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Action on insurance policy. Savannah City Court. Before Judge Oliver.
1. An implied waiver of proof of loss forms required in a policy of insurance may result from silence and a course of conduct on the part of the insurance company leading the insured to believe that nothing further in regard to proof of his claim is required of him. Whether the conduct of the adjuster for the insurance company in this case amounted to waiver is a jury question.
2. The statutory demand for payment of the proceeds of an insurance policy must be made at a time when a demand for immediate payment is in order. It is not in order if the insurer, under the terms of the insurance policy, has additional time left in which to investigate or adjust the loss and therefore has no legal duty to pay at the time the demand is made. If, however, the demand is good when made, it will not thereafter be rendered ineffective by the voluntary act of the insured in complying with policy terms which were in fact the subject of a prior waiver by the insurer.
It appears from the pleadings in this case, on which the motion for summary judgment was entered, that the plaintiff sustained a fire loss in the sum of $7,500 on November 8, 1962; that he gave the defendant insurer immediate notice, subsequent to which an adjuster was sent out and given substantially the information required by the insurance contract to be incorporated in a sworn proof of loss; that he inquired whether any further information was needed but did not receive an affirmative reply; that he requested proof of loss forms which he might fill out from time to time from November 10 to December 21, but received no response; that the claim was not paid and he turned it over to his attorney who made a statutory demand for payment to the insurer on January 3, 1963; that the company then replied by mailing proof of loss forms which were filled out and returned, being received by the defendant on January 8, 1963; that nothing further was done and the plaintiff filed suit on March 8, 1963. Defendant then tendered the $7,500 into court but moved for summary judgment against the plaintiff as to the recovery sought for penalty and attorney fees for the alleged bad faith of the defendant in refusing to pay the claim. This motion was granted and the plaintiff excepts.
1. The motion for summary judgment on the issue of attorney fees and penalty is based on the following provision of the insurance policy: "The amount of loss for which this company may be liable shall be payable 60 days after proof of loss, as herein provided, is received by this company and ascertainment of the loss is made either by agreement between the insured and this company expressed in writing or by the filing with this company of an award as herein provided." The plaintiff contends that this policy provision is ineffective because it was waived by the adjuster who has presumptive authority to waive proof of loss. Corp. of the Royal Exchange Assur. v. Franklin, 158 Ga. 644, 654 (124 SE 172, 38 ALR 626); Aetna Ins. Co. v. Mosely, 47 Ga. App. 25, 30 (169 SE 695). An implied waiver of proof of loss may result from silence and nonaction when the plaintiff requests but does not receive proof of loss forms, leading him to believe that nothing further is required, or when there is a course of conduct inconsistent with the position that the insurer is insisting on proof of loss in strict accordance with the policy provisions. Travelers Fire Ins. Co. v. Robertson, 103 Ga. App. 816 (1) (120 SE2d 657); Barkley v. American Nat. Ins. Co., 36 Ga. App. 447 (136 SE 803).The plaintiff here alleges that on several occasions, and particularly on December 21, 1963, he requested proof of loss forms and that the adjuster refused to provide them; the refusal, based on other allegations of the petition, was not explicit but resulted from the lack of response to this request and to other queries as to whether any further information was desired. Silence under these circumstances may amount to waiver. Fireman's Fund Ins. Co. v. Hardin, 40 Ga. App. 275 (149 SE 318). If it is a waiver of proof of loss, then it is also a waiver of the policy provision relating to proof of loss, and carries with it the stipulation above quoted that the company has 60 days from the filing of such forms within which to pay. Government Employees Ins. Co. v. Hardin, 108 Ga. App. 230 (132 SE2d 513). This case, like that one, differs from State Farm Fire &c. Co. v. Thain, 108 Ga. App. 104 (132 SE2d 148) in that in Thain no demand after filing or waiver was alleged. In the present case, however, this court does not hold as a matter of law that there was a demand following the waiver, even assuming all the allegations of the petition to be true. Under these circumstances a waiver would not result except through course of conduct and it would be a jury question whether the failure of the defendant to indicate that it required written forms, continued after the loss was reported but particularly from December 21, when the last demand was made, until the date when the defendant replied to the letter of plaintiff's attorney demanding payment (probably January 6, 1964) was such an unreasonable delay in replying to the plaintiff's inquiries as to amount to a waiver of the right to insist on the reception of proof of loss forms.
2. As to damages and attorney fees "the penalty accrues by virtue of a demand, and the demand must be made at a time when a demand for immediate payment is in order." American Nat. Ins. Co. v. Brantley, 38 Ga. App. 505 (2) (144 SE 332). The demand here was made on January 3, 1964. Whether or not it was a good demand depends on whether it was made at a time when immediate payment could be exacted, and this depends on whether or not the defendant had lost the benefit of its 60 days contracted for under the policy after the reception of proof of loss forms, which in turn depend on whether the filing (not merely the time of filing) of such forms was waived. If a jury should find that it was, then the demand was good. If the defendant waived the policy provision at all it could not thereafter insist on it for any purpose. New York Underwriters Ins. Co. v. Noles, 101 Ga. App. 922, 925 (115 SE2d 474); Sentinel Fire Ins. Co. v. McRoberts, 50 Ga. App. 732 (179 SE 256). If there was indeed a waiver, and the statutory demand was good when made, the fact that the plaintiff through his attorney thereafter acceded to the request of the company and forwarded proof of loss forms on January 8 did not reinstate the defendant's right to demand a 60 day investigation period thereafter under the policy provision relating to proof of loss; all it has was the 60 days following the demand as specified in Code Ann. 56-1206. These issues must be determined on the trial of the case. It was error to grant the defendant's motion for summary judgment.
Judgment reversed. Nichols, P. J., and Hall, J., concur.
Hitch, Miller, Beckmann & Simpson, Luhr G. C. Beckmann, Reginald Haupt, contra.
Lewis, Wylly & Javetz, Emanuel Lewis, for plaintiff in error.
Friday May 22 21:48 EDT

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