Opinion
44818.
ARGUED OCTOBER 8, 1969.
DECIDED FEBRUARY 20, 1970.
Action on insurance policy. Augusta Municipal Court. Before Judge Mixon.
Lester Lester, Charles Christopher CoCroft, Jr., for appellant.
Fulcher, Fulcher, Hagler, Harper Reed, E. D. Fulcher, for appellee.
1. In a suit on an insurance policy to recover for the loss of unscheduled personal property this court will not give the language of the policy a construction which would render it meaningless and ineffective or which would lead to an absurd result.
2. There was evidence from which the trior of fact might conclude that a garage where the goods in question were stored was not an "occupied dwelling" within the meaning of the provisions of an insurance policy.
ARGUED OCTOBER 8, 1969 — DECIDED FEBRUARY 20, 1970.
This case arose out of a suit brought by the plaintiff to recover under the provisions of a home owner's policy issued to him by the defendant, American Employers Insurance Company, for the loss of certain items of personal property.
On July 19, 1963, defendant issued to plaintiff a policy of insurance providing fire, theft and extended coverage on property then located at 2325 Getzen Drive in Augusta, Ga. The premium for said policy was to be paid on an annual basis and the policy was to expire on July 19, 1966. Included under the provisions of the policy was Coverage "C," which provided for the loss of unscheduled personal property located away from the premises.
During the fall of 1965, plaintiff rented his home located at 2325 Getzen Drive and with the permission of the owner of the house next door, Mrs. Curry, he stored his furniture and other household goods in her garage located at 2327 Getzen Drive on a temporary basis for the purpose of safekeeping. The garage had a cement floor and its front doors were secured by a padlock. Plaintiff was never charged any rent for the use of the garage, nor did he ever pay Mrs. Curry any amount for the use of same.
After storing his furniture and household goods in his neighbor's garage, the plaintiff moved to a house with his aunt located at 2160 Bayvale Road, Augusta, and remained there until he returned to his home at 2325 Getzen Drive in May of 1966, except for a two-week period during February of 1966 when he temporarily resided at 2327 Getzen Drive. Plaintiff noted that his property was still safely stored in the garage when he left 2327 Getzen Drive after the two-week period to return to his aunt's house. When the plaintiff and his daughter moved back to their home located at 2325 Getzen Drive during the latter part of May or the early part of June 1966, and went to remove the furniture and household goods from the garage where the same had been stored for a period of approximately six months, he discovered certain items missing.
The loss of the items was reported to an authorized agent of the defendant and the demand made for payment under the terms of the policy. The defendant refused to pay on the grounds that coverage was not afforded under provisions of the policy.
The key provisions of the policy, which we denominate for clarity as Provisions 1, 2 and 3, are as follows:
1. (Coverage C — Unscheduled Personal Property.) "This policy also covers unscheduled personal property as described and limited while elsewhere than on the premises, anywhere in the world, owned, worn or used by an insured . . . or in a residence temporarily occupied by an insured."
2. (Perils Insured Against). "Theft: meaning any act of stealing or attempt threat and, as to Coverage C (on premises), including theft of property covered from within any bank, trust or safe deposit company, public warehouse, or occupied dwelling not owned or occupied by or rented to an insured, in which the property covered has been placed for safekeeping." (Emphasis supplied).
3. (Exclusion Applicable To Property Away From Described Premises.) "This policy does not apply as respects this peril to loss away from the premises of: (a) property while in any dwelling or premises thereof, owned, rented or occupied by an insured, except while an insured is temporarily residing therein."
The defendant answered and set forth that the loss was excluded from coverage under Provision 3 because the loss resulted away from the premises and while at premises rented by the plaintiff, who was not temporarily residing therein. By amendment the defendant also contended that the loss was not covered under Provision 2 because the alleged theft was of property from within an unoccupied garage not owned, occupied or rented to the insured.
The case came on for trial before a judge sitting without a jury. At the conclusion of the evidence, the trial judge found in favor of the defendant. The plaintiff moved for a new trial which was overruled and subsequently filed his notice of appeal.
