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GLOBE LIFE & ACCIDENT INSURANCE COMPANY v. OGDEN.
73864.
BENHAM, Judge.
Action on policy. Wayne State Court. Before Judge Gordon.
At trial, the parties agreed that as to Count I the trial court could direct a verdict in appellee's favor for $3,000 in general damages for the amount owed under the insurance contract, $1,335.74 penalties and interest, and $7,000 attorney fees; and that there would be no general damages under Count II. The trial proceeded on Count II with appellee seeking punitive damages based on the general damages awarded on Count I. The jury returned a verdict of $25,000 punitive damages, and based on that verdict along with the directed verdict as to the other issues, judgment was entered accordingly. After denial of its motion for directed verdict and j.n.o.v., appellant brought this appeal.
1. In appellant's first three enumerations of error, it claims that the trial court erred in denying its motions for directed verdict and j.n.o.v. as to Count II of appellee's complaint and on the issue of punitive damages. We agree. Count II was based on allegations of fraudulent conduct on appellant's part by its agent's taking of appellee's premiums and converting them to his own benefit with intent to damage appellee, and by failing to pay her insurance claim. Appellant sought actual and punitive damages on this count, in addition to those sought under OCGA 33-4-6 in Count I.
App. 123 (253 SE2d 775) (1979).
Appellee argues that punitive damages, in addition to those damages specifically provided for in OCGA 33-4-6 as set out above, are authorized where an insurer is guilty of a bad faith refusal to pay under the terms of an insurance policy, and cites Kilgore v. Nat. Life &c. Ins. Co., 110 Ga. App. 280 (138 SE2d 397) (1964). We do not read Kilgore as allowing any punitive damages other than those specifically prescribed in OCGA 33-4-6.
As we held above, the remedy is exclusive in the absence of some special relationship of the parties. Tate v. Aetna Cas. &c. Co., supra. In accordance with our analysis, we affirm the judgment as to Count I and reverse as to Count II, the portion of the judgment allowing $25,000 punitive damages.
2. Appellant's last enumeration contends that the trial court erred in allowing evidence concerning its rejection of appellee's claims under the contract, since such evidence was prejudicial to appellant on the issue of punitive damages under the fraud claim. Our decision in Division 1 of this opinion renders this enumeration of error moot.
Rudolph J. Chambless, Vernon L. Chambless, for appellee.
Kenneth R. Carswell, for appellant.
DECIDED APRIL 23, 1987 -- REHEARING DENIED MAY 5, 1987 -- CERT. APPLIED FOR.
Thursday May 21 13:44 EDT


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