Lumbermens Mutual Casualty Company “Lumbermens” sued Phuong Nguyen and her husband, Duy Nguyen, to recover damages incurred by Lumbermens under a surety bond. Lumbermens sued Mrs. Nguyen pursuant to a written indemnity agreement. The company also sued Mr. and Mrs. Nguyen, jointly, on a common law indemnity theory. Following a trial, Lumbermens moved for a directed verdict on all counts. The trial court granted the motion as to Mrs. Nguyen on the written indemnity agreement, but denied the motion as to Mr. Nguyen and granted a directed verdict in Mr. Nguyen’s favor. In Case Number A03A0330, Mrs. Nguyen appeals the directed verdict in Lumbermens’ favor. In Case Number A03A0331, Lumbermens appeals the directed verdict in Mr. Nguyen’s favor. As the two cases involve the same operative facts, we have consolidated them on appeal. For reasons that follow, we affirm.
A trial court is authorized to grant a directed verdict if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.1 Viewed in this light, the evidence shows that Mrs. Nguyen procured a mortgage brokers’ license, which required that she post a surety bond with the Georgia Banking and Finance Commission. Accordingly, Mrs. Nguyen applied to Lumbermens to obtain a surety bond in the amount of $50,000. The application contained an indemnity clause, which provided that the applicant would indemnify Lumbermens against any loss it incurred under the bond. The clause further provided that Lumbermens shall have the right, and is hereby authorized, but not required . . . to adjust, settle or compromise any claim, demand, suit or judgment upon said bond, unless the undersigned Mrs. Nguyen shall request the Company to litigate such claim or demand or defend such suit or to appeal from such judgment, and shall deposit with the Company collateral satisfactory to it in kind and amount. In August 1999, Hamilton Financial Services submitted a claim for payment for the full amount of the bond. According to Hamilton Financial, a routine audit revealed that loans procured through Mrs. Nguyen had been fraudulently obtained. Specifically, Hamilton Financial discovered that Mr. Nguyen had falsified tax returns, which were then used in connection with loan applications. Hamilton Financial informed Lumbermens that it sustained damages of over $28,000 as a result of auditing expenses and attorney fees. Hamilton Financial also forwarded to Lumbermens a copy of a letter from Trustcorp Mortgage Company, which had purchased fraudulent loans from Hamilton Financial, demanding that Hamilton Financial repurchase 21 loans. The estimated loss to Hamilton Financial for repurchasing those loans was over $168,000. However, Hamilton Financial never actually repurchased the loans.
