Valley Wood, Inc. v. Georgia Casualty & Surety Company

FIRST DIVISION
DOYLE, C. J.,
PHIPPS, P. J., and BOGGS, J.
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 23, 2016
In the Court of Appeals of Georgia
A15A1915. GEORGIA CASUALTY & SURETY COMPANY v. BO-093
VALLEY WOOD, INC. et al.
A15A1916. VALLEY WOOD, INC. v. GEORGIA CASUALTY & BO-094
SURETY COMPANY.
BOGGS, Judge.
Following a jury trial in this insurance coverage case, Georgia Casualty &
Surety Company (“Georgia Casualty”) appeals from a judgment in favor of Valley
Wood, Inc. In Case No. A15A1915, Georgia Casualty asserts that the trial court erred
in the following ways: (1) denying its motion for a directed verdict; (2) denying its
request for jury charges concerning agency law and false statements; (3) instructing
the jury on the theft by taking criminal statute and fraud; and (4) awarding
prejudgment interest. In Case No. A15A1916, Valley Wood asserts that the trial court
erred by granting a directed verdict in favor of Georgia Casualty on the issue of bad
faith damages under OCGA § 33-4-6 and denying its motion for a directed verdict in
its favor on the same issue. For the reasons explained below, we reverse in Case No.
A15A1915 and dismiss Case No. A15A1916.
Case No. A15A1915
1. Georgia Casualty asserts it was entitled to a directed verdict in its favor
based upon OCGA § 33-24-7 (b). This code section provides, in part:
Misrepresentations, omissions, concealment of facts, and incorrect
statements shall not prevent a recovery under the policy or contract
unless:
(1) Fraudulent;
(2) Material either to the acceptance of the risk or to the hazard
assumed by the insurer; or
(3) The insurer in good faith would either not have issued the policy or
contract or would not have issued a policy or contract in as large an
amount or at the premium rate as applied for or would not have provided
coverage with respect to the hazard resulting in the loss if the true facts
had been known to the insurer as required either by the application for
the policy or contract or otherwise.
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The evidence introduced at trial shows that the co-owner of Valley Wood,
Richard Ramey, obtained insurance coverage with Georgia Casualty through Valley
Wood’s insurance agent, J. Smith Lanier. It is undisputed that the insurance
applications submitted by the Lanier agency to Georgia Casualty were not signed.
Ramey testified that until the week before trial, he had never seen the application
before. He denied being asked the questions in the application “by anybody,” giving
permission for anyone to answer the questions or being asked the type of questions
in the application by anyone at the Lanier agency. No one from the Lanier agency
testified at trial.
An underwriter with Georgia Casualty testified that he received the application
through an email from the Lanier agency, that he would have rejected the application
for crime coverage if the application had stated that Valley Wood did not audit with
a certified public accountant and did not require countersignatures on checks, and that
his underwriting decision was based upon the applications. Ramey admitted that
Valley Wood did not perform full audits each year or require countersignatures on
checks.
With these facts in mind, we must now determine whether Georgia Casualty
was entitled to a directed verdict in its favor. “A directed verdict is authorized only
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where ‘there is no conflict in the evidence as to any material issue and the evidence
(adduced), with all reasonable deductions therefrom, shall demand a particular
verdict.’ OCGA § 9-11-50 (a). [Cit.]” Massachusetts Bay Ins. Co. v. Wooten, 215 Ga.
App. 386, 387 (2) (450 SE2d 857) (1994).
Under OCGA § 33-24-7, misrepresentations, omissions, concealment of
facts, and incorrect statements made by an insured during negotiations
for an insurance policy will bar recovery under that policy where they
were material either to the acceptance of the risk or to the hazard
assumed by the insurer; or where the insurer in good faith would not
have issued the policy or contract if the true facts had been known to the
insurer. To avoid coverage under this statute, the insurer need only show
that the representation was false and that it was material. A material
misrepresentation is one that would influence a prudent insurer in
determining whether or not to accept the risk, or in fixing a different
amount of premium in the event of such acceptance. While ordinarily
the question of materiality is for the jury, where the evidence excludes
every reasonable inference except that the misrepresentation was
material, the issue becomes a question of law for the court.
