Roberts v. State Farm Fire and Casualty Company
Filing
20
ORDER granting 10 Motion for Summary Judgment. Ordered by Judge Hugh Lawson on 12/14/2011. (nbp)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
BOBBIE ROBERTS,
Plaintiff,
Civil Action 7:11-CV-86 (HL)
v.
STATE FARM FIRE AND CASUALTY
COMPANY,
Defendant.
ORDER
This case is before the Court on Defendant’s Motion for Summary
Judgment (Doc. 10). For the reasons discussed herein, the Motion is granted.
I.
INTRODUCTORY MATTERS
Plaintiff, who is proceeding pro se, brought suit against her insurance
carrier, Defendant State Farm, seeking damages for the insurer’s failure to pay a
fire loss claim. Defendant has now moved for summary judgment on Plaintiff’s
claims.
As required by Local Rule 56, Defendant filed a statement of undisputed
material facts (“DSOMF”) in support of its Motion. While Plaintiff responded to
Defendant’s Motion, she did not respond to the DSOMF, as required by Local
Rule 56. Thus, the facts contained in the DSOMF are deemed admitted. M.D.
Ga. R. 56. However, the Court must still review the record citations in the
DSOMF to “determine if there is, indeed, no genuine issue of material fact.”
Reese v. Herbert, 527 F.3d 1253, 1269 (11th Cir. 2008) (internal quotation marks
omitted).
II.
FACTS
On April 23, 2010, a fire damaged a home and personal property located
at 313 3rd Street, S.W., in Moultrie, Georgia. (DSOMF, ¶ 1; Affidavit of Richard
Wallace, ¶ 3). At the time of the loss, Defendant insured the personal property
located at the home under Policy No. 81-BS-U931-4. (DSOMF, ¶ 2; Wallace Aff.,
¶ 3, Ex. A; Doc. 10-4).1 Plaintiff, the insured, occupied the home as a tenant with
her husband, Ernest Roberts. Also living in the home were Plaintiff’s adult sons,
Anthony Walker and Elliott Walker. (Wallace Aff., ¶ 4). Plaintiff submitted a claim
for damage to property insured under the policy. (DSOMF, ¶ 3; Wallace Aff., ¶ 3).
As part of its investigation of Plaintiff’s claim, Defendant retained Dennis
Ellerbee, a fire cause and origin expert, to evaluate where and how the fire
started. (Wallace Aff., ¶¶ 5-6). Mr. Ellerbee conducted an examination of the
scene and interviewed Plaintiff and fire officials. (Wallace Aff., ¶ 6). The scene
examination revealed that the fire originated on a bed in an unoccupied room of
the home. (DSOMF, ¶ 4; Wallace Aff., ¶ 6). The interviews revealed that the
house was secure when the fire department arrived. (Wallace Aff., ¶ 6). No one
was home when the fire occurred. (Id.) There were no electrical or heat
1
Policy No. 81-BS-U931-4 is a renter’s policy that only insured the personal property
contained in the dwelling. The policy did not insure the dwelling itself.
2
producing appliances that had been used in the room where the fire started. (Id.)
There were no known heat sources on or near the bed where the fire originated.
(Id.) Mr. Ellerbee was unable to rule out an intentional human act as the cause of
the fire. (Id.)
Based on these findings, Defendant continued to investigate the cause of
the fire. (Wallace Aff., ¶ 7). Defendant’s investigation revealed several interesting
pieces of information. First, other members of Plaintiff’s family had a history of
fire losses. (DSOMF, ¶ 6; Wallace Aff., ¶ 8). Second, although the house was
locked and unoccupied when the fire department arrived, neighbors allegedly
saw a person leaving the home as the home was “smoking” from the fire.
(DSOMF, 6; Wallace Aff., ¶¶ 6, 9). Third, the home was owned by Plaintiff’s son,
Anthony Walker, who had other insurance on the property through another
carrier. (DSOMF, ¶ 8; Wallace Aff., ¶ 10, Ex. B; Doc. 10-5). Fourth, an informant
alleged that he was offered money to burn Plaintiff’s home approximately ten
days before the date of loss. The informant allegedly helped move personal
property from the home before the fire to an off-site storage facility. A search of
the storage facility conducted by police pursuant to a search warrant revealed the
presence of household property allegedly removed from Plaintiff’s home before
the fire. (DSOMF, ¶ 9; Wallace Aff., ¶ 12). Finally, at the time of the fire, Plaintiff
was in bankruptcy, had lost a previous home due to foreclosure, was involved in
a civil lawsuit over the purchase of another residence, and had to shut down her
3
restaurant business due to health issues. (DSOMF, ¶ 11; Wallace Aff., ¶ 13, Ex.
