Yeomans & Associates Agency, Inc. v. Bowen Tree Surgeons, Inc.

*751ANDREWS, Presiding Judge,

dissenting.

Because, under the rules of construction pertaining to insurance contracts, I do not believe there is any way that Black’s wreck with the Cowarts was covered under the Commercial General Liability policy issued by Canal Indemnity Company (Canal) to Bowen Tree Surgeons, Inc. (Bowen Tree), I must respectfully dissent because the trial court improperly granted Bowen Tree’s motion for partial summary judgment on the coverage issue. Further, even if the policy could be said to provide coverage, Bowen Tree failed to prove that Yeomans & Associates, Inc. (Yeomans) was the agent of Canal for purposes of notice under the policy, and Canal was entitled to a directed verdict on this ground.

In addition to the facts set out in the majority opinion, the following facts are pertinent. Upon talking with Bertoch at Yeomans, George Bowen and Bertoch both were surprised that Bowen was sued, since Black was driving his personal car and was not on the job at the time of the accident. Bowen Tree had both the Canal policy and a company fleet motor vehicle policy through Auto-Owners Insurance Company. Following Bertoch’s submission of the lawsuit to Auto-Owners, which she believed was the only possibly applicable policy, Auto-Owners sent Yeomans and Bowen certified letters denying coverage. That letter advised George Bowen that, since his employee was driving his own car at the time of the accident, “there is no coverage under your business automobile policy[,]” and recommended that Bowen contact Black’s insurance carrier to see if it would provide a defense. If not, then Bowen would “need to have your own attorney file an answer to protect your interest.”

Bowen did not further contact Yeomans regarding this litigation, retain his own attorney, contact Black’s carrier, or attempt to contact Canal directly. Instead, Bowen allowed the Cowarts’ suit against Bowen Tree to go into default. After filing a motion to set aside the default judgment, Bowen and Bowen Tree then settled the Cowarts’ claim, withdrew the motion to set aside, and sued Yeomans and Canal. Canal was not notified of the settlement by Bowen Tree prior to the suit against Canal.

The Declarations page of the Canal policy lists as the “named insured” “Bowen Tree Surgeons, Inc.”

“Section I — Coverages” of the Canal policy provides:

1. Insuring Agreement a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any *752“suit”seeking damages for “bodily injury”or “property damage” to which this insurance does not apply. . . . b. This insurance applies to “bodily injury” and “property damage” only if: (1) The “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territory”; . . .

(Indention omitted; emphasis supplied.)

“Section II — Who is An Insured” provides:

1. If you are designated in the Declarations as: . . . d. An organization other than a partnership, joint venture, or limited liability company, you are an insured. Your “executive officers” and directors are insureds, but only with respect to their duties as your officers or directors. Your stockholders are also insureds, but only with respect to their liability as stockholders. 2. Each of the following is also an insured: a. Your employees, other than either your executive officers ... or your managers ... but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business.

(Indention omitted; emphasis supplied.)

“Section IV — Commercial General Liability Conditions” provides:

2. Duties In The Event of Occurrence, Offense, Claim Or Suit. a. You must see to it that we are notified as soon as practicable of an “occurrence” . . . which may result in a claim____b. If a claim is made or “suit” is brought against any insured, you must (1) Immediately record the specifics of the claim or “suit” and the date received; and (2) Notify us as soon as practicable. You must see to it that we receive written notice of the claim or “suit” as soon as practicable— d. No insured will, except at that insureds’ own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent.

(Indention omitted; emphasis supplied.)

George Bowen testified that, although Bowen Tree received a copy of the Canal policy, the secretary (his wife) or someone in the office would handle that, he only did outside field work.

Yeomans obtained the commercial general liability policy for Bowen Tree through its brokerage firm, the Strickland General *753Agency. Yeomans had no authority to bind coverage, but had “to bind it through Strickland who in turn issue [d] the policy.” Strickland had multiple wholesale lines of insurance to choose from and issued the Canal policy. Yeomans never had a copy of the Canal policy, only the Declarations page, but it was her understanding that the Canal policy only applied when the insured was “working on a job.”

On the day of Black’s collision with the Cowarts, George Bowen went to the accident scene. Because Black was driving his own vehicle and was not working, George Bowen did not contact Yeomans until after the Cowarts’ suit was served on him. He never contacted his workers’ compensation carrier “[bjecause the man wasn’t on my job. . . .” George Bowen stated unequivocally that he had never purchased any kind of insurance that would provide insurance to one of his employees involved in an accident driving his own car.

