Opinion
43809, 43810.
SUBMITTED JULY 2, 1968.
DECIDED SEPTEMBER 26, 1968. REHEARING DENIED NOVEMBER 14, 1968.
Declaratory judgment. Douglas Superior Court. Before Judge Winn.
Woodruff, Savell, Lane Williams, A. Ed Lane, for Penna. Millers.
Long, Weinberg Ansley, Ben L. Weinberg, Jr., John K. Dunlap, for Employers' Fire.
Jean E. Johnson, for Kovacs.
James R. Dollar, Jr., Robert J. Noland, for Douglas County Federal.
1. The trial judge did not err in finding that there was no cancellation, as to the mortgagee, of a fire insurance policy containing a standard mortgagee clause where there was evidence that the mortgagee neither consented to, nor had notice of, the cancellation within the purview of Code Ann. § 56-2430.
2. Insofar as the enumerations of error might raise the question of the correctness of the trial judge's method of apportioning liability, such grounds are treated as abandoned since they are not supported by argument or citation of authority in the appellant's brief. Rule 17 (c) (2); Lowrance v. Bank of LaFayette, 115 Ga. App. 788 (1) ( 156 S.E.2d 158).
3. Since the main appeal is affirmed and a ruling on the cross appeal would be of no benefit to the cross appellant, the cross appeal is dismissed.
SUBMITTED JULY 2, 1968 — DECIDED SEPTEMBER 26, 1968 — REHEARING DENIED NOVEMBER 14, 1968.
Pennsylvania Millers Mutual Insurance Company (hereinafter referred to as Pennsylvania Millers) brought a suit for declaratory judgment in Douglas Superior Court against the Employers' Fire Insurance Company (hereinafter referred to as Employers), Eugene J. Kovacs, Douglas County Federal Savings Loan Association (hereinafter referred to as Douglas Federal) and Cecil G. Thompson. The claim sought a determination as to whether Pennsylvania Millers was liable for a fire loss to certain described property under the terms of an insurance policy with Kovacs. The allegations were: that Pennsylvania Millers issued a policy providing fire coverage in the amount of $10,000 on a frame residence on certain property in Paulding County, Georgia, the policy to run from December 7, 1963, to December 7, 1966; that Douglas Federal was named in the policy as first mortgagee; that on September 3, 1965, Kovacs and Thompson entered into an agreement to trade Kovacs' house and lot for similar property owned by Thompson in Lithia Springs, Georgia; that pursuant to this, on November 7, 1965, Kovacs moved from the residence insured by Pennsylvania Millers and on December 2, 1965, Kovacs and Thompson closed the sale of Thompson's property.
The petition further alleged that from that time until January defendant Thompson entered and began making improvements on the property in Paulding County; that Kovacs requested cancellation under the policy with Pennsylvania Millers but through inadvertence the policy had not been formally canceled on the date of loss; that Thompson contacted a Mr. Willie Yates of Douglas Federal, advised him that there had been no insurance on the Paulding County property since December 7, 1965, and requested that Mr. Yates obtain insurance on that property; that Employers issued a policy of insurance on that property as of January 28, 1966, in the amount of $10,500; that on the night of February 2 or the morning of February 3, 1966, the house located on the Paulding County property burned.
The petition also alleged that the policy with Employers provided: "Subject to the provisions of the mortgage clause attached hereto, loss, if any, on building items, shall be payable to: Douglas County Federal Savings and Loan Association."
When this case was before this court in Employers' Fire Ins. Co. v. Pennsylvania Millers c. Co., 116 Ga. App. 433 (3) ( 157 S.E.2d 807), the Court of Appeals held: "The unilateral act of an insured-mortgagor in requesting cancellation of a fire insurance policy containing a standard mortgagee clause, without the consent of, or notice to, the named mortgagee, does not effect a cancellation of the policy as to the mortgagee." Pennsylvania Millers urged that under the allegations of the petition Thompson had contacted W. W. Yates of Douglas Federal regarding the absence of insurance and that under these circumstances Douglas Federal had actual knowledge of the cancellation of Pennsylvania Millers' policy, obviating the necessity for statutory notice. However, assuming that actual notice would be equivalent to the required statutory notice, the opinion pointed out that there was no actual notice to Douglas Federal since the petition failed to allege that W. W. Yates was an agent of Douglas Federal. In an attempt to remedy this, the plaintiff amended the petition to allege that W. W. Yates was an agent and employee of Douglas Federal and was acting within the scope of his agency and in connection with the business of Douglas Federal when he was contacted by Thompson and in obtaining the policy with Employers.