D; Doc. 10-7).
Within one week after the fire, on April 29, 2009, Plaintiff submitted an
inventory listing the personal property she and her husband allegedly lost in the
fire. (DSOMF, ¶ 10, Wallace Aff., ¶ 11, Ex. C; Doc. 10-6). Thereafter, on May 14
and May 19, Plaintiff’s sons both submitted personal property inventories
containing separate claims of their own. (Id.) However, the inventories submitted
by Plaintiff and the others did not disclose information concerning the place of
purchase for all of the items claimed in the loss and did not include supporting
documents, such as receipts or proof of purchase, as required by the policy.
(Supplemental Affidavit of Richard Wallace, ¶ 10).
The insurance policy at issue contained certain conditions with which an
insured was obligation to comply in the event of a loss. Specifically, the policy
contained the following:
SECTION I - CONDITIONS,
2. Your2 Duties After Loss:
After a loss to which this insurance may apply, you shall
see that the following duties are performed:
…
2
The policy defines “you” and “yours” as the “named insured” shown in the
Declarations, who is Plaintiff. “Your spouse is included if a resident of your household.”
(Wallace Aff., Ex. A; Doc. 10-4, p. 5). Thus, references to “you” and “yours” in the policy
would apply to both Plaintiff and her husband.
4
c.
prepare an inventory of damaged or stolen
personal property. Show in detail the quantity,
description, age, replacement cost and amount of
loss. Attach to the inventory all bills, receipts and
related documents that substantiate the figures in
the inventory;
d.
as often as we reasonably require:
(1)
exhibit the damaged property;
(2)
provide us with records and documents we
request and permit us to make copies;
(3)
submit to and subscribe, while not in the
presence of any other insured3:
(a)
(b)
(4)
e.
statements; and
examinations under oath; and
produce employees, members of the
insured’s household or others for
examination under oath to the extent it is
within the insured’s power to do so; and
submit to us, within 60 days after the loss, your
signed, sworn proof of loss which sets forth, to
the best of your knowledge and belief:
(1)
the time and cause of loss;
3
The policy defines “insured” as “you and, if residents of your household: (a) your
relatives; and (b) any other person under the age of 21 who is in the care of a person
described above.” (Wallace Aff., Ex. A; Doc. 10-4, p. 5). Thus, Plaintiff, her husband,
and her two sons would each be considered an “insured” under the policy.
5
(2)
interest of the insured and all others in the
property involved and all encumbrances on
the property;
(3)
other insurance which may cover the loss;
(4)
changes in title or occupancy of the
property during the time of this policy;
(5)
specifications of any damaged building and
detailed estimates for repair of the damage;
(6)
an inventory of damaged or stolen personal
property described in 2.c;
(7)
receipts for additional living expense
incurred and records supporting the fair
rental value loss; and
(8)
evidence or affidavit supporting a claim
under the Credit Card, Bank Fund Transfer
Card, Forgery and Counterfeit Money
coverage, stating the amount and cause of
loss.
(DSOMF, ¶ 12; Wallace Aff., ¶ 14, Ex. A; Doc. 10-4, p. 15).4
On May 6, 2010, Plaintiff signed a form which authorized Defendant to
request documents or information from Plaintiff’s employers, banks, savings
institutions, creditors, and others. (Wallace Supp. Aff., ¶ 2). However, Defendant
was never provided with information about Plaintiff’s creditors, deposit accounts,
4
Plaintiff was also required to contact her insurance agent to notify him of the loss.
There does not appear to be any dispute that Plaintiff properly contacted the agent.
6
or income sources sufficient for Defendant to request any documents. (Wallace
Supp. Aff., ¶¶ 4-6).
On May 20, 2010, Defendant advised Plaintiff of the policy conditions and
requested that Plaintiff submit a signed, sworn Proof of Loss and other
documents verifying and substantiating the amounts claimed for the loss.
