuit within the policy exclusion. Similarly, in the case at bar, the grading and developing of the subject property did not comprise a business pursuit of appellant. He was not “customarily engaged in” property development as his “usual commercial or mercantile activity.” Appellant’s grading of real property held for investment was no more a business pursuit of appellant as a real estate salesman than participating in automobile races for money was for a mechanic. Moreover, in the case at bar — even more than in Duncan — the policy language belies the ruling of the trial court. After the exclusion relating generally to “business pursuits of any insured,” the policy in this case specifically excludes claims arising out of “the rental or holding for rental of any part of any premises by any insured.” If it had been the objective of the “business pursuits” provision to exclude coverage relating to any property which may ultimately result in profit to the insured, it would not have been also necessary that “rental or holding for rental” be specifically excluded.

The construction of a plain and definite contract of insurance is a matter of law for the court. Kessler v. Ga. Intl. Life Ins. Co., 165 Ga. App. 60 (299 SE2d 131) (1983). The provision at issue herein has previously received a judicial construction.

We find that Southern Guaranty Ins. Co. v. Duncan, supra, is dispositive, and that the trial court erred as a matter of law in construing the “business pursuits” exclusion of the policy. Accordingly, the judgment of the trial court is reversed.

Judgment reversed.

McMurray, C. J., Deen, P. J., Banke, P. J., and Benham, J., concur. Quillian, P. J., Birdsong, Sognier and Pope, JJ., dissent.