Opinion
39575.
DECIDED JULY 5, 1962. REHEARING DENIED JULY 26, 1962.
Action on insurance policy, etc. Lowndes Superior Court. Before Judge Lilly.
Ronald F. Adams, for plaintiff in error.
Cam U. Young, contra.
Where a rental insurance contract limited the recovery of the plaintiff insured to the period from the date of the fire damage "until such time as the described building(s) could with the exercise of due diligence and dispatch, be restored to the same tenantable condition as before the damage or destruction and not limited by the date of expiration of this policy," the court did not err in granting the plaintiff's motion for summary judgment in an amount equal to ten weeks' rent, based upon an uncontroverted affidavit to the effect that the building could have been so restored within ten weeks.
DECIDED JULY 5, 1962 — REHEARING DENIED JULY 26, 1962.
Ernest H. Harper brought suit in Lowndes Superior Court against Joel J. Dampier and The Phoenix Insurance Company of Hartford, Connecticut for $6,000 for alleged breaches of contracts. Pursuant to the sustaining of both defendants' demurrers as to misjoinder of parties and of causes of action, the plaintiff amended his petition, striking Dampier as party defendant. The petition as amended and the evidence adduced on the trial showed the following substantial facts: On November 27, 1950, Dampier executed a lease to Bridges and others of a described tract of land and a commercial building which he agreed to erect thereon. At the time of the destruction of the building by fire on May 29, 1960, through a series of transactions, A. A. A. Moving Storage, Inc. was in possession of the premises as tenant, or sublessee, and the plaintiff was the assignee of the rent and income therefrom.
In the assignment to the plaintiff, the assignor, Dampier, contracted to provide the plaintiff with rental insurance of $400 per month for the duration of the lease. The insurance contract, which Dampier secured for the plaintiff from the defendant in error insurer and which was in effect at the time of the loss, provided that the loss, not to exceed the face amount of $4,800, "shall be computed from the date of such damage or destruction, until such time as the described building(s) could, with the exercise of due diligence and dispatch, be restored to the same tenantable condition as before the damage or destruction and not limited by the date of expiration of the policy."
The lease agreement provided that the lessor should be obligated to restore the building after total or substantially total destruction "only if the lessees shall request him in writing to do so within ten days after the occurrence of the damage or destruction."
The plaintiff filed a motion for summary judgment in the face amount of the policy, $4,800, supported by his own affidavit and opposed by the defendant by the affidavit of a contractor, who swore that, in his opinion, based on an estimate his company had made as to the cost of repairing the building, it could have been restored to a tenantable condition with the exercise of due diligence and dispatch within ten weeks from the date of the damage.
After a hearing, the court granted the plaintiff's motion, but awarded him only $1,000, rather than the $4,800 prayed for in the motion, to which judgment the plaintiff excepts.
The plaintiff in error bases his claim for the full face amount of the policy upon the italicized phrase in the following provision of the policy: The loss "shall be computed from the date of such damage or destruction, until such time as the described building(s) could with the exercise of due diligence and dispatch, be restored to the same tenantable condition as before the damage or destruction and not limited by the date of expiration of this policy." (Emphasis supplied). If this phrase were construed, as the plaintiff in error urges, to mean that the insured must be indemnified for every loss under the policy to the extent of the full face amount of the policy, the remainder of the above quoted provision, as to restoration of the building to a tenantable condition, etc., would be ignored or given no effect. "Under the rules governing the construction of contracts all provisions contained therein are presumed to be inserted with a purpose, and are to be given some meaning. A contract, unless its terms necessarily require it, will not be so construed as to render useless and meaningless a particular provision in the contract." Aetna Ins. Co. v. Martin, 64 Ga. App. 789, 794 ( 14 S.E.2d 161). The phrase "not limited by the date of expiration of this policy" simply means that once liability under the policy is incurred, it continues until terminated under the terms of the contract, even when the policy expires during the existence of the liability. This would be the law even without the inclusion of this phrase and the phrase cannot be construed so as to extend the insurer's liability beyond that which is specified in the plain and unambiguous terms of the remainder of the provision. The insurance policy which Dampier, as assignor, contracted to furnish and in fact did furnish to the plaintiff can reasonably be construed to indemnify the plaintiff for loss of rental income from the building only during the time which would reasonably be required to restore it to its former tenantable condition. The plaintiff could have protected his rental income after the insurer's liability under the contract had ceased by inducing the lessee to request a restoration of the premises within ten days from their destruction, as provided in the lease agreement. The fact that no request for restoration was made within the ten-day period, thereby forfeiting the right to have the building restored, is not a ground for holding the defendant in error insurer liable for any longer period of time than is specified in the insurance contract. The unambiguous contract must be enforced until it is reformed, in the event it does not express the intended agreement between the assignor, Dampier, and the plaintiff assignee. The issue of whether or not the insurance contract as written expresses the intended agreement is not raised in this case, however.
The court did not err in granting the summary judgment in the amount of only $1,000 for the plaintiff in error.
Judgment affirmed. Bell and Hall, JJ., concur.