(DSOMF, ¶ 13; Wallace Aff., ¶ 15). According to Plaintiff, “Defendants sent to the
Plaintiff a letter of instructions and requirements for the Plaintiff to perform, in
order to collect under this policy, as well as the forms required,” and “the forms
given to the Plaintiff by Defendants have been properly completed and returned
to the Defendants, along with a demand for payment.” (Doc. 1-1, p. 3).5 On May
24, 2010, Defendant received a Proof of Loss form signed by Plaintiff under oath.
(DSOMF ¶ 14; Wallace Aff., ¶ 16, Ex. E; Doc. 10-8). The Proof of Loss submitted
by Plaintiff failed to disclose the other insurance on the property; failed to
disclose the interests of Plaintiff’s husband and sons in the property; failed to
include documents supporting the items claimed; and failed to disclose the fact
that Plaintiff’s son Anthony actually owned the property. (DSOMF ¶ 15; Wallace
Aff., ¶ 17, Ex. E; Doc. 10-8; Wallace Supp. Aff., ¶ 13).
5
While Plaintiff did not respond to the DSOMF or file an affidavit or other sworn
statement in connection with her response to the summary judgment motion, she did file
a sworn complaint that describes facts based upon personal knowledge. A pro se
plaintiff’s verified complaint is the equivalent of an affidavit and is considered competent
evidence for summary judgment purposes where the complaint asserts non-conclusory
allegations based on the plaintiff’s personal knowledge. See Sammons v. Taylor, 967
F.2d 1533, 1544 n. 5 (11th Cir. 1992). Thus, the Court will consider the allegations
contained in the complaint in ruling on the summary judgment motion.
7
Because of the uncertainty in the documents and information concerning
Plaintiff’s financial affairs, other insurance, other interests in the property, the
financial affairs of other household members, and the purchase and ownership of
items claimed in the loss, by letter dated June 10, 2010, Defendant demanded
that Plaintiff, her husband, and her sons submit to examinations under oath. The
examinations were scheduled for June 23, 2010 at the Colquitt County
Courthouse. (DSOMF ¶ 16; Wallace Aff., ¶ 18, Ex. F; Doc. 10-9). In addition,
because the documents and information received from Plaintiff failed to provide
adequate information for Defendant to obtain its own documents relating to these
issues, Defendant requested the following documents from Plaintiff: (1) copies of
income records, bank statements, and other income records for the years 2007
through 2010, the year of the loss; (2) copies of Plaintiff’s loans/debts owed at
the time of the loss; (3) copies of documents reflecting Plaintiff’s regular
household expenses for the one-year period pre-dating the loss (April 2009
through April 2010); (4) copies of business records pertaining to Plaintiff’s closed
business; (5) copies of documents relating to the use and occupancy of the
property including any lease agreement pertaining to the home or property; (6)
documents substantiating the amount of the claims submitted including receipts,
appraisals, and estimates; and (7) documents pertaining to Plaintiff’s activities at
or around the time of the loss including cell phone records, debit/ATM records,
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and credit card receipts for the period January 1 through May 1, 2010. (DSOMF
¶¶ 16-17; Wallace Aff., ¶¶ 18, 33, Exs. F, L; Wallace Supp. Aff., ¶ 15).
On June 10, 2010, Plaintiff’s son Elliott was arrested and charged with
insurance fraud arising out of the fire loss and claim. Plaintiff and her son
Anthony were arrested and charged with insurance fraud on June 11. (Wallace
Aff., ¶ 20, Ex. G; Doc. 10-10). While Plaintiff appeared on June 23, 2010 at the
Colquitt County Courthouse for the scheduled examination under oath, she did
not submit to the examination. Plaintiff’s criminal defense attorney counseled
Plaintiff not to go forward with her sworn statement. Plaintiff did not produce any
of the documents requested in Defendant’s letter of June 10 either. (DSOMF, ¶
18; Wallace Aff., ¶ 22, Ex. H; Doc. 10-11). Counsel for Defendant notified Plaintiff
on the record that while she was counseled by her attorney not to give her sworn
testimony, she still had an obligation to produce the requested documents.
(Wallace Aff., Ex. H; Doc. 10-11). Neither Plaintiff’s husband nor her two sons
submitted to the examination on June 23. (DSOMF, ¶ 18; Wallace Aff., ¶ 22).
