FOURTH DIVISION

BOGGS, J.

RAY and McMILLIAN, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules/

July 1, 2015

In the Court of Appeals of Georgia

A15A0182. COTTINGHAM & BUTLER, INC. v. BELU. BO-079

BOGGS, Judge.

Aron and Lidia Belu, d/b/a Express Auto Transport, sued their insurance

agents, Cottingham & Butler, Inc. and Cottingham & Butler Insurance Services, Inc.

(collectively, “C&B”), for negligence and breach of contract in connection with their

purchase of an insurance policy. C&B subsequently moved for summary judgment.

The trial court denied the motion, and we grantedC&B’s application for interlocutory

review. For reasons that follow, we affirm.

Summary judgment is appropriate when no genuine issues of material fact

remain and the moving party is entitled to judgment as a matter of law. See Rogers

& Sons v. Santee Risk Managers, 279 Ga. App. 621, 622 (631 SE2d 821) (2006). On

appeal, we review a trial court’s summary judgment ruling de novo, construing the
evidence and all reasonable inferences in the light most favorable to the nonmovant.

See id.

So viewed, the evidence shows that the Belus emigrated to the United States

fromRomania in 1986. Once in America, they obtained commercial driver’slicenses,

bought a truck, and began driving for various companies. In 2002, the Belus formed

their own truck driving business, Express Auto Transport(“Express Auto”), with Mr.

Belu and Mrs. Belu’s brother driving the trucks, and Mrs.Belu handling office duties. 

At some point, Mrs. Belu called C& B and “asked them to sell [her] all the

coverage” that she and her husband needed to protect their business. She told C&B

that they “wanted a policy which covers everything, the trucks, the cars, the cargo .

. . physical damage, liability, general liability, everything.” Mrs. Belu, however, did

not request particular coverage because she was not an expert. Instead, C&B’s

representative told her what she needed, and she purchased the recommended

coverage. According to Mrs. Belu:

When we were getting our insurance, [the C&B representative] would

ask me “What kind of business you do?” and then tell me “You need

this, and this, and this, and then you are covered, don’t worry.” He

would tell me what I need in this kind of business. 

2
C&B procured several policies for the Belus, including a cargo insurance

policy issued by Underwriters at Lloyd’s, London (“Lloyd’s”). Mrs. Belu testified

that she looked over the policies and is “pretty sure” she read them, but cannot

remember “a hundred percent.” Mr. Belu did not read the policies in their entirety. 

In December 2007, while the Belus were insured by the Lloyd’s cargo policy,

a truck carrying a load of vehicles for Express Auto caught fire, damaging the

vehicles. The vehicle owners sued Express Auto, and the Belus filed a claim under

the cargo policy. Although Lloyd’s eventually paid the Belus a certain amount to

settle the lawsuits, it refused to assume the cost of defense. To support this refusal,

Lloyd’s cited the following policy provision:

PRIVILEGE TO ADJUST WITH OWNER – In the event of loss or

damage to property of others held by the Insured for which claim is

made upon the Underwritersthe right to adjustsuch loss or damage with

the owner or owners of the property is reserved to the Underwriters and

the receipt of such owner or owners in satisfaction thereof shall be in

full satisfaction of any claim of the Insured for which such payment has

been made. If legal proceedings be taken to enforce a claim against the

Insured as respects any such loss or damage, the Underwriters reserve

the right at their option without expense to the Insured, to conduct and

control the defense on behalf of and in the name of the Insured. No

action of the Underwriters in such regard shall increase the liability of

3
the Underwriters under this Policy, nor increase the limits of liability

specified in the Policy. 

(Emphasis supplied.)

Lloyd’s filed a declaratory judgment action in federal district court, seeking a

determination that it had no duty to defend the Belus in the lawsuits. See Certain

Underwriters at Lloyd’s, London v. Belu, 2009 U. S. Dist. LEXIS 77282, at *5 (N.

D. Ga. 2009). Based on the provision quoted above, the district court found that “the

unambiguous language of the policy plainly meansthat the insurer has the option not

to provide a defense.” Id. at *12. It thus concluded that Lloyd’s was not required to

defend the Belus. See id.

