1. Where the attorney for the insurer enters an appearance for the insured but thereafter, on the basis of investigation of the facts and the policy provisions, withdraws from the case and the suits are thereafter voluntarily dismissed by the plaintiffs, his action in withdrawing from the defense does not prejudice the rights of the plaintiff or estop the insurer to thereafter deny coverage.
2. Where there is evidence to show the reason for the use of petitioner's mother's automobile was as a temporary substitute for his own, which was withdrawn from normal use because for breakdown, the jury was authorized to find there was coverage under the policy, requiring the insurer to assume and conduct the defense of the damage suits against the petitioner.
3. If there be any reasonable ground for the insurer to contest a claim, there can be no bad faith, and it is error to award a penalty for failure to defend.
4. Whether there be primary coverage under another policy, the insurer's obligation to defend the insured remains the same under the contract of insurance between them.
5. The provisions of a policy for coverage of a substitute vehicle are to be construed liberally in favor of the insured if any construction of the policy is necessary. However, if no ambiguity exists, the contract of insurance must be interpreted as written.
6. Appellant's brief should comply with Rule 17 of this court. Code Ann. § 24-3617.
(a) Specific reference to the record or transcript, or both, is essential to a consideration of the alleged errors.
(b) A failure to follow the rules will result in a refusal to pass on the alleged error.
7. Testimony of a conversation between an agent of the insurer and the insured in regard to defense, settlement, or protection of the insured cannot be said to be hearsay, irrelevant, immaterial or self-serving in this suit for damages between the plaintiff as insured and the insurer as defendant arising out of the contract of insurance.
8. The above likewise applies to correspondence, pleadings and decrees resulting from the defense, failure to defend and damage to the insured.
9. 10. The charge cannot be said to be "replete and repetitive" so as to be argumentative and more favorable to the contentions of the plaintiff rather than the defendant. Further, the written requests to charge which were argumentative and more favorable to the defendant were properly refused by the court.
11. A denial of summary judgment is not subject to review as an ancillary ruling in reviewing a final judgment.
This appeal is by the defendant insurance company in the court below from the order overruling its motion for judgment notwithstanding the verdict and motion for new trial as amended, after jury verdict against it for $85,850.08 plus 25% penalty, and the judgment which followed the verdict, ordering the payment of said funds in "complete satisfaction of judgments" rendered against the plaintiff-insured in a Florida court. The petitioner brought the action against his insurer, the appellant herein, based upon its disclaimer and refusal to defend him under a liability policy by and between the insurer and the insured in certain suits against him in the State of Florida, and also seeking a restraining order and injunction against the parties holding the Florida judgment against him from levying on his property to satisfy their judgments. The petition alleged bad faith and negligence in failing to defend and sought a 25% penalty and attorney fees in a reasonable amount by reason of said bad faith. The attorney fees were later abandoned.
As shown by the evidence it appears that the petitioner was the owner of two motor vehicles (automobile and pick-up truck) with liability coverage with the insurer on each. The petitioner resided in the home of his widowed mother who also owned an automobile insured by another company. On a named date his mother borrowed his automobile to drive to an adjoining town because it was newer, "in better shape," with "better tires," leaving her motor vehicle in the care of her son. The son usually drove the pick-up truck to work, but on the day of the collision out of which the judgments against him arose, he was driving his mother's car. There is some evidence that he merely drove his mother's car in place of his own car which she had driven to the adjoining town, but, in addition thereto, there is other evidence that his usual practice was to drive the pick-up truck to and from home to work at his regular job and to assist his mother at her service station, and that on this occasion he started to drive the pick-up truck but noticed a tire going flat, and since he had on his best clothes, he did not desire to change it at the moment. He elected to wait until the next morning and to drive his mother's car. He was therefore driving his mother's car at the time the collision occurred, resulting in the judgments arising out of damage suits against him, which is the subject matter of this litigation.