On the hearing of the case sub judice, the testimony of W. W. Yates was to the effect that he was an agent and employee of Douglas Federal. He testified that Thompson inquired of him whether there was insurance on the property and that he, upon checking the records, thought that there was none. However, he explained that he misread the date and thought the policy with Pennsylvania Millers expired December 7, 1965, instead of on the actual expiration date, December 7, 1966. For this reason he obtained insurance with Employers. The witness admitted that he was "familiar in general terms with the swap or transfer of the property between Mr. Kovacs and Mr. Thompson," stating that Thompson discussed it with him. However, he testified that neither he nor Douglas Federal had received any notice of cancellation of the policy by Pennsylvania Millers prior to the loss.
The trial judge entered a judgment in which he found that there had been no effective cancellation of the policy issued by Pennsylvania Millers to Kovacs as to Douglas Federal and that Pennsylvania Millers was liable under that policy to Douglas Federal. Based on this he apportioned the loss from the fire of February 3, 1966, between Pennsylvania Millers and Employers.
1. Pennsylvania Millers contends that the evidence showed that Douglas Federal had received actual notice of its intent to cancel so as to obviate the necessity of written notice required under Code Ann. §§ 56-2430 (Ga. L. 1960, pp. 289, 671; 1967, p. 653) and 56-2430.1 (Ga. L. 1964, p. 335); that the evidence also established that Willie Yates when he received such information was acting as an agent of Douglas Federal and within the scope of his employment. Thus, it is contended by Pennsylvania Millers that the ruling upon the former appearance of this case is not controlling here and that instead judgment should have been rendered in its favor.
Code Ann. § 56-2430 provides: "Notices of cancellation of policies protecting the interest of the insured and any lienholder shall be delivered or mailed to the last addresses of record as provided herein to the insured and to the lienholders shown in the policy and shall specify when, not less than 10 days or such longer period as may be provided in the contract or by the statute, the cancellation shall become effective." (Emphasis supplied.) According to the record Thompson communicated with Yates on January 28, 1966, and the loss occurred on the night of February 2 or the morning of February 3, 1966. Therefore, even if this be considered as equivalent to a written notice of cancellation under the provisions of the Code section, such cancellation would not have been effective until at least February 7, 1966, four days after the loss occurred. Since written notice of the cancellation would not have been effective prior to the occurrence of the loss, any actual notice could not have accomplished a prior cancellation and Pennsylvania Millers' policy was still in effect at the time of the loss.
Moreover, the evidence shows that Yates as agent for Douglas Federal was not informed of any cancellation of that policy but, as he explained it, acted under a misapprehension as to the termination date of the policy when he procured new insurance on the property. We also point out that even assuming that Douglas Federal might have consented to an earlier cancellation than the 10 days required by statute, there is no evidence to that effect. Thus, there being a showing that no notice of cancellation was given to Douglas Federal within the purview of Code Ann. § 56-2430, the ruling when the case was previously in this court is controlling here. Employers' Fire Ins. Co. v. Pennsylvania Millers c. Co., 116 Ga. App. 433, supra.
The judgment was not error for the reasons assigned.
2. The second headnote requires no elaboration.
3. Employers filed a cross appeal from an order overruling its objections and the amplification of objections to an amendment to the petition for declaratory judgment and from an order overruling its objections to plaintiff's request for admission of facts. Since the main appeal is affirmed and a ruling on the cross appeal would be of no benefit to the cross appellant, the cross appeal is dismissed.
Judgment on main appeal affirmed. Cross appeal dismissed. Bell, P. J., and Hall, J., concur.
ON MOTION FOR REHEARING.
When this case was previously before the court, it was held: "The remaining question is whether Kovacs' request for cancellation of the Pennsylvania Millers' policy effectively canceled it as to the mortgagee, Douglas County Federal. If not, then Pennsylvania Millers' policy was in force as to the mortgagee, and proration of the loss to the extent of the indebtedness (up to $10,000, the stipulated amount of the loss) would be in order." Employers' Fire Ins. Co. v. Pennsylvania Millers, 116 Ga. App. 433, 435 ( 157 S.E.2d 807). The court found that: "Since an independent contract of insurance engrafted upon the main insurance contract existed for the benefit of the mortgagee, Douglas County Federal, the unilateral act of Kovacs in requesting a cancellation of the policy without its consent and without written notice as provided for by various other policy provisions could not effect cancellation of Pennsylvania Millers' policy as to the mortgagee." Employers' Fire Ins. v. Pennsylvania Millers c. Co., 116 Ga. App. 433, 437, supra.
In support of the position this court noted that the Insurance Code ( Code Ann. §§ 56-2430 (Ga. L. 1960, pp. 289, 671; 1967, p. 653) and 56-2430.1 (Ga. L. 1964, p. 335)) requires written notice to effect the cancellation of a policy which protects the interest of the lienholder.
It is thus apparent that the question of the application of the cited Code section was determined adversely to the contentions of movant in the prior decision of this case.
Rehearing denied.