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Johnson v. Pennington Ins. Agency

Court of Appeals of Georgia
Nov 16, 1978
148 Ga. App. 147 (Ga. Ct. App. 1978)

Summary

reversing grant of summary judgment to defendant where issues of fact remained as to defendant’s status as plaintiff’s agent in acquiring insurance

Summary of this case from Bush v. AG S. Farm Credit

Opinion

56466.

SUBMITTED SEPTEMBER 12, 1978.

DECIDED NOVEMBER 16, 1978.

Action on insurance policy. Whitfield Superior Court. Before Judge Temples.

Cook Palmour, Bobby Lee Cook, A. Cecil Palmour, for appellant.

Rogers, Magruder Hoyt, Edward Hine, Jr., for appellee.


We reverse the trial court's grant of appellee's motion for summary judgment.

The following view of the evidence is in a light favorable to appellant, the opponent to the motion for summary judgment. At the time of the occurrence of the events leading to appellant's commencement of this suit, appellee represented eight insurance companies on an "in-house" basis and Lloyd's of London, among others, on an "out-of-house" basis. Appellant approached appellee's agent, Pace, for the purpose of procuring insurance on a particular building and its contents. Appellant alone owned the building, and appellant and her husband, who were together doing business as Allen Cone Company, jointly owned the contents. Pace, never having ascertained the legal owners of the building and its contents, sent a letter to appellant and her husband indicating, in a handwritten notation in the margin, that coverage was "bound" as of 10:00 a. m. on February 23, 1976. The amounts of coverage stipulated in the letter were $10,000 on the building and $10,000 on its contents. The building and its contents were destroyed by fire on March 29, 1976. The insurance policy Pace had secured for appellant arrived by mail after the fire. In the policy the insurer, Lloyd's of London, insured the building and its contents for the amounts stipulated in the binder, but the appellant's husband alone was listed as the insured. Appellant's husband, having no insurable interest in the building and one-half of its contents, could not recover from Lloyd's for their destruction. Appellant's suit alleged that appellee's employee's negligence in failing to ascertain the facts as to ownership of the property and in failing to procure coverage for her property had damaged her in the amount of $15,000.

1. Appellee contends the issue of agency is not before us since it was not alleged in the complaint or raised in argument below. We find, however, that the evidence introduced on the motion for summary judgment did raise as an issue the supposed status of appellee as appellant's agent in acquiring insurance. Therefore, the agency issue is before us. Chastain v. Simmons, 142 Ga. App. 615 ( 236 S.E.2d 678) (1977). Cf. Gerald v. Ameron Automotive Centers, 145 Ga. App. 200 ( 243 S.E.2d 565) (1978). Furthermore, the facts suggesting that appellee was an independent insurance agency which placed insurance with several insurers and which undertook to secure insurance coverage for appellant, and appellee having introduced no evidence conclusively showing that it was not appellant's agent, we conclude that issues of fact remain as to the parties' relationship. Beavers Ins. Agency v. Roland, 135 Ga. App. 263 ( 217 S.E.2d 484) (1975); Wright Body Works v. Columbus Interstate Ins. Agency, 233 Ga. 268 ( 210 S.E.2d 801) (1974); Sheppard v. Post, 142 Ga. App. 646 ( 236 S.E.2d 680) (1977).

2. We also hold that an issue of fact remains as to whether appellee's employee's alleged failure to ascertain the facts pertaining to the property's ownership and his failure to procure insurance for appellant constituted a breach of fiduciary duty. "An agent who negligently fails to procure insurance for his principal is liable to the principal for any resulting loss." Wright Body Works, supra, p. 270. See Beiter v. Decatur Federal c. Assn., 222 Ga. 516 (2) ( 150 S.E.2d 687) (1966) and Beavers Ins. Agency, supra.

Judgment reversed. Deen, P. J., and Banke, J., concur.

SUBMITTED SEPTEMBER 12, 1978 — DECIDED NOVEMBER 16, 1978.


Summaries of

Johnson v. Pennington Ins. Agency

Court of Appeals of Georgia
Nov 16, 1978
148 Ga. App. 147 (Ga. Ct. App. 1978)

reversing grant of summary judgment to defendant where issues of fact remained as to defendant’s status as plaintiff’s agent in acquiring insurance

Summary of this case from Bush v. AG S. Farm Credit

stating that the duty to procure insurance coverage is a fiduciary duty that an insurance agent owes its principal

Summary of this case from Pepper v. Prime Rate Premium Fin. Corp.
Case details for

Johnson v. Pennington Ins. Agency

Case Details

Full title:JOHNSON v. PENNINGTON INSURANCE AGENCY, INC

Court:Court of Appeals of Georgia

Date published: Nov 16, 1978

Citations

148 Ga. App. 147 (Ga. Ct. App. 1978)
251 S.E.2d 116

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