The pertinent portions of the policy of insurance between the plaintiff and the defendant insurer are that the insurer "Agrees with the insured, ... To pay on behalf of insured all sums which the insured shall become legally obligated to pay as damages because of: A. bodily injury ... sustained by any person... B. injury to or destruction of property ... arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the company shall defend any suit alleging such bodily or property damage and seeking damages which are payable under the terms of this policy..."
The policy shows the following persons are insured under this portion of the policy: "(a) with respect to the owned automobile, (1) the named insured and any resident of the same household... (b) with respect to a non-owned automobile, (1) the named insured..." It is also important to here look at the following definition in the policy: "`owned automobile' means... (d) A temporary substitute automobile: `temporary substitute automobile' means any automobile or trailer, not owned by the named insured, while temporarily used with the permission of the owner as a substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction; `non-owned automobile' means an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile..." (Emphasis supplied.)
The questions for determination here, as in the court below, are: Was there coverage by the insurer under the policy? If there was coverage, was the insurer's refusal to defend and participate in attempting to settle the claims without any reasonable basis, so as to amount to bad faith? The insurer's contentions are that coverage under its policy was denied because (1) the petitioner was living with his mother, as a member of her household, and (2) he was driving her car at the time of the casualty, which car was covered by liability insurance. The insurer contends that under the evidence there was no way the jury could have found the petitioner was operating a non-owned automobile at the time of the collision, since he was clearly operating the car of his mother with whom he lived at the time of the accident, and the vehicle being driven by him did not fit the definition of "an owned automobile" under the policy.
Error is enumerated as to (1) the denial of the insurer's motion for directed verdict, motion for judgment notwithstanding the verdict, and the general grounds of the motion for new trial, since the evidence introduced, with all reasonable deductions and inferences therefrom, demanded a verdict in its favor; (2) the failure to require the production of certain evidence; (3) the rejection and disallowance of the filing of a third-party complaint, a cross claim against the codefendants, and a counterclaim against the plaintiff; (4) certain objections to evidence, both exhibits and testimony; (5) the failure to charge the jury as to the legal construction of the insurance policy, including the defined words: "Owned automobiles," "non-owned automobile," "temporary substitute automobile," and various other portions of the policy, and upon the facts and circumstances under which the defendant would be entitled to a verdict; (6) the failure to charge the jury with any statement whatever in respect to the contentions of the defendant, and particularly as to its legal right to disclaim or deny coverage; (7) the failure to charge the difference between a primary policy of insurance and an excess policy of insurance; (8) the failure to give in charge the effect of the portions of the oral and written evidence which relate to the dismissal of suits in Georgia prior to the damage suits sued to judgment in Florida as the same would apply to the doctrines of waiver, estoppel and claims for damages for bad faith and penalties; (9) the submission to the jury of the issues of waiver and estoppel as applied to the defendant, giving only the petitioner's contentions and not the defendant's, and the issues of bad faith and penalties; and having submitted such issues it erred in instructing the jury that the evidence in favor of the plaintiff did not support the finding that there was not a reasonable ground for denial of coverage or what would constitute good faith on the part of an excess insurance carrier; and under the evidence the insurer had a good legal and factual defense; (10) the failure to charge the jury as requested on various and sundry matters; (11) the failure to submit to the jury the doctrine of estoppel as it applied to the plaintiff in making certain payments on the judgments obtained against it; (12) the giving of certain of plaintiff's requests to charge on the subject matter of negligence and proximate cause; and (13) the charging and failing to charge various other matter; all amounting to 65 enumerations of error.
PER CURIAM.
1. The insurer is not estopped to deny coverage because it initially began a defense in the first lawsuits which were all voluntarily dismissed by the plaintiffs. Jones v. Ga. Cas. c. Co., 89 Ga. App. 181 ( 78 S.E.2d 861) and State Farm Mut. Auto. Ins. Co. v. Anderson, 104 Ga. App. 815 ( 123 S.E.2d 191) are inappropriate. In the Jones case the insured defended the case until final judgment without any reservation of rights. The Anderson case held for the insurer on the theory that there had been a valid reservation of rights even though the case was defended up to and through the final judgment.
