Summary
In Wells, the plaintiff's complaint asserted an agency relationship between an independent insurance agent and an insurer.
Summary of this case from Popham v. Landmark Am. Ins. Co.Opinion
65319.
DECIDED APRIL 15, 1983.
Action on policy. DeKalb State Court. Before Judge Smith.
Ervin H. Gerson, for appellant.
Sandra K. Bell, for appellee.
From the denial of defendant the National Property Owners Insurance Company's motion for summary judgment, we granted an application for interlocutory review. The plaintiff Wells sought to recover no-fault benefits for treatment of his wife arising out of an automobile collision. In the complaint it was alleged that plaintiff purchased a policy of insurance from National Property Owners Insurance Company through its agents Faterrell Showers, Akron Insurance Agency, Inc. and Atlanta Insurance Agency. It was also alleged that the plaintiff paid the premiums in a timely manner and was insured at the time of the incident in question. The complaint sought recovery under the terms of the policy plus damages for bad faith and attorney fees.
National Property filed an answer denying the material allegations of the complaint. It asserted that there was no contract in existence between the plaintiff and National Property at the time in question; that a prior policy had expired and had not been renewed.
Based on various exhibits, the pleadings and an affidavit, National Property moved for summary judgment. After a hearing, this motion was denied. Error is enumerated on the failure to grant such motion.
In our consideration of this matter, the following pertinent facts appear of record. The original policy was effective April 4, 1980 and expired April 4, 1981. Plaintiff paid $193 and received a receipt from National, Showers, Akron Insurance, and Atlanta Insurance. The insured's copy showed: "Agent Akron Ins. Agcy. Inc." National sent a letter to Wells on February 10, 1981 notifying him of the expiration of the policy, with a copy to "Akron." The notification set forth the expiration date 04/04/81, a premium of $209 or minimum payment of $83.60, and recited: "Your present policy expires as of the Expiration Date shown above. If the Premium Due for renewal is not received by the Due Date shown above, by the terms and conditions of the above mentioned policy, this company will have no obligation to renew the policy and coverage will terminate on the Expiration Date shown above."
No response was made and no money paid directly to National Property. However, on May 5, 1981 there was a payment by plaintiff, as evidenced by a receipt to the plaintiff from Atlanta Insurance by Faterrell Showers for $83.60. The automobile "accident" occurred on June 23, 1981.
The affidavit by the vice president of National Property recounted that a policy was issued to the plaintiff through the assigned risk program based on an application completed by plaintiff through his insurance agent, Showers and Akron Insurance; that at no time have Showers, Akron Insurance or Atlanta Insurance been authorized agents of National Property; that no premium was ever received after mailing the notice on February 10, 1981, and the policy expired on April 4, 1981. Held:
1. Here we have a failure to renew an insurance policy and not a cancellation. See OCGA § 33-24-45 (formerly Code Ann. § 56-2430.1). Compare Penn. Nat. Mut. Cas. Ins. Co. v. Person, 164 Ga. App. 488, 489 ( 297 S.E.2d 80) and cases therein cited. As held in Nat. Indem. v. Berry, 136 Ga. App. 545, 549 ( 221 S.E.2d 624), "The purpose of Code Ann. § 56-2430.1 (C), supra, is to provide the insured with notice as to the status of his policy. When the record affirmatively shows compliance with the statute by the insurer, knowledge of the policy's status, and admitted inactivity and nonresponse by the insured to effect a renewal thereof, the law should not create a contractual relationship due to after-the-fact circumstances. On the date of the collision in question, the liability insurance policy issued by National Indemnity Co. to Richard Berry had expired and afforded no insurance coverage to its holder." Accord, Whitlock v. Dairyland Ins. Co., 160 Ga. App. 113 ( 286 S.E.2d 343).
In the case sub judice the policy had expired and there was no coverage unless either Showers, Akron Insurance, or Atlanta Insurance was acting as agent for National Property so that payment to one of them would constitute payment to National Property.
2. While insurance agents or brokers may be considered as "dual" agents, or agents for both the insurer and the insured (see Spratlin, Harrington Thomas v. Hawn, 116 Ga. App. 175, 178 (1) ( 156 S.E.2d 402); Wright Body Works v. Columbus c. Agency, 233 Ga. 268 ( 210 S.E.2d 801); Hodges v. Mayes, 240 Ga. 643 ( 242 S.E.2d 160); Speir Ins. Agency v. Lee, 158 Ga. App. 512 ( 281 S.E.2d 279)), normally such insurance representatives are independent insurance brokers and are the insured's agents, not those of the insurer. Creative Underwriters v. Heilman, 141 Ga. App. 740 ( 234 S.E.2d 371); Kersey v. State Farm c. Ins. Co., 148 Ga. App. 763 ( 252 S.E.2d 670).
In the case sub judice the plaintiff alleged that Showers, Akron Insurance, and Atlanta Insurance were agents of National Property. National Property introduced an affidavit by one of its officers which categorically denied they were its agents.
As pointed out in Stewart v. Ga. Mutual Ins. Co., 159 Ga. App. 91, 92 ( 282 S.E.2d 728) "proof of agency can be shown . . . by circumstantial evidence, apparent relations, and conduct of the parties." Accord, Fordham v. Garrett-Schwartz Motor Co., 121 Ga. App. 237 ( 173 S.E.2d 450); Bearlund v. Webb, 127 Ga. App. 555 ( 194 S.E.2d 328); Arrington Blount Ford, Inc. v. Jinks, 154 Ga. App. 785, 787 ( 270 S.E.2d 27); Collins v. Martin, 157 Ga. App. 45 ( 276 S.E.2d 102). Nevertheless, "[i]t has long been the Georgia rule that one who is a party to the relationship (the principal or agent) may testify as a fact as to the existence or non-existence of the relationship and that such testimony would not be subject to the objection that the statement was a conclusion or the ultimate fact." Salters v. Pugmire Lincoln-Merc., Inc., 124 Ga. App. 414, 415 ( 184 S.E.2d 56). Accord, Chrysler Credit Corp. v. Barnes, 126 Ga. App. 444, 453 ( 191 S.E.2d 121); Oglesby v. Farmers Mut., 128 Ga. App. 387, 389 (5) ( 196 S.E.2d 674); Stone v. First Nat. Bank, 159 Ga. App. 812, 814 (4) ( 285 S.E.2d 207).
Since an "`assertion or denial of the existence of an agency relationship is a statement of fact when made by one of the purported parties,'" such a statement may not be disregarded by the trial court. Lewis v. Citizens c. Nat. Bank, 139 Ga. App. 855, 860 ( 229 S.E.2d 765), and is sufficient to support a motion for summary judgment. Withrow Timber Co. v. Blackburn, 244 Ga. 549, 551 ( 261 S.E.2d 361).
Here the denial of agency effectively pierced the plaintiff's pleadings and placed on him the burden of showing the fact of agency. Having failed to do so, he must suffer the consequences. Summary judgment for the defendant was demanded and the trial judge erred in denying its motion.
Judgment reversed. Sognier and Pope, JJ., concur.