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Lawskills.com Georgia Caselaw
GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. BONEY.
41838.
EBERHARDT, Judge.
Action on insurance policy. Chattooga Superior Court. Before Judge Coker.
1. Where the verdict is a suit on an insurance policy is for substantially less than the amount claimed in the proof of loss and less than the amount demanded in the petition, no recovery for damages and attorney's fees is authorized. Southern Mut. Ins. Co. v. Turnley, 100 Ga. 296 (27 SE 975); Love v. National Liberty Ins. Co., 157 Ga. 259, 271 (121 SE 648); Queen Ins. Co. v. Peters, 10 Ga. App). 289 (4) (73 SE 536); Atlanta Life Ins. Co. v. Jackson, 34 Ga. App. 555 (6) (130 SE 378); Twin City Fire Ins. Co. v. Wright, 46 Ga. App. 537, 548 (167 SE 891); Fireman's Ins. Co. v. Larsen, 52 Ga. App. 140, 142 (182 SE 677); Simonton Constr. Co. v. Pope, 95 Ga. App. 211, 217 (97 SE2d 590), reversed on other grounds in 213 Ga. 360 (99 SE2d 216); Crump v. Ojay Spread Co., 87 Ga. App. 250, 252 (73 SE2d 331); Royal Ins. Co. v. Cohen, 105 Ga. App. 746 (3) (125 SE2d 709). Under these decisions the verdict is substantially less where the proof of loss was for $2,350, suit was brought to recover $1,400 and the verdict returned was for $1,600. Cf. First Nat. Ins. Co. of America v. Thain, 110 Ga. App. 603 (139 SE2d 447).
2. Where, after unsuccessful negotiations to settle the claim the insurer requested the insured to appoint an appraiser and before any appraiser was appointed learned from the insured that he had disposed of the car, but the insured declined to inform the insurer as to whom he had sold the car or where it might be found for the purpose of having an appraisal made, the insurer was under no duty to proceed further with the proposed appraisal. This is particularly true where, upon discovering the location of the car it appeared that repairs had already been made and it was not in the same condition so that appraisers make an intelligent appraisal of the loss, for the law does not require the doing of a vain or useless thing. Irvin v. Locke, 200 Ga. 675, 679 (38 SE2d 289); Johnson v. State, 215 Ga. 839 (5) (114 SE2d 35). Moreover, the question of bad faith or of good faith must be determined upon the case as made at the trial. Interstate Life & Acc. Ins. Co. v. Williamson, 220 Ga. 323 (138 SE2d 668).
3. Where the insurer disagreed with the insured as to the amount of his damage, offering to pay a sum which, in the light of the facts available to it and of proposals from reputable people engaged in the repairing of automobiles, it deemed to be fair and reasonable as damages for the loss sustained and the insured declined the offer, insisting upon the payment of a sum substantially in excess of the amount offered, the matter thus reaching a stalemate, a recovery of damages and attorney's fees because of delay in making settlement was not authorized.
Where there is a reasonable basis for so doing, an insurer is entitled to maintain and defend its position as to the amount of its liability without the imposition of penalty and attorney's fees, even if doing so results in considerable delay in bringing the matter to a conclusion. "Any rule or principle which would deny to the company the right of full and free litigation" on the question of its liability or of the amount thereof, is wrong. Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 815 (12 SE 18). To authorize imposition of the penalty and attorney's fees it must appear that the basis of the company's position as to the amount of liability was frivolous and unfounded, and that does not appear here. Life Ins. Co. of Ga. v. Burke, 219 Ga. 214, 219 (132 SE2d 737); Royal Ins. Co. v. Cohen, 105 Ga. App. 746 (3), supra.
F. H. Boney purchased a new Dodge automobile June 23, 1963, praying therefor $2,400, and insured it with Georgia Farm Bureau Mutual Insurance Company. It turned over while being driven July 28, 1963, and Boney filed a proof of loss shortly thereafter, dated July 29, claiming $2,350 ($2,400 less $50 deductible). The company adjuster and claims representative entered into negotiations with him immediately and continued for some two months or more until it was apparent that a stalemate had been reached between them. In connection with the negotiations the insurer procured a proposal from the Dodge dealer at Rome to make all repairs, using new parts for replacing damaged ones, for restoring the car to its former condition, for $695, the dealer agreeing to "guarantee" the job. A similar proposal was obtained from the Pontiac dealer for $700, and a third proposal was obtained from an independent garage for $1,200. Mr. Boney secured statements from others engaged in automobile repairs, the dealer from whom he had purchased in Centerville, Alabama, and the Chevrolet dealer at Summerville, to the effect that the damage was not repairable.
Basing its conclusion on the proposals received that it was repairable, the insurer offered (a) to have the repairs made by the Dodge or the Pontiac dealer, and if unseen damage should appear to have that repaired also, or (b) to pay Mr. Boney the sum of $800. Mr. Boney refused both offers, insisting for some time upon replacement of the car with a new one, and later offering to settle the loss for $1,200. Thus a stalemate was reached, and on September 25 the company wrote to Boney asking that he appoint an appraiser for an appraisal under policy provisions. Boney then informed the adjuster that he had disposed of the car, but declined to say to whom or where it could be located. However, on October 17 Mr. Boney notified the company that he had appointed A. A. Farrar (his attorney) as his appraiser. Finally the adjuster was able to locate the car in the hands of a doctor who had purchased and repaired it, and then informed Mr. Boney that in view of this development it would be useless to attempt an appraisal and the company would go no further with it. The offer of $800 was renewed, and declined.
After written demand for $1,400, suit followed, but several months later, seeking recovery of $1,400 actual damage, 25 percent penalty and $1,000 attorney's fees. A verdict was returned for $1,000 actual damage, $100 penalty and $300 attorney's fees. The amount of the attorney's fees was raised by the court, upon plaintiff's motion, to $750 under Code Ann. 56-1206. An amended motion for new trial was overruled and plaintiff appeals, but in this court abandoned general grounds and all others save those dealing with the award of penalty and attorney's fees.
Archibald A. Farrar, for appellee.
Fullbright & Duffey, Harl C. Duffey, Jr., for appellant.
ARGUED MARCH 9, 1966 -- DECIDED APRIL 5, 1966.
Friday May 22 20:09 EDT


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