The law on the question is as follows: "An entry of an appearance for the insured by the insurer does not of itself constitute a waiver of available defenses, but the insurer is entitled to a reasonable time in which to investigate the facts. And the insurer may withdraw from the defense upon learning of facts which constitute a policy breach, and no waiver or estoppel will arise. But the insurer is required to act seasonably in disclaiming liability and it could not delay its decision so long that the insured's rights were prejudiced thereby." 7A Appleman 527, 529, § 4693. "It seems well established that, if a liability insurer's defense of an action against the insured is to work an estoppel barring the insurer from subsequently raising the defense of non-coverage, or some other defense existing at the time of the accident, it must be shown that prejudice resulted from the insurer's conduct in defending its action against the insured." 38 ALR2d 1157. For a recent case where notice that a policy exclusion was not waived was given before trial, see Stillwell v. Iowa Nat. Mut. Ins. Co., 205 Va. 588 ( 139 S.E.2d 72).
The accident occurred on January 16, 1966. Less than thirty days later (February 14th) lawsuits were filed against both Godleys. The Godleys' insurer (Home) and his mother's insurer (Phoenix — which covered the automobile being driven by Godley), both assigned the investigation of the accident to an independent adjuster — Crawford Company. Both insurers employed the same attorney to represent them — Mr. Ogden Doremus. Less than four months after the accident (June 7, 1966) Home, through its attorney Mr. Doremus, advised Godley that its investigator disclosed that at the time of the occurrence he was driving an automobile owned by his mother, a member of the same household and his relative, and for that reason and others the automobile was not covered under the Home policy. On this same date Mr. Doremus advised the Clerk of the Superior Court of Camden County that his name should be withdrawn as attorney in all cases and that the name of Mr. Wallace E. Harrell should be substituted (attorney for Phoenix). Almost five months thereafter, identical suits were filed in Florida against the Godleys, and in December, 1966, the Camden County suits were voluntarily dismissed by the plaintiffs.
There is no estoppel by virtue of the fact that Mr. Doremus, as attorney for both Home and Phoenix, entered an appearance for the insured in the Camden County cases. On the basis of the investigations of the facts and the policy provisions of both insurers, Mr. Doremus determined that there was no coverage under the Home policy but that there was coverage by Phoenix. His action in withdrawing himself and Home from the defense and turning the defense over to Mr. Harrell (attorney for Phoenix) did not prejudice the rights of Godley because some time thereafter these suits were voluntarily dismissed by the plaintiffs. The Florida suits were not filed until five months after the time Mr. Doremus withdrew from the case.
2. The evidence is such that reasonable minds may examine it and differ as to its meaning and results. We find the parties admitting that there were three separate insured automobiles, with two separate policies by two separate companies, involving the liability coverage of the petitioner and his widowed mother. There is no question of the mother's liability coverage on her automobile; but we have for determination whether the insurance contract between the insured and the insurer, covers the insured as the driver of his mother's automobile, not his own, which he was driving on the date of the collision. Counsel for appellant argues that the vehicle was not covered as a "non-owned automobile" under the definition in the policy, although, in fact, it was not owned by the driver, since it was the automobile of his mother, a relative, and it was "furnished for the regular use of either the named insured" or his mother, hence the insurer owed no coverage. The testimony does not demand a finding that use by the driver was "regular use" by him, but it was "owned by" and "furnished for the regular use" of his mother. But we now look to other definitions in the policy. Under the definition of "owned automobile" we find that this means coverage of "a temporary substitute automobile" which means "any automobile ... used with the permission of the owner ... as a substitute for the owned automobile ... when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction." (Emphasis supplied.) He had two insured vehicles — one in service, the other with a flat tire or one that was going flat. From his testimony, the jury could have inferred the use of his mother's car was in trade for his own, but the jury could just as easily have found from this testimony that his other vehicle (the pick-up truck), being unserviceable, authorized coverage while driving the automobile not owned by him as a "temporary substitute automobile" for his own. After a verdict, the evidence is construed in its light most favorable to the prevailing party, for every presumption and inference is in favor of the verdict. Wren v. State, 57 Ga. App. 641, 644 ( 196 S.E. 146); Southern R. Co. v. Brock, 132 Ga. 858, 862 ( 64 S.E. 1083); Stapleton v. Amerson, 96 Ga. App. 471 (5) ( 100 S.E.2d 628); Young Men's Christian Assn. v. Bailey, 112 Ga. App. 684, 690 ( 146 S.E.2d 324). Thus, under the policy, it was an "owned automobile." The facts here are not unlike those found in Cotton States Mut. Ins. Co. v. Lee, 119 Ga. App. 293 ( 166 S.E.2d 907).
