Desai v. Safeco Insurance Co. of America

Beasley, Judge,

concurring specially.

The policy provides: “No suit shall be brought on this policy unless the insured has complied with all policy provisions and has commenced the suit within one year after the loss occurs.” The loss occurred on August 2, assuming that some of the loss was not occasioned by its continuing to smolder on August 3.

The period “one year after the loss occurs” could just as logically be construed to mean that the year begins the day following the loss, since the word “after” is used, as it can be construed to mean that the year begins the day of the loss. If the former construction is applied, the year ended on August 2, the day the suit was filed. If the latter construction is applied, the year commenced immediately, on the same day as the fire occurred, and ended the day before the anniversary date of the fire.

As the majority points out, when there is ambiguity, the words must be construed against the drafter, here the insurer. Greer v. IDS Life Ins. Co., 149 Ga. App. 61 (253 SE2d 408) (1979). It is incumbent on the drafter to state the terms clearly. See OCGA § 13-2-2; Ranger Ins. Co. v. Culberson, 454 F2d 857 (5th Cir. 1971), cert. denied, 407 U. S. 916 (92 SC 2440, 32 LE2d 691) (1972). If the drafter intended the year to start running the day of the fire, it could have stated “one year, beginning the day of the loss” or words to that effect. But it used the word “after.” Construing the language against it, I would hold that the filing of the suit was timely.

However, the language used in this contract was substantially the same as that construed in Allstate Ins. Co. v. Stephens, 239 Ga. 717 (238 SE2d 382) (1977) and Phillips v. Fireman’s Fund Ins. Co., 31 Ga. App. 541 (121 SE 255) (1923), which decisions I am constrained to follow.

I can find no distinction allowing a different result from the fact that the term “twelve months” was used in those policies whereas the term “one year” is used in Desais’.