1. The policy clearly reveals that unscheduled personal property is not covered (against theft) where it is kept in a dwelling on premises owned, occupied by or rented to the insured, except while the insured is temporarily residing therein. See Provisions 1 and 3. However, property is covered where placed for safekeeping in an occupied dwelling not owned, occupied by or rented to the insured. See Provision 2.
The location of the property in question was clearly not owned by or rented to the insured. The defendant insurance company contends that by placing the goods in the garage on 2327 Getzen, the plaintiff was occupying such within the purview of the policy. If so the quoted language in Provision 2 is meaningless. If the mere placing of goods at a locale for safekeeping would constitute "occupancy" of such area, then there could be no "occupied dwelling" which was not also occupied by the insured. In considering an insurance contract, this court will not construe the language, ostensibly written to show limits of coverage, to completely disallow any coverage whatsoever. "A contract must be given a reasonable construction which will uphold and enforce the instrument, if possible, rather than a construction which would render it meaningless and ineffective or which would lead to an absurd result." Brown v. Chrysler Corp., 112 Ga. App. 22, 23 ( 143 S.E.2d 575). See Aetna Ins. Co. v. Martin, 64 Ga. App. 789, 794 ( 14 S.E.2d 161); Central Ga. Elec. c. Corp. v. Ga. Power Co., 217 Ga. 171, 173 ( 121 S.E.2d 644). This contention is without merit.
2. There is no question that the principal building situated on the premises at which the garage was located was occupied. Thus, the sole question that remains is whether the garage in question constitutes an "occupied dwelling" so as to be within the limits of coverage.
Historically, the term "dwelling" or even the more restricted term "dwelling house" "embraces in law the entire congregation of buildings, main and auxiliary, used for abode." North British c. Ins. Co. v. Tye, 1 Ga. App. 380, 383 ( 58 S.E. 110). It includes everything pertinent and accessory to the main building and may consist of a cluster of buildings. See 28 CJS 599, 602, 603, Dwelling.
Basically, there is authority for the proposition that dwelling includes all within the curtilage, although some cases have predicated their rulings on whether the particular structure is attached, contiguous or appurtenant to the "main" house. See 13A Words and Phrases 561, Dwelling.
Here with reference to the "dwelling" on the described premises the contract distinguishes between property which is attached to the principal building (listed under Coverage A — Dwelling) and private structures appertaining to the premises and located thereon (Coverage B — Appurtenant Private Structures). This is the only definition of the term "dwelling" contained in the policy.
While ambiguous terms are construed most strongly against the insurer and in favor of the insured, the construction must be reasonable and not strained. Mattox v. New England Mut. Life Ins. Co., 25 Ga. App. 311, 316 ( 103 S.E. 180). The primary consideration is determining the intent of the parties ( Code § 20-702) and in doing so "the contract as a whole must be looked to in arriving at the construction of any part." Cotton States Mut. Ins. Co. v. Hutto, 115 Ga. App. 164, 166 ( 154 S.E.2d 375).
"Words contained in the contract will be construed in the sense in which they are apparently mutually employed by the contracting parties, irrespective of their proper and logical meaning." Brooks v. Folds, 33 Ga. App. 409 (1) ( 126 S.E. 554). Hence, as a general rule words used in one sense in one part of a contract are deemed to have been used in the same sense in another part of the instrument. 17 AmJur2d 637, 640, Contracts, § 247; 17A CJS 150, Contracts, § 303; Willingham v. Life Cas, Ins. Co. of Tenn., 216 F.2d 226. Here from the definition of dwelling contained in the policy, and nothing to the contrary appearing, there is a clear intent manifested to limit the term "occupied dwelling" solely to a principal house or place of abode and connected structures. Thus, we can not with reason construe the policy to include disconnected structures or "out buildings." Here there is evidence showing the garage in question was some 22 to 30 feet from the house and was not being used as a garage or for any purpose other than storing the plaintiff's possessions. Hence, there was some proof that it was not an "occupied dwelling" so that property stored therein would not be covered.
Judgment affirmed. Hall, P. J., and Pannell, J., concur.