Emoni Brown v. Assurance American Insurance Company ( 2020 )

FIFTH DIVISION
MCFADDEN, C. J.,
MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 11, 2020
In the Court of Appeals of Georgia
A19A2013. BROWN v. ASSURANCE AMERICAN INSURANCE
COMPANY.
MCFADDEN, Chief Judge.
This appeal from a grant of summary judgment concerns whether an
automobile liability insurance policy issued by Assurance American Insurance
Company to Anthony Brown, the husband of appellant Emoni Brown, included
uninsured motorist (UM) coverage on the day of a collision in which Emoni Brown
was injured. “[U]ninsured motorist coverage must appear in every automobile liability
policy unless rejected by the insured named in the policy.” Jones v. Federated Mut.
Auto. Ins. Co., 346 Ga. App. 237, 239 (1) (816 SE2d 105) (2018) (citation and
punctuation omitted); see OCGA § 33-7-11 (a) (1) & (3). The parties here agree that
the policy went into effect on February 23, 2017 and that the collision occurred on
March 31, 2017. They also agree that Anthony Brown rejected UM coverage in
writing. But they disagree about when that rejection of UM coverage became
effective — on February 23, 2017, the date the policy went into effect, or on May 23,
2017, the date Anthony Brown handwrote next to his signature at the bottom of his
insurance application.
As detailed below, the trial court did not err in concluding that the handwritten
date on the insurance application was a scrivener’s error, that the policy did not
include UM coverage at the time of the accident and, therefore, that Assurance was
entitled to summary judgment. So we affirm.
1. Facts.
Viewed in the light most favorable to nonmovant Emoni Brown, see Cowart
v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010), the evidence shows that
on February 23, 2017, Anthony Brown applied for and was issued an automobile
liability insurance policy from Assurance. His application is comprised of two pages.1
The first page of the application, among other things, sets out the effective date of the
1
Although Emoni Brown argues in her brief that these two pages were separate
documents, she points to no evidence in the record supporting that argument. “Factual
assertions contained in a party’s brief are not evidence unless supported by the
record.” Mays v. Ed Voyles Chrysler-Plymouth, 255 Ga. App. 357, 359 (2) (565 SE2d
515) (2002).
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policy and lists the types of coverage Anthony Brown is requesting: bodily injury and
property damage. The second page of the application contains Anthony Brown’s
handwritten signature in three places: an undated signature rejecting medical
payments coverage, an undated signature rejecting UM coverage, and a handwritten,
dated signature near the bottom of the application following a box titled “Applicant’s
Statement,” in which Anthony Brown attests to the information contained in the
application Beneath Anthony Brown’s dated signature there is an “Agent’s
Statement” certifying the information contained in the application and certifying that
the coverage options, including UM coverage, were fully explained to Anthony
Brown. Beneath the “Agent’s Statement” is an insurance agent’s electronic signature
and a typewritten date.
The various dates and times on the application are not identical. The
application shows that the policy would become effective on February 23, 2017 at
3:03 p.m. The typewritten date next to the insurance agent’s electronic signature
beneath the “Agent’s Statement” reads “2/23/2017” at 3:04 p.m. But the handwritten
date next to Anthony Brown’s signature beneath the “Applicant’s Statement” reads
“5/23/2017” at 3:08.
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In the application, Anthony Brown represented that he was not married, but on
March 27, 2017, he signed a document stating that he was married to Emoni Brown.
In that document, he elected to exclude Emoni Brown as a driver covered under the
policy.2 Assurance issued an amended declarations page on March 27, 2017,
excluding Emoni Brown as a driver and listing the “Current Coverages” as “Bodily
Injury Liability -Excl Punitive” and “Property Damage Liability.”
The collision that injured Emoni Brown occurred on March 31, 2017.
