Continental Insurance v. Gazaway

Smith, Judge.

Continental Insurance Company appeals from the judgment of the Probate Court of Gwinnett County finding it liable under a guardianship bond.

The record reveals that the bond at issue, in the amount of $52,000, was filed in the probate court by Jeannie Garner Gazaway, the duly appointed guardian of the person and property of Charlie Junior Gazaway. The bond named Continental Insurance Company as surety, and it was issued by George G. Robinson as attorney-in-fact for Continental. However, Continental never received a premium from Robinson for the bond. Robinson’s authority to write bonds for Continental had been revoked more than two months before this bond was issued. The power of attorney attached to the bond authorized Robinson’s execution of surety bonds on behalf of Transamerica *126Insurance Company. Continental is not an affiliate, subsidiary, or parent of Transamerica. Nevertheless, the bond was accepted by the deputy clerk of the probate court.

Robinson died prior to the initiation of this probate court case. Thereafter, the guardian’s attorney filed a petition to withdraw as counsel, alleging Gazaway had plundered the ward’s estate and requesting that the probate court inquire into the matter. Gazaway was removed as guardian, and a show cause order issued requiring Gaza-way to settle her accounts. Continental was served based upon its denial of liability on the bond. After a hearing, the probate court found Gazaway had wasted the entire estate of her ward, in the amount of $90,184.17, without benefit to the ward. The court'found that Robinson had lawfully issued a bond backed by Continental and that Continental and Gazaway were jointly and severally liable for the $52,000 covered by the bond. An additional judgment for $37,969.17 was entered against Gazaway.

In this appeal, Continental contends the probate court erred in holding it liable on the bond. We agree and reverse. It is undisputed that Robinson issued the bond as attorney-in-fact for Continental. One signing as attorney-in-fact does not purport to be a general agent of the corporation. The term “primarily denotes that all the authority the person so signing possesses is contained in a written power of attorney.” Foley & Williams Mfg. Co. v. Bell & Harrell, 4 Ga. App. 447, 448-449 (2) (61 SE 856) (1908). The record shows without dispute that Robinson was given only a limited power of attorney. He therefore was, at best, a limited agent. Persons dealing with a limited agent have the duty to examine the agent’s authority. OCGA § 10-6-50; Addley v. Beizer, 205 Ga. App. 714, 716-717 (423 SE2d 398) (1992). The signature of Robinson as attorney-in-fact therefore placed the probate court clerk and the former guardian on notice that they must inspect the power of attorney before relying on Robinson’s authority to write the bond.

Because of the purpose of the agency, in this case another duty of inquiry arose. The statute of frauds requires that contracts to answer for the debts of another be in writing. OCGA § 13-5-30 (2). Bonds and other surety contracts are within the contemplation of this statute. See generally Jam Bonding Co. v. State of Ga., 179 Ga. App. 82, 83 (345 SE2d 87) (1986).1

The equal dignity rule, codified in OCGA § 10-6-2, provides that where the act to be performed by the agent must be executed with certain formalities, the creation of the agency must be executed with *127those same formalities. See, e.g., Spiegel v. Hays, 103 Ga. App. 293, 300 (3) (119 SE2d 123) (1961); Nalley v. Whitaker, 102 Ga. App. 230 (2) (115 SE2d 790) (1960). As a result, Robinson’s authority to issue the bond could not be mere apparent authority; his authority was required to be shown by a writing: a power of attorney from Continental. Although a power of attorney was attached to the bond in this case, that power was not from Continental but from Transamerica Insurance Company. It was therefore insufficient, and neither Gazaway nor the probate court was justified in relying on Robinson’s apparent authority.

The dissent seeks to hold Continental liable on the bond under a theory of apparent agency. However, to hold a principal liable under such a theory, the plaintiff must show that the principal held out the agent as its own through conduct which, reasonably interpreted, caused the plaintiff to believe the agent was authorized. Shivers v. Barton & Ludwig, Inc., 164 Ga. App. 490, 491 (296 SE2d 749) (1982). Reasonably interpreted, Continental’s conduct in this case did not authorize either the guardian or the probate court to conclude the bond was valid, and the lack of diligence on the part of both the guardian and the probate court precludes a showing of justifiable reliance.

Continental did nothing to knowingly cause or permit Robinson to act as its agent. Robinson was a limited agent and could write bonds only by virtue of a specific power of attorney from Continental. When his authority was revoked, Continental properly removed from Robinson’s possession the powers of attorney it had given him and destroyed them. Consequently, even under the Restatement 2d of Agency, § 130, Continental would not be liable.

Because Robinson was not authorized to write the bond on behalf of Continental, and neither the guardian nor the probate court clerk was justified in relying on his authority to write the bond, Continental is not liable under the bond. The probate court’s judgment must be reversed.

Judgment reversed.

Birdsong, P. J., Beasley, P. J., Andrews, Johnson and Ruffin, JJ., concur. Pope, C. J., McMurray, P. J., and Blackburn, J., dissent.

OCGA § 33-24-18 also specifies that insurance contracts are set forth in written instruments.