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NELSON et al. v. SOUTHERN GUARANTY INSURANCE COMPANY et al.
23259.
Injunction, etc. Muscogee Superior Court. Before Judge Davis.
COOK, Justice.
The express terms of an exclusion endorsement attached to the insurance policy issued by the plaintiff insurance company to the insured relieved the insurance company from any liability for accidents occurring while the son of the insured was driving, and the trial judge properly held that the public policy of this State at the time of the accident did not prohibit such an exclusion endorsement.
Southern Guaranty Insurance Company brought an action for declaratory judgment and injunction against James H. Nelson, Gerardo Otero, and Pacific Indemnity Company. On July 7, 1963, the plaintiff issued a policy of automobile liability insurance to Gerardo Otero, for a term from July 7, 1963, to July 7, 1964, covering two automobiles, which policy contained an exclusion endorsement as follows: "It is agreed that the insurance afforded by this policy shall not apply with respect to any claim arising from accidents which occur while any automobile is being operated by Ferdinand Otero, son, nor Gerardo A. Otero, Jr., son." On November 1, 1963, Gerardo A. Otero, Jr., was operating one of the automobiles covered by the policy, when he was involved in an accident with James H. Nelson, and a suit for damages was filed by Nelson against Gerardo A. Otero.
The plaintiff sought a declaration that it was not liable to provide any insurance coverage, or to defend any suit filed by Nelson, as a result of the accident on November 1, 1963. Pacific Indemnity Company was named as a defendant because it is subrogated to the rights of James H. Nelson against Gerardo Otero to the extent of payments made by Pacific Indemnity Company to James H. Nelson, on behalf of Nelson's employer, as required by the Workmen's Compensation Law. The plaintiff further sought a declaration that it is not bound to provide any insurance coverage or defense with respect to any lien or right of subrogation claimed by Pacific Indemnity Company. Injunction was prayed to maintain the status until the question of tide liability of the plaintiff could be adjudicated.
Answers were filed, and amendments to the answers and to the petition. The plaintiff and the defendant Nelson both filed motions for summary judgment. The trial judge granted the motion for summary judgment of the plaintiff and denied that of the defendant Nelson. In his judgment he declared that: The policy of insurance, including the endorsement, affords no coverage with respect to the automobile accident on November 1 1963, and imposes no obligation upon the plaintiff to defend any suit arising out of this accident, and imposes no obligation upon the plaintiff to pay any damages that might be recovered by James H. Nelson or Pacific Indemnity Company. Section 56-407A (c) of the Code (Ga. L. 1963, p. 588) is unconstitutional since it contains matter different from that expressed in the caption, in contravention of the Constitution, Art. III, Sec. VII, Par. VIII (Code Ann. 2-1908). All of the defendants were permanently enjoined from taking any action against the plaintiff to collect any sum of money as damages for injuries arising out of the accident of November 1, 1963.
James H. Nelson and Pacific Indemnity Company appealed from the judgment granting the motion for summary judgment of the plaintiff, and enumerated as error the rulings made in that judgment.
The General Assembly in 1963 passed an amendment to Code Ch. 56-4 (Ga. L. 1963, pp. 588-593). Section 56-407A (c) of this Act provided in part as follows: "No policy or contract of bodily injury liability insurance, or of property damage liability insurance, covering liability arising from the ownership, maintenance or use of any motor vehicle, shall be issued or delivered in this State to the owner of such vehicle, or shall be issued or delivered by any insurer licensed in this State, upon any motor vehicle principally garaged or principally used in this State, unless it contains a provision insuring the person named therein and any other person, as insured, using any of those motor vehicles with the express or implied permission of the named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of such motor vehicles . . ." This provision of Use 1963 Act was repealed by Ga. L. 1964, p. 306.
Existing and valid statutory provisions enter into and form a part of all contracts of insurance to which they are applicable, and in case of conflict between the policy and the statutory provisions, the latter control. Employers Liability Assurance Corp. v. Hunter, 184 Ga. 196, 202 (190 SE 598). It is therefore necessary to determine whether the section requiring omnibus clause coverage offended the Constitution, Art. 111, Sec. VII, Par. VIII (Code Ann. 2-1908).