By its own very clear terms, as set out above, the Canal policy did not provide coverage for the Black/Cowart accident. That George Bowen did not become familiar with the terms of the policy is of no avail to him.

First, “that the insured was under a duty to examine its policy and ascertain for itself what coverage it had is well settled. The insured was not only free to examine the contract, it was under a duty to do so, and if it had done that it would have observed just what coverage it provided to it. If (the policy) was not what it wished to have it could have renegotiated . . . or . . . returned it as unacceptable and negotiated a contract with another company.... If the policy issued was essentially different from the one that the insured desired, the remedy . . . would have been to reject, when tendered, the policy as written. ... If the applicant neglects to examine the policy delivered to it the contract is binding.” (Citation and punctuation omitted.) Savannah Laundry &c. Co. v. Home Ins. Co., 189 Ga. App. 420, 422-423 (2) (376 SE2d 373) (1988); see also Hartford [Ins. Co. &c. v. Franklin, 206 Ga. App. 193 (424 SE2d 803) (1992)].

Kirby v. Northwestern Nat. Cas. Co., 213 Ga. App. 673, 676 (2) (445 SE2d 791) (1994). See also MacIntyre & Edwards, Inc. v. Rich, 267 Ga. App. 78, 79 (1) (599 SE2d 15) (2004).

I believe that Canal is correct that the trial court erred in granting Bowen Tree’s motion for summary judgment on the issue of coverage.

Also, even assuming arguable coverage under the Canal policy, Bowen Tree failed to provide the required notice to Canal; failed to *754prove that Yeomans was acting as a dual agent of Canal and Bowen Tree; and breached the Canal policy by settling the Cowarts’ suit without Canal’s knowledge.

Independent agents or brokers are generally considered the agent of the insured, not the insurer. Kirby, supra at 676 (2); European Bakers v. Holman, 177 Ga. App. 172, 173 (2) (338 SE2d 702) (1985). In the present case, I believe that the evidence demanded the conclusion that Yeomans was acting as an agent for Bowen Tree and George Bowen, not for Canal. According to Bertoch’s testimony, in addition to that set out above, Yeomans was an independent insurance agency which represented several insurance companies and had direct contracts with a number of automobile insurance carriers. Yeomans had no contract with Canal and nothing in writing from Canal authorizing Yeomans to accept claims or handle lawsuits on Canal’s behalf. Yeomans obtained Canal coverage only by using the Strickland General Agency, with whom Yeomans had a written contract. The Yeomans/Strickland contract specifically states that Yeomans “will represent and act as agent for my insureds only in all dealings with SGA and have absolutely no agency or binding authority on business transacted with SGA for any insurer(s) represented by SGA unless otherwise agreed in writing.” (Emphasis supplied.)

When handling claims for Bowen Tree under the Canal policy, Yeomans would send the claim to Strickland, not Canal. Bertoch stated that Yeomans had no agency relationship with Canal, that any filing or sending of claims for Bowen Tree was done solely as an accommodation to Bowen Tree and George Bowen, and that Bowen Tree’s checks for insurance premiums were made payable to Yeomans, which took its commission and forwarded Canal’s premium portion to Strickland.

“ ‘In order to impose liability pursuant to the doctrine of apparent or ostensible agency, the evidence must show: (1) the apparent principal represented or held out the apparent agent; and (2) justifiable reliance upon the representation led to the injury.’ Whitaker v. Zirkle, 188 Ga. App. 706, 709 (2) (374 SE2d 106) (1988).” Kirby, supra at 678 (2). There has been no showing by Bowen Tree that Yeomans functioned as both agent for the insured and the insurer. Compare Byrne v. Reardon, 196 Ga. App. 735, 736 (4) (397 SE2d 22) (1990).

Therefore, I believe Canal was entitled to a directed verdict on this ground. Southeastern Express Systems v. Southern Guaranty Ins. Co. of Ga., 224 Ga. App. 697, 700-701 (482 SE2d 433) (1997); see Park Pride Atlanta v. City of Atlanta, 246 Ga. App. 689, 694-695 (541 SE2d 687) (2000).

I am authorized to state that Presiding Judge Johnson joins in this dissent.