Following the district court’sruling, the Belus suedC&B, alleging that itfailed

to procure adequate insurance coverage that included a duty to defend. C&B moved

for summary judgment. It argued that the Belus were obligated to read the policy and,

if they had, they would have known that Lloyd’s had the option – not a duty – to

defend them against any claims. The trial court denied the motion, but issued a

certificate ofimmediate review.We grantedC&B’sinterlocutory application, and this

appeal followed. 

4
1. As a general rule, an insurance agent who procures insurance, but fails to

obtain all of the requested coverage, is insulated from liability if the insured does not

read the policy. See Turner, Wood & Smith v. Reed, 169 Ga. App. 213, 214 (311

SE2d 859) (1983). This is because an insured has a duty to read and examine an

insurance policy to determine whether it provides all of the coverage sought. See

Traina Enterprises v. Cord & Wilburn, Inc., 289 Ga. App. 833, 837 (2) (658 SE2d

460) (2008). The general rule, however, has several exceptions, including:

when the agent has held himself out as an expert and the insured has

reasonably relied on the agent’s expertise to identify and procure the

correct amount or type of insurance, unless an examination of the policy

would have made it readily apparent that the coverage requested was not

issued.

(Citation, punctuation, and footnote omitted.) Id.

1

The Belus argued below, and the trial court found, that regardless of whether

they read the Lloyd’s policy, questions of fact remain as to their reliance on C&B’s

1

“Other exceptions apply when an agent intentionally misrepresents the

existence or extent of coverage or when the evidence reflects a special relationship

of trust or other unusual circumstances which would have prevented or excused

plaintiff of his duty to exercise ordinary diligence to ensure that no ambiguity existed

between the requested insurance and that which was issued.” (Citation, punctuation,

and footnote omitted.) Id.

5
expertise in identifying and procuring adequate insurance for them. C&B challenges

this finding on appeal, asserting that it was entitled to summary judgment because,

as a matter of law, it never offered expert advice to the Belus. We disagree.

C&B asserts that an insurance agency does not hold itself out as an expert

unless it “behave[s] more like a business partner with the insured: auditing a

company, analyzing their needs, and recommending a course of action.” It istrue that,

in several cases cited by C&B, the insurance agency reviewed business audits and

financial information in connection with coverage recommendations. See, e.g., Wright

Body Works v. Columbus Interstate Ins. Agency, 233 Ga. 268, 271 (210 SE2d 801)

(1974) (insurance agency reviewed annual business audits of insured to determine

whether insurance policies were sufficient); Jim Anderson & Co. v. ParTraining

Corp., 216 Ga. App. 344, 345 (1) (454 SE2d 210) (1995) (insurance agency reviewed

insured’s financial information to ascertain appropriate coverage and had discretion

to adjust coverage). Our case law, however, does not limit the expertise exception to

the narrow scope suggested by C&B. 

In McCoury v. Allstate Ins. Co., 254 Ga. App. 27, 29 (2) (561 SE2d 169)

(2002), for example, we found that an insurance agent was not entitled to summary

judgment on a negligent procurement claim because the insured parties offered

6
evidence that they relied on the agent’s expertise in determining whether coverage

was adequate. And in Hunt v. Greenway Ins. Agency, 213 Ga. App. 14, 15 (443 SE2d

661) (1994), summary judgment for the insurance agency was appropriate when the

insured presented “no evidence that the agent had any discretion in the type of

insurance procured or that the proposed insured relied on the agent to decide what

type of insurance was needed.” Nothing in these or similar cases restricts the

expertise exception to situations involving the equivalent of a business partnership

between the insured and the insurance agency, or requires that an insured “turn[] his

business records over to an agent,” as C&B contends. On the contrary, the exception

applies when an insurance agent “has undertaken to perform an additional service,”

beyond merely procuring specified insurance, “such as determining the amount of

insurance required, and the insured relies upon the agent to perform that service.”

Fregeau v. Hall, 196 Ga. App. 493, 494 (396 SE2d 241) (1990). 