The purpose of this constitutional provision is "to protect the people against covert or surprise legislation." Blair v. State, 90 Ga. 326, 329 (17 SE 96, 35 ASR 206); Central of Ga. R. Co. v. State of Ga., 104 Ga. 831, 845 (31 SE 531, 42 LRA 518). The caption of the 1963 Act (Ga. L. 1963, p. 588) is as follows: "An Act to amend Code Chapter 56-4, relating to the various kinds of insurance, limits of risks, and reinsurance, so as to provide that no automobile liability insurance policy shall be issued unless coverage is provided therein for the protection of the insured against loss caused by an uninsured vehicle; to provide the procedure connected therewith; to repeal conflicting laws; and for other purposes." This caption contains no language indicating that the insurance law described is amended generally. See Eubanks v. State, 217 Ga. 588 (124 SE2d 269). It states specifically that Code 56-407 is amended "so as to provide" coverage for the protection of the insured against loss caused by an uninsured vehicle. There is nothing in the caption to show that the amendment includes any insurance matter except those relating to uninsured vehicles. Section 56-407A (c) has no connection whatsoever with uninsured vehicles.
When the caption of an amendatory Act specifically limits the matters to be included in the amendment, and there is inserted in the body of the Act a completely unrelated provision of which the title gives no intimation, the constitutional prohibition against the passage of a law which "contains matter different from what is expressed in the title thereof" (Code Ann. 2-1908) is violated. McDuffie v. State, 87 Ga. 687 (13 SE 596); Dempsey v. State, 94 Ga. 766 (1) (22 SE 57); Hawkins v. State, 146 Ga. 134 (90 SE 968); Black v. Jones, 190 Ga. 95 (8 SE2d 385); Bray v. City of East Point, 203 Ga. 315 (46 SE2d 257); Cade v. State, 207 Ga. 135 (60 SE2d 763); Ball v. Peavy, 210 Ga. 575 (82 SE2d 143). The trial judge correctly held that 56-407A (a) of the 1963 Act was unconstitutional. It is thus as inoperative as if it had never been enacted. Frankel v. Cone, 214 Ga. 733, 738 (107 SE2d 819).
" 'Insurance contracts are governed by the same rules of construction or interpretation, for the purpose of ascertaining the intention of the parties, as apply to other contracts. Code 56-815; Golden v. National Life & Accident Insurance Co., 189 Ga. 79 (2), 87 (5 SE2d 198, 125 ALR 838). Where the terms and conditions of an insurance policy are unambiguous, the court must declare the contract as made by the parties. Penn Mutual Life Insurance Co. v. Marshall, 49 Ga. App. 287 (1) (175 SE 412). Where the meaning is plain and obvious, it should be treated as literally provided therein. Daniel v. Jefferson Standard Life Insurance Co., 52 Ga. App. 620 (2) (184 SE 366).' Genone v. Citizens Ins. Co. of N. J., 207 Ga. 73, 86 (1) (60 SE2d 125)." Queen Ins. Co. v. Nalley Discount Co., 215 Ga. 837 (1) (114 SE2d 21).
It is not disputed that the insurance policy issued by the plaintiff to Gerardo Otero contained an exclusion endorsement which provided that the plaintiff would not be liable for any accident occurring while the two named sons of Gerardo Otero were driving the automobiles insured, and the insured received a reduction in the cost of his policy because of this exclusion provision. The trial judge did not err in granting the summary judgment in favor of the plaintiff, holding that it was not liable for any damages which might be recovered against Gerardo Otero by reason of the accident of November 1, 1963, which occurred while his son Gerardo Otero, Jr., was driving his automobile.
Since by the unambiguous terms of the insurance contract between the plaintiff and Gerardo Otero no protection was afforded Gerardo Otero while his son, Gerardo Otero, Jr., was driving the automobiles insured, it would not be material on the question of the liability of the plaintiff whether or not at the time of the accident on November 1, 1963, an emergency situation existed requiring Gerardo Otero, Jr., to drive for his father, or Gerardo Otero directed the manner in which his son drove, or made his son his agent in driving the insured automobile.
Judgment affirmed. All the Justices concur.
Swift, Pease, Davidson & Chapman, Bay, Owens, Keil & Hirsch, W. G. Scranton, Jr., Max R. McGlamry, for appellees.
Kelly, Champion & Henson, John W. Denney, for appellants.
SUBMITTED DECEMBER 13, 1965 -- DECIDED FEBRUARY 23, 1966.
Friday May 22 20:23 EDT


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