Canal Insurance v. Bryant

Beasley, Judge,

dissenting.

I must respectfully dissent with respect to Division 1 of the majority opinion.

This is a suit on an insurance contract which defines the limit of liability as follows: “The limit of the company’s liability for loss to any one covered automobile shall not exceed the least of the following amounts: (a) the actual cash value of such covered automobile, or if the loss is to a part thereof the actual cash value of such part, at time of loss; or (b) what it would then cost to repair or replace such covered automobile or part thereof with other of like kind and quality, with deduction for depreciation; or (c) the limit of liability stated in the declarations as applicable to ‘each covered automobile’ under the coverage afforded for the loss to such covered automobile, provided that if such limit of liability is expressed as a stated amount it shall, with respect to a covered automobile newly acquired during the policy period and not described in the declaration, be deemed as having been replaced by ‘actual cash value.’ ”

The diesel engine of the insured’s truck suffered damage which the jury found was caused by vandalism, a covered peril. It awarded $7,883, which the evidence presented by plaintiff showed was the cost of repairing the engine. There was no evidence by plaintiff of the actual cash value of the diesel engine, although he presented evidence of the value of the entire truck immediately prior to and immediately after the engine damage. Defendant presented evidence that such an engine had an actual cash value before damage of $2,500 to $3,000. Plaintiff did offer evidence of the cost to repair the engine, and the repair bill for $7,883 plus $1,500 not attributable to the engine, which amount plaintiff was not seeking, was admitted in evidence. Plaintiff’s evidence was that there would be no depreciation, and consequently no deduction therefor. The defendant’s evidence disputed plaintiff’s evidence with regard to cost of repair, showing that it should be approximately $6,000, and that depreciation should be approximately $3,000 so that the reasonable cost of repair less reasonable depreciation would be $3,000.

Unlike tort cases, where the measure of damages is provided by law, in this case the formula is provided by the agreement of the parties, totally and exclusively. The contract does not allow the insured to choose the measure of damages. The contract only allows him the lesser of two amounts. By proving only one amount, he has made no showing that it was the lesser of the two determinable amounts. The contract clearly puts the burden on the one seeking to enforce the liability.

This contract is different from that construed in U. S. Fidelity &c. Co. v. Corbett, 35 Ga. App. 606 (134 SE 336) (1926). There the alternative was an optional one which could be invoked by the company, and for that reason, the burden of proving it would be on the company. The insurance contract in this case also has an optional payment provision which may be invoked by the company.¹ That option was not exercised by the insurer and is not relevant to the issues in this case.

The court expressly instructed the jury that the measure of damages would be an amount equal to the lesser of two figures, the actual cash value at the time of the loss or the cost to repair the engine with another of like kind and quality with deduction for depreciation, “whichever of these two amounts would be less.” The important aspect of the charge here is that it correctly instructed the jury to find the lesser of the two. There was absolutely no evidence that the actual cash value of the engine was higher than the cost of repair less depreciation. The only evidence was that the actual cash value of the engine was substantially lower than the cost of repair less depreciation, because there was no plaintiff’s evidence countering the defendant’s evidence that the cash value would be $2500 to $3000. It was not incumbent on the defendant to prove that the cost of repair less depreciation was the lesser amount. It was incumbent on the contract enforcer to establish what he was entitled to, and he could only have the lesser of two determinable amounts.

There having been a failure of the plaintiff to prove the damages to which he was entitled, that is, the lesser of the actual cash value of the diesel engine at the time of loss or the cost of repairing one of like kind and quality, with deduction for depreciation, the court below erred in denying a motion for new trial.

I would agree with the remaining divisions of the majority opinion.

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

1 “With respect to any loss covered by this insurance, the company may pay for said loss in money, or may: (a) repair or replace the damaged or stolen property or (b) return at its expense any stolen property to the named insured, with payment for any resultant damage thereto, at any time before the loss is so paid or the property is so replaced, or (c) take all or any part of the damaged or stolen property at the agreed or appraised value, but there shall be no abandonment to the company.”