Voyager Life & Health Insurance v. Pulaski Banking Co. , 181 Ga. App. 201 ( 1986 )

Beasley, Judge,

concurring specially.

I cannot concur fully in the majority opinion because it is couched to some degree in terms which find facts, a posture which this case has not yet achieved. The question before us is not “whether . . . the . . . bank is secondarily liable in whole or in part for plaintiff’s claim,” but rather whether the evidence thus far adduced shows that the bank is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).

Secondly, I agree that part of the insurance company’s third-party complaint alleges a breach of the Creditor Agency Agreement by which the bank agreed to act on behalf of the insurance company in soliciting insurance contracts. In compensation for its services as agent, the bank receives commissions, as in the case of the issuance of Mrs. Mays’ policy. This is the benefit, plain and simple, which renders it liable to indemnify the insurance company, its principal, for the acts or omissions described in the paragraph from the contract quoted in the majority opinion.

Decided December 5, 1986. Edward B. Benton, for appellant. Denmark Groover, Jr., Wallace Miller III, for appellee.

I do not see that the collateral benefit of the interest earned on the debtor’s loan has anything to do with it. It is not even mentioned in the agreement between the insurance company and the bank which the former seeks to enforce.

I am authorized to state that Presiding Judge Deen joins in this special concurrence.