Opinion
41079.
DECIDED FEBRUARY 19, 1965.
Action on insurance policy. DeKalb Civil and Criminal Court. Before Judge Mitchell.
Thomas E. Moran, for plaintiffs in error.
Bryan, Carter, Ansley Smith, John S. Langford, Jr., contra.
1. The verdict was authorized by the evidence.
2. A charge of an exclusionary provision of the policy relied on by the defendant was not error.
3. A charge on the authority of an adjuster, though not adjusted to the pleadings or the evidence, was not harmful to the plaintiff, who contended that there was evidence in that area. (See concurring opinion).
DECIDED FEBRUARY 19, 1965.
In a suit on a builder's risk insurance policy it was alleged that plaintiffs were constructing several stores in Cherokee Shopping Center and had completed the exterior structure of one of them. The sidewalk area in front of this store had been filled with dirt that backed up against a wall which supported the front of the store. Preparations had been made for the pouring of concrete over this area the following day. However, a severe thunderstorm came in the early evening with a downpour of rain. The wall that retained the fill dirt collapsed and with it the front end of the store. The issue was what had caused the wall to collapse.
The policy covered wind damage, but excluded water damage caused by flood, surface water, other bodies of water, or spray from any of these — whether driven by wind or not, water which backs up through sewers or drains, water below the surface of the ground including that which exerts pressure on foundations, walls, etc.
Plaintiffs contended that a tornadic condition obtained during the thunderstorm which caused a partial vacuum around the store and that the building "exploded" from the inside pressure, causing the break of a water pipe near the front of the building and that the water from the pipe caused the damage. Defendant contended that the collapse of the supporting wall and store above resulted from the hydrostatic pressure of surface waters that gathered in great quantities on the fresh fill dirt, filling the excavation which the dirt occupied.
The evidence was in sharp conflict as to whether there had been any wind of significance during the thunderstorm and there was expert testimony that the hydrostatic pressure of surface water had been the cause of the loss.
A verdict for the defendant was returned and plaintiffs moved for a new trial urging, in addition to the general grounds, that the court had erred in two respects in charging the jury.
1. There is no merit in the general grounds. A factual question was presented and the jury resolved it in favor of the defendant.
2. There is exception to a charge "if you find that the damage sustained by the plaintiff in this case was caused by flood, surface water, water backed up through sewers or drains, water below the surface of the ground including that which exerts pressure on or flows, seeps or leaks through sidewalks, driveways, walls, foundations, basement or other floors, or through doors, windows, or any other opening in such sidewalks, driveways, foundations, walls or floors, then the plaintiff is not entitled to recover and your verdict should be in favor of the defendant."
The exceptions are that it tended to mislead and confuse the jury, was not adjusted to and was unsupported by the evidence. We cannot agree. The language of the charge is substantially that of express exclusions contained in the policy which were the basis for the defendant's main defense. Metropolitan Life Ins. Co. v. Crowder, 71 Ga. App. 612 (1) ( 31 S.E.2d 618). Thus it would appear that failure to charge in this respect would have been error. Central Railroad v. Harris, 76 Ga. 501. We see nothing misleading or confusing in it. It was amply authorized.
3. A charge that "an insurance adjuster has no authority, apparent or otherwise, to settle a claim or to assume responsibility for a claim which is clearly not within the coverage of the insurance policy," is a correct statement of the law. Assurance Co. of America v. Bell, 108 Ga. App. 766 ( 134 S.E.2d 540). Plaintiff's superintendent testified that defendant's adjuster came to the scene shortly after the damage occurred and after looking over the situation and making some investigation, stated to him: ". . . there is nothing to do but for you folks to go ahead, get your barricades built and start shoring, getting ready for use, because it has to be completed," and that "he gave instructions to proceed." The statement amounted to no more than the adjuster's opinion of what the plaintiffs should do. It was not an authorization to proceed on the basis of liability under the policy, particularly when the facts indicate that the loss was not within the coverage, but even if it had been so intended the adjuster's authority is limited to the settlement or adjustment of losses within the coverage. Beyond that he could not bind the company.
In my opinion the contentions made by plaintiff as to the effect of this evidence and defendant's denial of coverage rendered the charge appropriate. But even if not adjusted to the pleadings and the evidence, as is pointed out in the concurring opinion, the giving of the charge was not harmful.
Judgment affirmed. Nichols, P. J., and Pannell, J., concur as to Divisions 1 and 2 and concur specially as to Division 3.
I concur in the result reached, but cannot agree with the reasons for the disposition of the assignments of error to the charge in the third division of the opinion. The assignment of error on the charge contained in the motion for new trial reads as follows:
"Movant avers that said charge was erroneous and not sound as an abstract principle of law, and on the further ground that said charge tended to confuse and mislead the jury in that it is not adjusted to the pleadings and the evidence, and is wholly unsupported by the pleadings or the evidence and therefore the court erred in so instructing the jury and allowing the jury to predicate its verdict thereon."
Pretermitting the question as to whether the assignments of error are sufficient to present a question for decision by this court other than that portion assigning error on the ground that the charge was not sound as an abstract principle of law, and, assuming that the charge is sound as an abstract principle of law under the authority of Assurance Co. of America v. Bell, 108 Ga. App. 766 ( 134 S.E.2d 540), it was nevertheless not adjusted to the pleading and the evidence for the reason that, as the opinion states, there was no evidence that the adjuster settled the claim or assumed responsibility for the claim, and there was no pleading to this effect, although such a contention may have been orally made upon the trial of the case. However, this error was harmless to plaintiff for the plaintiff apparently was contending that there was such evidence. Any error at this point was favorable to plaintiff. Even if there were no evidence that the claim was not within the coverage, so as to make the charge inapplicable for that reason, this would not make the charge harmful to plaintiff, when no proof was offered as to any settlement or assumption of liability having been made. The charge was not appropriate to the issues made by the pleading and the evidence, but the error, if any, was harmless to the complaining party.