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Henderson v. Georgia Farm Bureau Mutual Insurance Co.

Court of Appeals of Georgia

July 16, 2014

HENDERSON et al.
v.
GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY

Homeowner's insurance. Lincoln Superior Court. Before Judge Dunaway.

Tucker Long, John B. Long, for appellants.

Swift, Currie, McGhee & Hiers, Mark T. Dietrichs , Melissa K. Kahren, for appellee.

ELLINGTON, Presiding Judge. Phipps, C. J., Barnes, P. J., and McFadden, J., concur. Andrews, P. J., Ray and McMillian, J J., concur specially and in judgment only as to Division 1 and dissent as to Divisions 2 and 3.

OPINION

Page 107

Ellington, Presiding Judge.

Jennifer and Lee Henderson filed this action in the Superior Court of Lincoln County against Georgia Farm Bureau Mutual Insurance Company, seeking benefits under their homeowners' insurance policy for water damage to their home and for their loss of use, statutory penalties for Georgia Farm Bureau's alleged bad faith in refusing to pay benefits, and attorney fees. A jury found in favor of the Hendersons and awarded them $27,799 for damage to the structure not already paid by Georgia Farm, $8,400 for their loss of the use of the property, $6,000 in penalty for Georgia Farm Bureau's bad faith in refusing to pay a covered loss, and $35,000 in attorney fees. Georgia Farm Bureau filed a motion for judgment notwithstanding the verdict, arguing, inter alia, that there was no evidence that the Hendersons' home sustained any water damage that was separate and distinct from mold damage, for which Georgia Farm Bureau paid benefits under a special rider. After a hearing, the trial court granted Georgia Farm Bureau's motion for judgment notwithstanding the verdict " in its entirety[.]" The Hendersons appeal, and, for the reasons explained below, we reverse.

A motion pursuant to OCGA § 9-11-50 (b) for judgment notwithstanding the verdict may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a " one-way" verdict proper, judgment [notwithstanding the verdict] should not be awarded.

( Citation and punctuation omitted.) Fertility Technology Resources v. Lifetek Med., 282 Ga.App. 148, 149 (637 S.E.2d 844) (2006).

The appellate standard for reviewing the grant of a judgment notwithstanding the verdict is whether the evidence, with all reasonable deductions therefrom, demanded a verdict contrary to that returned by the factfinder. If there is any evidence to support the jury's verdict, viewing the evidence most favorably to the party who secured the verdict, it is error to grant the motion.

( Citations and punctuation omitted.) Mosley v. Warnock, 282 Ga. 488 (1) (651 S.E.2d 696) (2007).

[328 Ga.App. 397] Viewed in the light most favorable to the Hendersons, the record shows the following. Georgia Farm Bureau agreed to cover the Hendersons " against risks of direct loss to property ... if that loss is a physical loss of property[.]" Losses caused by " [c]onstant or repeated seepage or leakage of water or the presence of condensation or humidity, moisture or vapor, over a period of weeks, months or years[,]" (hereinafter, " seepage of water, etc." ) were included among the Perils Insured Against (hereinafter, " the covered risks" ) as long as such seepage of water, etc. " and the resulting damage is unknown to all 'insureds' and is hidden within the walls or ceilings or beneath the floors or above the ceilings of a structure." The policy limit for such seepage of water, etc. was $153,500. Otherwise, that is, for seepage of water, etc. and resulting damage that was known to an insured or was not hidden, the policy provided no coverage for losses caused by seepage of water, etc.

In addition to this coverage, the Hendersons, for an additional premium, opted for additional coverage for " ensuing mold, fungi or bacteria caused by or resulting

Page 108

from" one of the covered risks (hereinafter, " ensuing mold" ); as noted above, the covered risks included seepage of water, etc. where the resulting damage was unknown to all insureds and hidden as defined by the policy.[1] The limit of such ...


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