Michigan Homes, Inc. v. United States Fidelity & Guaranty Co.

Deen, Presiding Judge,

dissenting.

Over one hundred years ago, Chief Justice Bleckley proclaimed that “we may safely say that the reasoning of the law is never absurd.” Knox v. Bates & Co., 79 Ga. 425, 427 (1887). The majority opinion suggests that the safety of that proclamation is presently in jeopardy.

As suggested by the majority opinion, the obvious intent of the exclusion under consideration was to exclude coverage for release of waste materials into or upon land, into the atmosphere, and into any watercourse or body of water, an intent that was side-tracked by an apparent typographical error. While categorizing both of the literal but contrary constructions favored by the appellant and the appellee as absurd, the majority opinion then endorses the construction that strays furthest from the real intent of the exclusion. While there is a general rule of construction of contracts that if a policy provision is susceptible of two or more constructions, the court should adopt that construction which is most favorable to the insured, it should also be remembered that the cardinal rule is to ascertain and effectuate the intention of the parties. Brooke v. Phillips Petroleum Co., 113 Ga. App. 742 (149 SE2d 511) (1966). It is the construction advanced by the appellee, not the appellant, that accomplishes that goal. If this court only has the choice of selecting one absurdity over another, I favor the choice that at least effectuates the obvious purpose contemplated by the exclusion.

Decided September 6, 1988 Rehearing denied October 14, 1988 R. Kelly Raulerson, for appellant. Stephen S. Goss, Billy C. Mathis, Jr., for appellee.

Accordingly, I must respectfully dissent.