3. Damages for bad faith will not be allowable. It is elementary that, "If the evidence is such that a finding in accordance with the contentions of the defendant would have been authorized, a finding of bad faith is not authorized. Royal Ins. Co. v. Cohen, 105 Ga. App. 746, 747 ( 125 S.E.2d 709)." St. Paul Fire c. Ins. Co. v. Postell, 113 Ga. App. 862, 863 ( 149 S.E.2d 864); American Cas. Co. v. Seckinger, 108 Ga. App. 262 ( 132 S.E.2d 794); Lincoln Life Ins. Co. of Ga. v. Anderson, 109 Ga. App. 238 (3) ( 136 S.E.2d 1); U.S. Fidel. c. Co. v. Biddy Lumber Co., 114 Ga. App. 358, 359 ( 151 S.E.2d 466); U.S. Fire Ins. Co. v. Tuck, 115 Ga. App. 562, 574 ( 155 S.E.2d 431).
In Division 2 it is asserted that "the evidence is such that reasonable minds may examine it and differ as to its meaning and results." If there is any reasonable ground for contesting the claim there is no bad faith and it is error to award penalty and attorney's fees. Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 316 ( 127 S.E.2d 454); Belch v. Gulf Life Ins. Co., 219 Ga. 823, 828 ( 136 S.E.2d 351).
4. One of the errors enumerated is on the failure of the court to charge the difference between a primary policy of insurance and an excess policy of insurance. Whether the insurer be a primary or excess carrier, its obligation to defend the insured is the same under the contract. National Surety Corp. v. Dunaway, 100 Ga. App. 842 ( 112 S.E.2d 331); U.S. Fidel. c. Co. v. Watson, 106 Ga. App. 748, 751 ( 128 S.E.2d 515). The lower court did not err in failing to charge on excess insurance, which was not relevant or material to this case. Hartford c. Ins. Co. v. Cochran Oil Mill c. Co., 26 Ga. App. 288 ( 105 S.E. 856); Continental Cas. Co. v. Owen, 90 Ga. App. 200 ( 82 S.E.2d 742).
5. The provisions of a policy for coverage of a substituted vehicle are for the insured's benefit and are to be construed liberally in favor of the insured if any construction is necessary; and the purpose of a substitution clause is not to narrowly limit or defeat coverage, but is to make the coverage reasonably definite as to the vehicle the insured intended normally to use. See Samples v. Ga. Mut. Ins. Co., 110 Ga. App. 297 ( 138 S.E.2d 463); Cotton States Mut. Ins. Co. v. Lee, 119 Ga. App. 293 (1) ( 166 S.E.2d 907).
But ambiguity is not to be found where none exists, and the contract must be interpreted as written. The substitution provision must neither be unreasonably extended to materially increase the risk, nor is it to be narrowly applied against the insured, inasmuch as it is designed for his protection. Since the policy is not ambiguous, it was not necessary for the court to construe the policy in its charge to the jury. None of the alleged errors enumerated on the failure of the court to give the legal construction of the contract or to construe various language found in the policy is meritorious.
