Opinion
49589.
ARGUED SEPTEMBER 5, 1974.
DECIDED OCTOBER 10, 1974.
Action for damages. Fulton Civil Court. Before Judge Camp.
Levine, D'Alessio Cohn, Morton P. Levine, for appellant.
Scheer Elsner, Robert A. Elsner, for appellees.
Where a controverted factual issue exists the denial of summary judgment is proper. The party resisting the motion for summary judgment is given the benefit of all inferences that may be drawn from the evidence. Butler v. Moore, 125 Ga. App. 435 ( 188 S.E.2d 142). The evidence of the plaintiff Moulder is that the defendant Ford Motor Credit Company is the assignee of plaintiffs' automobile retail instalment contract covering payments on the purchase of a Ford car from September 30, 1967 through September 29, 1970. The contract provided insurance coverage, the amount of which was included in the payments. During the first year insurance was afforded through a policy obtained by Ford. During the second year it was afforded by a policy obtained by the Moulders from Aetna. According to Mrs. Moulder there were three conversations between herself and the defendant's agent around September, 1969 as to who would obtain the insurance for the third year; after consulting with her husband plaintiff informed the agent that they had agreed for him to go ahead and get it with American Road, and he told her he would do so and the amount would be added to the payments. Shortly thereafter a new coupon book was received with monthly payments in a slightly higher amount; plaintiffs consequently assumed that the excess represented insurance procured by the defendant. On September 26, 1970, a collision occurred in which plaintiffs sustained $1,300 damage to the automobile. It developed that no insurance had been procured, and the plaintiff sues for this amount. This is not a case in which an insured seeks to enforce a parol contract for insurance against an insurer, but an action for damages based on the negligence of the defendant's agent in failing to carry out his agreement. An issue of fact is presented, and it was not error to deny the motion.
Judgment affirmed. Eberhardt, P. J., and Stolz, J., concur.