(Footnote omitted.) Ga. Farm Bureau Mut. Ins. Co. v. Huncke, 240 Ga. App. 580, 580-581 ( 524 SE2d 302) (1999). Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.
(Footnote omitted.) Ga. Farm c. Ins. Co. v. Huncke, 240 Ga. App. 580, 580-581 ( 524 S.E.2d 302) (1999) Nevertheless, "[i]f the terms of the contract are plain and unambiguous, the contract must be enforced as written."
Thus, the contract should be construed to mean what a reasonable person in the insured's position would understand the terms to mean. Ga. Farm Bureau Mut. Ins. Co. v. Huncke, 240 Ga. App. 580, 581 ( 524 S.E.2d 302) (1999). This means that the contract must be construed in accordance with the reasonable expectations of the insured.
In contrast, if the policy is ambiguous, the court must construe the policy to mean what a reasonable person in the insured's position would understand the terms to mean. Ga. Farm Bureau Mut. Ins. Co. v. Hunke, 240 Ga. App. 580, 524 S.E.2d 302, 303 (Ga. Ct. App. 1999). "The contract is to be construed as a whole and each provision is to be given effect and interpreted so as to harmonize with the others."
However, if a term is ambiguous it must be construed against the insurer, as the drafter, and in favor of the insured. See Georgia Baptist Children's Homes Fam. Ministries v. Essex Ins. Co., 207 Ga.App. 346, 427 S.E.2d 798, 801 (1993); Georgia Farm Bureau Mut. Ins. Co. v. Huncke, 240 Ga.App. 580, 524 S.E.2d 302, 303 (1999). Words of an insurance contract must be given their usual, ordinary, and common meaning.
See Harris v. Carolina Life Ins. Co., 233 So. 2d 833, 834 (Fla. 1970). Flores v. Allstate Ins. Co., 819 So. 2d 740, 750 (Fla. 2002); Colony Ins. Co. v. Nicholson, No. 10-60042-CIV, 2010 WL 3522138, at *3 (S.D. Fla. Sept. 8, 2010) (quoting Ga. Farm Bureau Mut. Ins. Co. v. Huncke, 240 Ga. App. 580, 524 S.E.2d 302 (Ga. Ct. App. 1999) ("The policy should be read as a layman would read it and not as it might be analyzed by an insurance expert or an attorney.")). The Court finds this to be a standard principle of contract interpretation that applies in the state of Florida.
(Pl. Resp. at 21) (citing Ga. Farm Bureau Mut. Ins. Co. v. Huncke , 240 Ga.App. 580, 524 S.E.2d 302 (1999) ). But the Court cannot apply the rules of construction, such as construing the contract against the insurer as drafter, absent ambiguity in the policy.
However, if a term is ambiguous it must be construed against the insurer, as the drafter, and in favor of the insured.” Am. Cas. Co. of Reading, Pa. v. Etowah Bank, 288 F.3d 1282, 1285 (11th Cir.2002) (citing Richards v. Hanover Ins. Co., 250 Ga. 613, 299 S.E.2d 561, 563 (1983); Ga. Farm Bureau Mut. Ins. Co. v. Huncke, 240 Ga.App. 580, 524 S.E.2d 302, 303 (1999); Ga. Baptist Children's Homes & Family Ministries v. Essex Ins. Co., 207 Ga.App. 346, 427 S.E.2d 798, 801 (1993)). Neither the Georgia appellate courts nor the Eleventh Circuit recognizes an exception to this general principle for bank insurance bonds.
" "`In construing an insurance policy, the test is not what the insurer intended its words to mean, but what a reasonable person in the position of the insured would understand them to mean.'" Harkins v. Progressive Gulf Ins. Co., 262 Ga.App. 559, 560, 586 S.E.2d 1, 2 (2003) (quoting Ga. Farm Bureau Mut. Ins. Co. v. Huncke, 240 Ga.App. 580, 580-81, 524 S.E.2d 302, 303 (1999)). Here, there is at least a genuine issue of material fact as to whether Plaintiff suffered from an emotional or mental disorder in October of 2004. While the records show that Plaintiff did regularly take medication normally prescribed for stress, anxiety and depression, Plaintiff's physician stated that he had never diagnosed Plaintiff with an emotional or mental disorder and he was only treating Plaintiff for temporary situational anxiety and normal grief reaction, which are not emotional or mental disorders.
Where a term is ambiguous, "it must be construed against the insurer, as the drafter, and in favor of the insured." Am. Cas. Co., 288 F.3d at 1285 ( citingGeorgia Baptist Children's Homes Fam. Ministries v. Essex Ins. Co., 207 Ga. App. 346, 427 S.E.2d 798, 801 (Ga.Ct.App. 1993); Georgia Farm Bureau Mut. Ins. Co. v. Huncke, 240 Ga. App. 580, 524 S.E.2d 302, 303 (Ga.Ct.App. 1999)). "Words of an insurance contract must be given their usual, ordinary, and common meaning."