THOMPSON, Justice.
By way of Royal Capital Dev. v. Maryland Cas. Co., 659 F.3d 1050 (11
This question stems from a dispute over the proper interpretation under Georgia law of a contract insuring real property. The primary issue presented to this Court is whether our ruling in State Farm Mut. Auto. Ins. Co. v. Mabry, 274 Ga. 498, 556 S.E.2d 114 (2001), a case involving an automobile insurance policy wherein we held that a provision requiring the insurer to pay for loss to the insured's car required the insurer to also pay for any diminution in value of the repaired vehicle, is applicable. As the Eleventh Circuit observed, "the single question presented in this appeal is whether the Georgia courts would hold that the Mabry rule extends to standard insurance contracts for buildings." Royal Capital Development, 659 F.3d at 1052. For the reasons which follow, we hold that our ruling in Mabry is not limited by the type of property insured, but rather speaks generally to the measure of damages an insurer is obligated to pay.
The facts giving rise to this question are summarized as follows: Royal Capital owns an eight-story commercial building in the Buckhead area of Atlanta. In 2003, Royal Capital purchased the disputed insurance policy from Maryland Casualty to insure the building. After construction activity on an adjacent property caused physical damage to the building, Royal Capital submitted a timely claim under the policy to Maryland Casualty, seeking both the costs of repair and the post-repair diminution in value resulting from the damage. Maryland Casualty acknowledged that the damage to the building was a covered cause of loss under the policy and paid $1,132,072.96 to compensate Royal Capital for the estimated costs of repair. However, Maryland Casualty refused to acknowledge any responsibility to compensate Royal Capital for the alleged diminution in value of the property.
Royal Capital filed a one-count complaint in the Superior Court of Fulton County, Georgia and Maryland Casualty removed the case to the United States District Court for the Northern District of Georgia pursuant to 28 USC § 1332. Deferring discovery on the actual extent of the building's loss of value, the parties filed cross-motions for summary judgment on the narrow issue of whether the insurance contract allowed recovery of diminution of value damages in addition to the costs of repair under Georgia law. The district
On appeal, the Eleventh Circuit determined that the sole question presented was whether Royal Capital's insurance contract with Maryland Casualty required the insurer to pay for the alleged "diminution in value" of the insured building in addition to the costs of repair. Royal Capital, supra, 659 F.3d at 1052. In light of conflicting federal decisions
1. Royal Capital contends that pursuant to Mabry, the insurance coverage provided under the contract at issue extends to compensation for the building's diminution in value resulting from stigma due to the building's past physical damage, even after all repairs have been made. In Mabry, this Court determined that
274 Ga. at 506, 556 S.E.2d 114. As we noted in our decision, "[r]ecognition of diminution in value as an element of loss to be recovered on the same basis as other elements of loss merely reflects economic reality." Id. at 508, 556 S.E.2d 114.
These same principles have long been applied under Georgia law in cases involving the proper determination for measuring damages to real property. Empire Mills Co. v. Burrell Engineering & Constr. Co., 18 Ga.App. 253, 89 S.E. 530 (1916) (as a general rule the measure of damages in actions for real property is the difference in value before and after the injury to the premises). This Court has consistently held that the measure of damages in such cases is intended to place an injured party, as nearly as possible, in the same position they would have been if the injury had never occurred. John Thurmond & Assoc. v. Kennedy, 284 Ga. 469, 668 S.E.2d 666 (2008). See BDO Seidman v. Mindis Acquisition Corp., 276 Ga. 311(1), 578 S.E.2d 400 (2003); Redman Dev. Corp. v. Piedmont Heating, etc., 128 Ga.App. 447, 197 S.E.2d 167 (1973). Moreover, this Court has long considered diminution in value to be an element in determining the proper measure of damages to real property. See Thurmond, 284 Ga. at 470, 668 S.E.2d 666; see Harrison v. Kiser, 79 Ga. 588, 4 S.E. 320 (1887); Mercer v. J & M Transp. Co., 103 Ga.App. 141, 118 S.E.2d 716 (1961) (measuring damages by diminution in value where restoration would require construction of entirely new home).
In applying these principles, this Court has recognized that under Georgia law, cost of repair and diminution in value can be alternative, although often interchangeable, measures of damages with respect to real property. Thurmond, 284 Ga. at 471, 668 S.E.2d 666; Ray v. Strawsma, 183 Ga.App. 622, 623, 359 S.E.2d 376 (1987). More to the point in this case, in Thurmond we observed:
Thurmond, 284 Ga. at 471, fn. 2, 668 S.E.2d 666. Based on well-established precedent authorizing full recovery, including in some circumstances both diminution in value and cost of repair, we thus reject Maryland Casualty's contention that the contract at issue did not include coverage for post-repair diminution in value as no insurer or insured had reason to expect such coverage under a standard real property insurance policy.
2. Maryland Casualty relies upon the Georgia Court of Appeals decision in City of Atlanta v. Broadnax, 285 Ga.App. 430, 646 S.E.2d 279 (2007) as support for its argument that this Court intended to limit Mabry to automobile insurance contract cases. Broadnax involved a nuisance action brought against the City of Atlanta regarding flooding allegedly due to overflow from the city's combined system for drainage of sewer and storm water. Id. The Court of Appeals refused to allow the plaintiffs/homeowners to recover damages for both the diminution in value of their property due to the stigma of living in a flood prone area, as well as the costs of repair, holding that an award of both would constitute an impermissible double recovery of damages. Id. at 438-439, 646 S.E.2d 279. The Court of Appeals reached this decision after erroneously concluding that it was constrained from extending Mabry's rationale based on this Court's decision in Georgia Northeastern R. v. Lusk, 277 Ga. 245, 587 S.E.2d 643 (2003).
The question this Court addressed in Lusk was whether a diminution in value award based, in part, on the existence of a continuing nuisance for which sufficient damages to abate had already been awarded, would constitute impermissible double damages. In answering this question, we observed that in Georgia, "[a] plaintiff is entitled to only one recovery and satisfaction of damages, because such recovery and satisfaction is deemed to make the plaintiff whole." Lusk, 277 Ga. at 246, 587 S.E.2d 643. We reiterated that "different means of measuring damages are not to be so applied as to give double damages for the same thing." Id. We did not rule that Georgia law precludes a diminution in value award in addition to restoration and repair costs where the repair does not fully restore the property to its pre-damage value. Nor did we rule that "stigma" damages to property would constitute an impermissible double recovery, as "stigma" damages were not at issue in the Lusk case. Lusk, therefore, does not conflict with, nor limit Mabry. To the extent the Court of Appeals opinion in Broadnax holds otherwise, it is hereby disapproved. City of Atlanta v. Broadnax, supra, 285 Ga.App. 430, 646 S.E.2d 279.
3. Finally, we find no reason to distinguish Mabry from the instant case based on the alleged sophistication of the parties entering into insurance policies covering real property versus those who purchase automobile insurance policies. Although this case involves an insurance contract covering commercial property, a vast number of policies covering real property insure residential property for homeowners — a group far less sophisticated and more closely aligned to the automobile policyholders in Mabry.
4. We adhered in Mabry to the longstanding contract interpretation rule in Georgia
Question answered.
All the Justices concur.