Opinion
42814.
ARGUED MAY 4, 1967.
DECIDED JUNE 9, 1967. REHEARING DENIED JUNE 28, 1967.
Action on insurance policy. Chatham Superior Court. Before Judge McWhorter.
Richardson, Doremus Karsman, W. Ward Newton, for appellant.
Stanley E. Harris, Jr., for appellee.
In this suit brought against the insurer by one other than the person to whom the policy was issued, the plaintiff was not a beneficiary under the terms of the insurance policy so as to maintain an action on the policy in his own right.
ARGUED MAY 4, 1967 — DECIDED JUNE 9, 1967 — REHEARING DENIED JUNE 28, 1967.
Emory C. Bobo brought an action on an insurance policy against Insured Lloyds in Chatham Superior Court. The petition alleged the defendant was an unauthorized insurer (Ga. L. 1960, pp. 289, 378; Code Ann. § 56-601); the defendant issued a policy naming Wagon Masters, Inc., as insured for a period from July 2, 1964 to July 2, 1965; that the plaintiff was the owner of a 1964 Cadillac which was consigned to Wagon Masters for sale on its lot as a used car dealer; that by agreement the automobile was placed on the used car lot for the purpose of selling it; that while on the lot the automobile was stolen on August 3-4, 1964; the automobile had a value of approximately $4,800.
The petition further alleged that coverage for theft losses was provided under the terms of the policy; that the policy covered automobiles consigned to the insured and held for sale in its business as an automobile dealer; that the limit of liability for each automobile was $2,500; that the named insured is a corporation no longer doing business or having an office or place of business nor has it made any claim under the policy for the loss of the automobile; that the plaintiff's right to bring the action is by reason of the policy providing coverage for consigned automobiles, designating no specific payee, containing no requirement to list or report automobiles in the care, custody or control of the insured, and stating no requirements for filing a proof of loss or claim. The petition prayed for recovery against the defendant in the amount of $2,500.
Attached to the petition as an exhibit were portions of the insurance policy naming Wagon Masters as the insured and containing the following pertinent provision: "The policy covers automobiles consigned to or owned by the insured and held for sale or used in the insured's business as an automobile dealer including repair service or as demonstrators but excludes automobiles sold by the insured under bailment lease, conditional sale, mortgage or other type of encumbrance. Automobiles consigned to or owned by the insured which are subject to a trust agreement, bailment lease, conditional sale, mortgage or other type of encumbrance are not covered hereunder unless specifically so indicated below."
The defendant filed general and special demurrers to the petition which were overruled by the trial judge. From this judgment appeal is taken.
The question we must resolve is whether the plaintiff has standing to sue the insurer where a third party is the insured under the terms of the policy.
Code § 3-108, as amended Ga. L. 1949, p. 455, provides: "the action on a contract, whether express or implied, or whether by parol or under seal, or of record, shall be brought in the name of the party in whom the legal interest in such contract is vested, and against the party who made it in person or by agent. The beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on said contract." The plaintiff, appellee here, contends that under the contract he is the beneficiary, within the purview of Code Ann. § 3-108, so as to maintain an action against the insured.
We can not agree with this contention. The general rule is that: "An action on a policy of insurance — or on a written binder — must be brought in the name of the holder of the legal title thereto." Westbrook v. Nationwide Ins. Co., 113 Ga. App. 299, 302 ( 147 S.E.2d 819). "Generally, `one other than the person to whom it was issued can not, in his own name, maintain an action thereon, unless the policy has been duly assigned to him in writing.'" Walker v. General Ins. Co., 214 Ga. 758, 761 ( 107 S.E.2d 836). "In the absence of policy provisions to the contrary, one who suffers injury is not in privity of contract with the insurer under a liability insurance policy and cannot reach the proceeds of the policy for the payment of his claim by an action directly against the insurer." Public Nat. Ins. Co. v. Wheat, 100 Ga. App. 695, 697 ( 112 S.E.2d 194); Perkins v. Publix Theatres Corp., 47 Ga. App. 641, 642 (7) ( 171 S.E. 147).
Here there is nothing, either expressed or implied, to indicate that the plaintiff was intended to have a beneficial interest in the insurance contract. The fact that Wagon Masters, the party with whom the plaintiff was dealing, had insurance might inure to the benefit of the plaintiff, but no more so than the fact that it might be more beneficial to one who is injured by another that such tortfeasor was carrying liability insurance than if the tortfeasor had no insurance. In Murray v. Life Ins. Co. of Ga., 107 Ga. App. 545, 547 ( 130 S.E.2d 767), decided prior to the Insurance Code of 1960, where a debtor sought to recover under a credit life policy issued by an insurance company to the creditor, this court pointed out that, in the absence of any statutory provision, "The fact that the plaintiff receives an incidental benefit from the insurance, i.e., the payment of the balance of his indebtedness upon the happening of the specified events, [does not] alter the fact that the right of action is not vested in the plaintiff."
The only evident purpose of the contract was to protect the insured from loss, either by loss of vehicles it owned or those for which it was responsible. It should be noted that the policy contained the provision that: "Any loss is payable as interest may appear to the named insured and Associates Discount Corp." The fact that the policy did not specifically exclude the benefits of its coverage to all the world save the insured does not show an intent that anyone could maintain an action under the policy.
As we construe it, the plaintiff was not intended to be a beneficiary under the terms of the policy and does not amount to one within the meaning of the Code section. Hence, the plaintiff is not entitled to maintain an action in his own right against the insurer.
The trial judge erred in overruling the defendant's general demurrer.
Judgment reversed. Jordan, P. J., and Deen, J., concur.