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Mack v. Nationwide Mutual Fire Insurance Company.5/18/1999
In the Court of Appeals of Georgia
MC-037
Plaintiff Nationwide Mutual Fire Insurance Company filed this declaratory judgment action seeking a ruling that it is not obligated to provide indemnification and a defense under a business owner's policy issued to defendant Mercury Appliance and Electronics, Inc. d/b/a Dean Forrest World Appliance and Electronics (hereafter "Mercury"). Rhonda Fordham Mack filed a class action against Mercury, and other corporate and individual defendants. As amended, her complaint alleges that she, and other members of the plaintiff class, had entered into retail installment contracts to finance purchases from Mercury, and that the interest charged and collected was at a rate in excess of the legal maximum in violation of the Retail Installment and Home Solicitation Act., OCGA ยง 10-1-1 et seq. Ms. Mack seeks to "be reimbursed for all finance charges on all financing agreements which contain excessive and illegal finance charges." Plaintiff has denied coverage for the circumstances complained of by Ms. Mack in her civil action against Mercury, but has provided Mercury with a defense subject to a reservation of rights. On behalf of herself and the plaintiff class, Ronda Bonham Mack appeals the grant of summary judgment in favor plaintiff. Held:
"We affirm, but our analysis varies somewhat from the superior court's analysis stated below. The insurance policy provides business liability coverage for `sums that the insured becomes legally obligated to pay as damages because of 'bodily injury ,' 'property damage,' 'personal injury' or advertising injury' to which this insurance applies.' We are concerned here only with that definition of "property damage" as ` oss of use of tangible property that is not physically injured.'"
The superior court analysis is based on a prudent and conservative assumption that the loss described in Ronda Bonham Mack's complaint may be "tangible property" under the policy. Based on this assumption, the superior court first concludes that the loss alleged by Ms. Mack is "property damage" as defined by the policy but concludes that coverage is precluded due to the "business risk" exclusion.
In our view, it is desirable to resolve the issue as to whether Ms. Mack's claim for loss of use of money relates to "tangible property" under the policy, and we conclude that it does not. Money is one of the great inventions of civilization without which life, as we know it, could not continue. It exists however, solely within our minds and thus cannot be touched, weighted, or seen. Therefore, it is not tangible, but is intangible. Most money exists only as a number recorded on a computer, the total of coins and notes in circulation represents but a small fraction of the money owned by governments, individuals, corporations, and others. The coins and notes which represent money are of little intrinsic value compared to the wealth they represent, yet we continue to accept them because of the confidence we repose in our government and society.
Money can be confused with tangible property only when there is a matter relating to specific coins or notes. Then we are concerned with a physical object which represents money, but the material object and cognitive concept of money may still be viewed separately. Some confusion arises, as demonstrated in Faircloth v. A. L. Williams & Associates, Inc., 206 Ga. App. 764, 766-768 (1) (426 SE2d 601), from the evolution of common law ideas in the face of modern electronic commerce. Original common law related actions for trover for conversion only to tangible things so that an action for conversion would lie only for withholding specific bills or coins and does not li
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