2. Analysis.
Emoni Brown argues that the discrepancy in the dates on the insurance
application precludes summary judgment to Assurance because it creates an
ambiguity regarding the effective date of Anthony Brown’s written rejection of UM
coverage. But “[e]ven ambiguous contracts are to be construed by the court unless an
ambiguity remains after application of applicable rules of construction. . . . One of
those rules is that a scrivener’s error should not be permitted to defeat the clear
intention of the parties, as otherwise evidenced by the entirety of the contract.”
Benedict v. Snead, 271 Ga. 585, 586 (519 SE2d 905) (1999) (citation and punctuation
2
Assurance does not argue on appeal that this election entitled it to summary
judgment.
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omitted). An insurance contract “is to be strictly construed against the insurer and in
favor of the insured.” MAG Mut. Ins. Co. v. Gatewood, 186 Ga. App. 169, 173 (1)
(367 SE2d 63) (1988) (citation omitted). While this means that “[w]here . . . a
provision is susceptible of two or more interpretations, the court will construe it most
favorably to the insured[,]” id. (citation and punctuation omitted), this principle is
limited to reasonable interpretations. See State Farm Mut. Auto. Ins. Co. v. Staton,
286 Ga. 23, 25 (685 SE2d 263) (2009).
The insurance contract in this case includes not only the policy but also the
application and the declarations page, because the terms of the policy expressly
incorporate them into its terms. See OCGA § 33-24-16; West v. Rudd, 242 Ga. 393,
395 (249 SE2d 76) (1978). The only reasonable interpretation of these documents,
taken together, is that the numeral “5” in the handwritten date “5/23/2017” on the
application was a scrivener’s error. The handwritten date is plainly associated with
Anthony Brown’s signature directly beneath the “Applicant’s Statement,” which
pertains to the overall application. In the “Applicant’s Statement,” Anthony Brown
states that he “hereby appl[ies] to the company for a policy of insurance” and attests
to the correctness of the information provided in the application. The other dates on
the application, including the policy’s effective date, indicate that Anthony Brown
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completed the application on February 23, 2017. And the policy states that coverage
is issued and the premium determined based on the information in the application,
indicating that an application is a precursor to the issuance of insurance. Emoni
Brown’s lawsuit depends on a policy having been issued before May 23, 2017, and
she does not contest that Anthony Brown applied for insurance on February 23, 2017.
Instead, Emoni Brown offers an unreasonable interpretation of the handwritten
date: that it does not refer to the date Anthony Brown applied for insurance but refers
to the date the parties intended his written rejection of UM coverage to go into effect.
As explained above, this interpretation does not fit with the language and format of
the application. Moreover, it conflicts with the descriptions of coverage in the
application and the amended declarations page. Both the application and the March
27, 2017 amended declarations page list only bodily injury and property damage as
the policy coverages. Those statements are inconsistent with Emoni Brown’s
assertion that the policy included UM coverage between February 23 and May 23,
2017.
In the face of this evidence of a scrivener’s error, Emoni Brown has pointed to
nothing beyond the date on the application. She has “brought forward no evidence of
[Anthony Brown’s] intent [when he dated the application] and failed to refute the
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evidence proffered by [Assurance] that [the parties] intended for [the date of Anthony
Brown’s signature on the application to be the date he applied for and was issued
insurance, February 23, 2017].” Dyess v. Brewton, 284 Ga. 583, 586 (3) (669 SE2d
145) (2008). See generally Cowart, 287 Ga. 623 (1) (a) (where defendant is moving
party on summary judgment and shows an absence of evidence supporting an
essential element of plaintiff’s claim, plaintiff “must point to specific evidence giving
rise to a triable issue” to avoid summary judgment) (citations and punctuation
omitted).
Because Assurance has pointed to evidence that Anthony Brown’s handwritten
date in the application contained a scrivener’s error and Emoni Brown has offered no
evidence in response, the trial court properly granted summary judgment to
Assurance. See Dyess, 284 Ga. at 586 (3).
Judgment affirmed. McMillian, P. J., and Senior Appellate Judge Herbert E.
Phipps concur.
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