Shelby Insurance v. Ford
Shelby Insurance v. Ford
Opinion of the Court
Karenna Marie Ford was injured on the premises of a day care center operated by KDC, Inc., a corporation owned by appellee Cain and her husband. Acting by next friend, Ford sued Cain and the corporation. The corporation had no insurance coverage, but appellant had issued to Cain individually a policy which provided coverage to her as an individual “only with respect to the conduct of a business of which you are the sole owner.” Appellant denied coverage under that policy on two grounds: because of lack of timely notice of the injury and because the entity operating the day care center was not a named insured under the policy. Ford filed a declaratory judgment action to determine coverage and both sides moved for summary judgment.
No hard and fast rule can be laid down, but it seems clear that so long as the law authorizes the formation of subservient corporations, the law would defeat its own purpose by disregarding its own creature merely because a parent corporation, or other sole owner, controls the subsidiary, or one-man corporation, and uses it and controls it to promote his or its ends. [Cit.]
ITT Bus. Sues. Corp. v. Roberts, 184 Ga. App. 764, 767 (362 SE2d 496) (1987).
[A] corporation is an artificial person created by law. The corporate identity is entirely separate from the identity of its officers and stockholders. A corporation and even its sole owner are two separate and distinct persons. [Cit.]
Thrift v. Maxwell, 162 Ga. App. 237, 239 (290 SE2d 301) (1982). “ ‘One person may own all the stock of a corporation, and still such individual shareholder and the corporation would, in law, be two separate and distinct persons.’ [Cits.]” Keller Bldg. Products v. Young, 137 Ga. App. 682 (1) (b) (224 SE2d 815) (1976).
The evidence is clear in this case that there is no contract of insurance between appellant and KDC, Inc., the entity which operated
Judgment reversed.
Although the stock in the subchapter S corporation is owned by Cain and her husband, the Court of Appeals invoked the rule in 26 USC § 1361 (c) (1) that, for the purpose of determining the number of shareholders for a subchapter S corporation, “a husband and wife (and their estates) shall be treated as 1 shareholder.”
Dissenting Opinion
dissenting.
I agree with the Court of Appeals’ conclusion that as the sole shareholder of the corporation, “[Cain] was the sole ‘owner’ of the corporation” within the meaning of the insurance policy, and that such a finding “is not synonymous with a finding that the corporate veil has been pierced.” Shelby Ins. Co. v. Ford, 212 Ga. App. 303, 304 (441 SE2d 764) (1994).
Under Georgia law, “contracts of insurance are to be construed strictly against the insurer and in favor of the insured when language contained therein is susceptible to two or more constructions. Where the insurer grants coverage to an insured, it must define any exclusions in its policy clearly and distinctly. [Cits.]” American Southern Ins. Co. v. Golden, 188 Ga. App. 585, 586 (373 SE2d 652) (1988).
Lumbermens Mut. Cas. Co. v. Plantation Pipeline Co., 214 Ga. App. 23, 29 (447 SE2d 89) (1994). In my view, “sole owner” is susceptible to more than one definition (as evidenced by the difference of opinion between this court and the Court of Appeals), and the insurer has failed to adequately define an exception to coverage. Thus, the policy must be liberally construed in favor of the insured.
Construing a similar provision, the Second Circuit Court of Appeals considered the application of an insurance policy to a corporation, where the language of the policy limited coverage to “a business of which [the insured individual] is the sole proprietor.” State of N. Y. v. Blank, 27 F3d 783, 792 (2nd Cir. 1994). The court held that
In this case Cain is the sole shareholder and president of the corporation, and exercised close control over the operations of the day care center. I would hold that the insurance policy covered Cain’s corporation.
I am authorized to state that Justice Hunstein and Justice Thompson join in this dissent.
Reference
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- SHELBY INSURANCE COMPANY v. FORD Et Al.
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