6. Complaint is made as to the disallowance of appellant's "third-party complaint," "cross claim" and "counter claim." The record shows these pleadings as filed, but we find no ruling by the court thereon, nor does the brief, as required by Rule 17 ( Code Ann. § 24-3617) point out the ruling by the court disallowing same which is essential to a consideration of these alleged errors. This record is voluminous, and we will not go out on a searching expedition for error. See Wall v. Rhodes, 112 Ga. App. 572 ( 145 S.E.2d 756); Crider v. State of Ga., 115 Ga. App. 347 ( 154 S.E.2d 743); Strickland v. English, 115 Ga. App. 384 ( 154 S.E.2d 710); Coley v. Smith, 117 Ga. App. 822 ( 162 S.E.2d 216); Allen v. Carter, 119 Ga. App. 825 ( 168 S.E.2d 901). Again, under the authority of Code Ann. § 38-801 (Ga. L. 1966, p. 502; 1968, pp. 434, 435; 1968, p. 1200), a notice to produce certain documents was served. Error is enumerated on the failure to produce, but nothing is shown in the brief as to whether or not these documents were requested of counsel and not produced in court, or whether this was ever called to the attention of the trial court and a definite ruling obtained thereon. As has been heretofore stated by this court in the Wall case, supra, "without the aid of the brief of counsel, this court cannot identify or pass upon the contention which the appellant seeks to urge as cause for reversal," for the brief must make the alleged error intelligible "or this court has nothing before it for decision." The brief fails to point out where in the record or the transcript any ruling of the court was made on this point. Accordingly, these alleged errors are not found to be meritorious.
7. During the trial, the plaintiff, Godley, was questioned about a conversation he had with an adjuster for the insurer who was investigating the collision, with respect to what Godley, the insured, wanted done with these claims against him, because the answer would be self-serving, hearsay, irrelevant and immaterial. The testimony elicited was in reference to a conversation between the adjuster and the petitioner, part of which was already in evidence, and showed that the plaintiff never signed a "non-waiver agreement," never was advised by the company it was not going to cover him on the cases, was seeking information as to when they would "settle the case and get through with it," and the insured expected the insurer to protect him in the case. This testimony was not self-serving, hearsay, or irrelevant, but material to the issues in the case. We find no error in this complaint.
8. The correspondence showing the investigation of the collision by agents and attorneys of insurers, the answer in a Georgia case filed by counsel employed by the insurance company, as attorney for the insured, and the Florida judgments being the very sum, substance and subject matter on which this action is based, the court did not err in allowing same in evidence as exhibits. Further, the deposition of the Florida trial judge was taken which showed how the judgments occurred, and the correspondence shows the assumption and responsibility by the insurer, as well as the degree in defending the petition before the company elected to cease same because it felt there was no coverage.
9. Examination of the entire charge fails to disclose that the charge is "replete and repetitive" insofar as the contentions of the plaintiff are concerned. The court properly charged the jury with respect to the contentions of the defendant and particularly as to its right to disclaim or deny coverage.
10. The court did not err in refusing to give the requests to charge which were argumentative and more favorable to the defendant.
11. A denial of summary judgment is not subject to review "by direct appeal or otherwise," unless the requirements that the lower court certify it for direct appeal are met. The same cannot be considered as an ancillary ruling after a final judgment. Moulder v. Steele, 118 Ga. App. 87 ( 162 S.E.2d 785); Hood v. General Shoe Corp., 119 Ga. App. 649 (2) ( 168 S.E.2d 326); Hill v. Willis, 224 Ga. 263, 266 ( 161 S.E.2d 281); Skylark Enterprises v. Marsh McLennan, 121 Ga. App. 235 ( 173 S.E.2d 421).
The rulings in Divisions 1 and 3 will require a reversal and a new trial. Since a new trial will be required, a number of the enumerations of error have not been considered since they may not occur again.
Judgment reversed in accordance with the above opinion. All the Judges concur in Division 1 except Bell, C. J., and Evans, J., who dissent. Bell, C. J., and Evans, J., concur in Division 2. Pannell, Deen and Quillian, JJ., concur specially. Jordan, P. J., Hall, P. J., Eberhardt and Whitman, JJ., dissent. All the Judges concur in Division 3 except Bell, C. J., and Evans, J., who dissent.