The Belus presented at least some evidence they that relied on C&B to assess

their insurance needs in this case. According to Mrs. Belu, she did not request any

particular amount of coverage. She depended upon a C&B representative to

determine the type and amount of insurance Express Auto needed. And once the

representative made that determination, he instructed her not to worry because she

7
was “covered.” AlthoughC&B claimsthat itsimply procured insurance for the Belus,

this evidence raises questions of fact as to whether the agency went beyond mere

procurement and offered expert advice upon which the Belus relied. See McCoury,

supra; compare Traina, supra at 838 (2) (no evidence of reliance on insurance

agency’s expertise where insured calculated amount and type ofinsurance needed and

did not authorize agent to assess these needs, offer recommendations, or adjust

coverage); Brasington v. King, 167 Ga. App. 536, 538 (1) (307 SE2d 16) (1983) (no

expertise exception where agent did not “complete any analysis of plaintiff’s

insurance needs”), aff’d, King v. Brasington, 252 Ga. 109 (312 SE2d 111) (1984);

Ethridge v. Associated Mutuals, Inc., 160 Ga. App. 687, 689 (288 SE2d 58) (1981)

(expertise exception did not apply where insured told agent amount and type of

coverage he desired, leaving no discretion to agent).

2. Alternatively, C&B argues that the absence of a duty to defend was readily

apparent on the face of the cargo policy, precluding recovery. As noted by C&B, the

expertise exception only relieves the insured “of the responsibility to minutely

examine the policy.” (Citations and footnote omitted.) MacIntyre & Edwards, Inc. v.

Rich, 267 Ga. App. 78, 81 (1) (599 SE2d 15) (2004). Thus, if examination of the

policy would have made it “readily apparent that the insured did not get the coverage

8
he requested, the duty to read will still bar a lawsuit against the agent even if the

insured relied upon the agent’s expertise.” (Citations and footnote omitted.) Id.

According to C&B, the Belus’ policy clearly and unambiguously provided

Lloyd’s with an option to defend, rather than a duty to defend. Undoubtedly, the

absence of such duty may be inferred from the policy language giving Lloyd’s the

“option without expense to the insured to conduct and control the defense on behalf

of and in the name of the Insured.” . But the lack of duty is not specifically stated,

only implied. Moreover, the provision at issue is located in the middle of a paragraph

entitled “PRIVILEGE TO ADJUST WITH OWNER”, and is combined with a

different provision, Lloyd’s stated intention to “conduct and control the defense

without expense to the insured.” Neither the paragraph nor its heading explicitly

references or excludes a duty to defend, and Mrs. Belu testified that she did not

understand the operative language. 

We recognize that the federal district court adjudicating Lloyd’s declaratory

judgment action found that the policy language unambiguously gave Lloyd’s the

option not to defend the Belus as a matter of law. See Belu, supra. But even if the

option language wasfound to be unambiguous, the key inquiry is not whether a court

or an insurance expert could determine the import of the provision. Rather, here we

9
must consider whether “it would have been readily apparent to a layman reading the

insurance policy, based upon the plain and ordinary meaning of clear and

unambiguous language, that the risk causing the loss was not covered.” (Citations

omitted.) Atlanta Women’s Club v. Washburne, 207 Ga. App. 3, 5 (427 SE2d 18)

(1992). Given the phrasing of the option language, its location in the middle of a

paragraph entitled “Privilege to Adjust with Owner,” and Mrs. Belu’s testimony that

she did not fully comprehend the paragraph, we agree with the trial court that a jury

question remains on this issue. See Jim Anderson & Co., supra, 216 Ga. App. at 345-

346 (2) (jury question remained asto whether lack of coverage wasreadily apparent);

compare Rogers,supra, 279 Ga. App. at 627 (2) (lack of coverage for machinery was

readily apparent, given separately listed policy language, in large print, that explicitly

and repeatedly drew insured’s attention to coverage requirement); MacIntyre &

Edwards, supra, 267 Ga. App. at 81 (1) (policy change was readily apparent when

renewal endorsement outlined changes, accompanying memorandum offered further

explanation, as well as bold-faced type drawing insured’s attention to change, and

insured, an insurance executive, admitted he would have understood the change had

he read the renewal information). Accordingly, the trial court properly denied C&B’s

motion for summary judgment.

10
Judgment affirmed. Ray and McMillian, JJ., concur.

11