(Citations, punctuation and footnotes omitted.) Pope v.Mercury Indem. Co. &c., 297
Ga. App. 535, 537-538 (1) (677 SE2d 693) (2009). It is well-established that the
insurer need not show “actual knowledge of the falsity of misrepresentations in order
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to prevent a recovery under the policy.” United Family Life Ins. Co. v. Shirley, 242
Ga. 235, 237-238 (248 SE2d 635) (1978).
In this case, the undisputed evidence shows that the use of a CPA audit and a
requirement that checks be countersigned were material to Georgia Casualty’s
decision to issue crime coverage to Valley Wood and that it would not have issued
the policy if it had known the true facts. “Where the evidence shows that the insurer
would not have issued the policy if it had been aware of the true facts, the evidence
demands a finding that the omissions or misrepresentations were material to the
acceptance of the risk.” (Citation, punctuation and footnote omitted.) Pope, supra,
297 Ga. App. at 538 (1).
To the extent Valley Wood argues that it cannot be bound by
misrepresentations in an unsigned application submitted by its insurance agent, we
conclude that these arguments have no merit. “Independent insurance agents or
brokers are generally considered the agent of the insured, not the insurer.” (Citation
omitted.) Canal Ins. Co. v. Harrison, 189 Ga. App. 681, 683 (1) (376 SE2d 923)
(1988). And a “principal shall be bound by all representations made by his agent in
the business of his agency and also by his willful concealment of material facts,
although they are unknown to the principal and known only by the agent.” (Citation,
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punctuation and footnote omitted.) Assaf v. Cincinnati Ins. Co., 327 Ga. App. 475,
479 (1) (759 SE2d 557) (2014). In this case, the undisputed evidence shows that the
Lanier agency was authorized to procure insurance on behalf of Valley Wood, and
its conduct in submitting an application for insurance would undoubtedly fall within
the scope of its agency relationship.
We also find no merit in Valley Wood’s claim that Georgia Casualty’s failure
to timely rescind the policy and return its insurance premiums precludes a directed
verdict in Georgia Casualty’s favor. In this case, Georgia Casualty sought “a
declaration that the insurance policy is void because Valley Wood made
misrepresentations in its applications for insurance to Georgia Casualty.” If Georgia
Casualty had rescinded the policy and returned the premium, it would no longer have
had uncertainty with regard to future conduct and this would have destroyed its claim
for declaratory relief. See Minnesota Lawyers Mut. Ins. Co. v. Gordon, 315 Ga. App.
72, 73-76 (726 SE2d 562) (2012) (insurer not entitled to declaratory judgment after
it voided insurance policies). Compare Sentry Indem. Co. v. Brady, 153 Ga. App. 168,
169-170 (264 SE2d 702) (1979) (insurer sought declaratory judgment that policy void
based upon material misrepresentations in the application).
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The purpose of the Declaratory Judgment Act is to settle and afford
relief from uncertainty and insecurity with respect to rights, status, and
other legal relations. OCGA § 9-4-1. The law is well established that
declaratory judgment is not available where a judgment cannot guide
and protect the petitioner with regard to some future act -- as where an
insurance company has already denied a claim. That is because
declaratory judgment is not available to a party merely to test the
viability of its defenses.
(Citations and punctuation omitted.) Drawdy v. Direct Gen. Ins. Co., 277 Ga. 107,
109 (586 SE2d 228) (2003). As a sister state has recognized,
An insurer may file a declaratory action in order to determine whether
an insurance policy is voidable. Although a prerequisite to rescission is
placing the other party in the status quo ante, it does not follow that the
insurer must allege a return of premiums when seeking a declaratory
judgment that it is entitled to void the policy. An insurer may want to
know whether a policy is, in fact, voidable before seeking to rescind the
policy, and a declaratory judgment is an appropriate means to that end.
(Citations and punctuation omitted.) Transp. Cas. Ins. Co. v. Soil Tech Distrib., 966
So.2d 8, 10 (Fla. Ct. App. 2007).
For all of the above-stated reasons, we reverse the trial court’s denial of a
directed verdict in favor of Georgia Casualty on the issue of whether the policy was
void based upon misrepresentations in the application.
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2. Georgia Casualty’s remaining enumerations of error are rendered moot by
our holding in Division 1.
Case No. A15A1916
Because Valley Wood’s claims of error are rendered moot by our holding in
Division 1, we dismiss Case No. A15A1916.
Judgment reversed in Case No. A15A1915. Appeal dismissed in Case No.
A15A1916. Doyle, C. J. and Phipps, P. J., concur.
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