Travillian v. Georgia Farm Bureau Mutual Insurance

Banke, Presiding Judge. On June 30, 1984, appellant Travillian was operating his automobile, which was insured under an automobile insurance policy issued by appellee Georgia Farm Bureau Mutual Insurance Company (Georgia Farm), when he was struck from the rear by another vehicle. The appellant reported the accident to Georgia Farm’s agent by telephone on the next business day and orally asserted a claim for collision (i.e., property damage) coverage against the insurance company. The appellant maintains that he was advised by the appellee’s agent at that time that, since the other driver appeared to be at fault, he (the appellant) would be required to pursue his claim against the other driver’s insurance carrier. In subsequent conversations with Georgia Farm’s agent, the appellant demanded that Georgia Farm repair or replace his vehicle, which had been evaluated as a total loss. The appellant contends that he was again advised that Georgia Farm would not pay the claim because it did not “get involved” when the other driver was at fault. The record is in fact devoid of evidence that Geor [242] gia Farm at any time offered to pay any portion of the appellant’s claim. The appellant retained counsel and, approximately three and one-half months after reporting the claim to Georgia Farm and demanding payment, ultimately reached a settlement with the other driver’s insurance carrier in the amount of $2,500, the agreed upon market value of the automobile. However, the appellant realized only $1,250 from this settlement, the remaining $1,250 being paid to his attorney as a 50 percent contingent fee. The appellant subsequently brought this suit against Georgia Farm to recover the market value of his automobile less the deductible under the policy, as well as a 25 percent bad-faith penalty and attorney fees pursuant to OCGA § 33-4-6. Georgia Farm sought summary judgment contending that the appellant had compromised its right of subrogation as set forth in the policy by settling his claim with the other driver’s carrier, that he had further violated the policy provisions by failing to submit a sworn proof-of-loss statement, and that he had already been compensated in full for his loss. The trial court granted the motion, based on a determination that the appellant had been compensated in full for his damages by the other driver’s carrier and had forfeited any right of recovery he might otherwise have had by his failure to submit a sworn proof of loss, as required by the policy. The court further concluded as a matter of law that there, had been no bad faith on the part of the insurer. Held: 1. We agree with the appellant’s contention that an issue of material fact existed as to whether Georgia Farm’s refusal to consider his claim resulted in a waiver of the policy requirements concerning proof of loss. In Mattison v. Travelers Indent. Co., 157 Ga. App. 372 (2) (277 SE2d 746) (1981), this court held that it makes no difference “who gave notice of the lawsuit and claim so long as notice is given in a reasonable and timely manner,” with the result that the carrier has actual knowledge of the pendency of a claim. In the present case, there is ample evidence to establish that the insured repeatedly notified the appellee’s agent of the existence of his claim and demanded compensation for his property loss, only to be told, in effect, that he had no coverage under the circumstances. It may be inferred from this evidence “that the defendant was fully aware of the facts and circumstances surrounding the [accident].” Mattison, supra at 375. “[T]here being some evidence that the insurer had refused to consider [the appellant] as an insured, an issue of fact remains as to whether same constituted a waiver of the policy requirements as to notice [and] proof of loss . . .” Id. at 376. 2. We also reject the appellee’s argument that, as a matter of law, the appellant violated the subrogation provision of the policy when he [243] elected to pursue his tort claim against Liberty Mutual. Clearly, a question of fact also exists as to whether the appellee, by instructing the appellant to take this very course of action, also waived any rights it might otherwise have had under this provision. Accordingly, the trial court erred in concluding that the appellee’s failure to comply with the policy requirements in this respect precluded any recovery by him in the present action. 3. In his complaint, the appellant sought to recover for the loss of his automobile as well as to recover a bad-faith penalty and attorney fees based on the appellee’s refusal to honor the claim. The trial court determined that, having already settled with the tortfeasor’s insurance carrier for the loss of his car, the appellant was barred from asserting the same cause of action against his own carrier. We agree. “ ‘No matter what right the party wronged may have of electing between remedies or of pursuing different defendants for the same cause of action, when he once obtains full satisfaction from one source, his cause of action ends, and he can assert it no further. If the plaintiff in a suit brought upon a given cause of action accepts a sum of money in full settlement thereof, he cannot thereafter set up the same cause of action against another whom he had the election of suing in the first instance.’ [Cits.]” Nannis Terpening & Assoc. v. Mark Smith Constr. Co., 171 Ga. App. 111, 114 (318 SE2d 89) (1984). However, while we affirm the trial court’s grant of summary judgment to the appellee with respect to the appellant’s claim to recover for the damage to his vehicle, we note that the evidence of record does raise material factual issues with respect to whether the appellee may be held liable in contract for the $1,250 in attorney fees which the appellant contends he was forced to expend as a direct and natural consequence of the appellee’s refusal to pay the claim. See generally OCGA §§ 13-6-1; 13-6-2; Crawford & Assoc. v. Groves-Keen, Inc., 127 Ga. App. 646, 650 (194 SE2d 499) (1972). 4. Material issues of fact also exist with respect to the appellant’s liability for a bad-faith penalty and attorney fees pursuant to OCGA § 33-4-6. That code section provides: “In the event of a loss which is covered by a policy of insurance and the refusal of the insurer to pay the same within 60 days after a demand has been made by the holder of the policy and a finding has been made that such refusal was in bad faith, the insurer shall be liable to pay such holder, in addition to the loss, not more than 25 percent of the liability of the insurer for the loss and all reasonable attorney’s fees for the prosecution of the action against the insurer.” The trial court concluded that the appellant had no claim under this provision due to his failure to submit a sworn proof of loss as required by the policy. However, as held in Division 1 of this opinion, supra, a jury might reasonably conclude that the appellee waived the [244] proof of loss requirement by instructing the appellant that it did not intend to pay the claim in any event. While an insurance carrier has a right to require its insured to abide by the terms of the contract “that right is limited by the reasonableness of its exercise under the circumstances when it delays payment.” Falagian v. Leader Nat. Ins. Co., 167 Ga. App. 800, 801 (307 SE2d 698) (1983). The question of reasonableness is generally for the jury. Id. Since the evidence of record in this case does not establish as a matter of law that the appellee acted reasonably in refusing to honor the appellant’s claim, the trial court erred in granting summary judgment on the claim for a bad-faith penalty and attorney fees. Judgment affirmed in part and reversed in part. McMurray, P. J., Carley, Sognier, Pope, and Benham, JJ., concur. Birdsong, C. J., and Deen, P. J., dissent. Beasley, J., concurs in the judgment only of the dissent.