Aetna Insurance Co. v. Martin , 64 Ga. App. 789 ( 1941 )

The question to be decided, in my opinion, is whether the rider policy insured the building against fire, as a contingency, or the loss of rents, as a contingency. Ordinarily, under a fire-insurance policy, loss of rents is not a measure of damages for damage to a building by fire. 26 C. J. 360, § 461. If the parties to an insurance contract so desire, they may provide that fire insurance on a building shall include loss of rents, or they may provide that the building is definitely notinsured against fire, but that the contingency, loss of rents by fire, is the only thing insured against. The mere fact that the loss in this case would have to be due to damage by fire or lightning does not of itself define the insurance as insurance on the building. If the loss of rents for lack of a tenant was the contingency, and could be so legally, it certainly could not be said that the insurance was on the building. The loss of rents was insured against for a premium separate and distinct from one for a policy insuring building and contents against fire. The contract was written on a standard form fire-insurance policy, and it does not seem to me that the intention of the parties to write a fire-insurance contract is foreclosed by that fact when another kind of contract could have been the intention of the parties. If two parties executed a lease contract on a warranty-deed form, effect would certainly not have been given to all the provisions of the deed form simply because a line was not drawn through them. If there is doubt about just what it was that was insured, there must necessarily be doubt about what the fallen-building clause refers to and what it means. Further study convinces me that such an indirect insurance should not be adjudged insurance on a building, any more than a public liability and property damage policy is insurance on an automobile, or any more than accident insurance is insurance on one's life. I do not believe it would be seriously contended for a moment that the policy in this case would render a subsequent straight fire-insurance policy void under a provision voiding it if there were other insurance on the building, undisclosed at the time, for the reason that the coverages of building and rent are two separate and distinct things, and neither is included in the other, and the argument of fraud would not apply to the situation. If the meaning of the policy is doubtful, the judgment should be affirmed. That it is doubtful is almost conclusively shown by the facts that the Court of Appeals has ruled both ways in the case, the Supreme Court was at first divided four to two on the question, and on motion for rehearing divided three to three.