On July 2 and August 16, 2010, Defendant reiterated its request for the
examinations under oath and for the documents in letters directed to Plaintiff’s
criminal defense attorney. (DSOMF, ¶ 19; Wallace Aff., ¶ 23, Exs. I-J; Docs. 1012, 10-13). On September 7, 2010, Plaintiff’s criminal defense attorney
responded in writing that Plaintiff would not participate in Defendant’s
investigation and that she would not produce the documents or submit to the
9
examination under oath, even if there were negative implications arising from her
refusal to participate. (DSOMF, ¶ 20; Wallace Aff., ¶ 24, Ex. K; Doc. 10-14).
On October 5, 2010, Defendant notified Plaintiff in writing that it considered
her refusal to participate in the investigation a breach of the policy conditions.
Plaintiff was given an opportunity to cure the breach by immediately submitting to
the examination under oath and producing all documents previously requested,
subject to all other policy terms and conditions. Defendant specifically reserved
the right to assert any policy defenses in the future. (DSOMF, ¶ 21; Wallace Aff.,
¶ 25, Ex. L; Doc. 10-15).
On October 27, 2010, Plaintiff requested a copy of her insurance policy,
which was provided by Defendant. In the letter sent to Plaintiff on that date,
Defendant again specifically reserved its right to assert any policy defenses at
any time. Defendant told Plaintiff that if she wished for Defendant “to give any
further consideration to your claim, you must immediately and fully cooperate
with our request.” (Wallace Aff., ¶ 26, Ex. M; Doc. 10-16). On January 27, 2011,
Plaintiff requested copies of the inventories that she and her family previously
submitted. Defendant responded to this request by letter dated February 2, 2011,
in which it reiterated that it was not waiving any policy defenses. (Wallace Aff., ¶
27, Ex. N; Doc. 10-17). On April 18, 2011, Plaintiff stated that she intended to
comply with Defendant’s previous requests though she expressed concern about
the time remaining under the policy for her to file suit. (Wallace Aff., ¶ 28). On
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April 19, 2011, Defendant confirmed in writing that a two-year time limit (through
April 23, 2012) applied to the fire loss and reiterated its requests for the
examinations and the documents needed to evaluate the claim. Defendant stated
that “[t]his letter should not be construed as a waiver of State Farm’s rights under
your policy number 81-ES-U931-4. In fact, State Farm insists on strict
compliance with all policy provisions.” (Wallace Aff., ¶ 29, Ex. O; Doc. 10-18). On
April 23, 2011, Plaintiff requested a new date for the examinations and
expressed her intention to submit the requested documents. (Wallace Aff., ¶ 30).
Notwithstanding the fact Plaintiff had not provided any of the documents
requested by Defendant in its June 10, 2010 letter (DSOMF, ¶ 24; Wallace Aff., ¶
34), and neither Plaintiff, her husband, nor her sons had submitted to and signed
their examinations under oath (DSOMF, ¶ 25; Wallace Aff., ¶ 35), on April 25,
2011, Plaintiff filed suit against Defendant in the Superior Court of Colquitt
County. (Doc. 1; Wallace Aff., ¶ 31). Plaintiff’s policy contains the following
provision:
SECTION I - CONDITIONS
6.
Suit Against Us. No action shall be brought
unless there has been compliance with the policy
provisions. . . .
(Wallace Aff., ¶ 32, Ex. A; Doc. 10-4, p. 16).
Other than what was disclosed in the inventories, the Proof of Loss, and in
Plaintiff’s bankruptcy petition, Defendant did not receive any other information or
11
documents from Plaintiff, her husband, or her sons pertaining to the household
finances, the existence of other insurance, the nature and measure of other
interests in the property, and the purchase and ownership of items claimed in the
loss. (Wallace Supp. Aff., ¶ 19). Because Plaintiff, her husband, and her sons
never submitted to the examinations under oath, and never produced the
requested documents, Defendant was unable to identify other persons or entities
from whom to request documents pertaining to the household finances, the
existence of other insurance, the nature and measure of other interests in the
property, and the purchase and ownership of items claimed in the loss. (Wallace
Supp. Aff., ¶ 20).
III.
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56(a). In determining whether a genuine dispute
of material fact exists to defeat a motion for summary judgment, the evidence is
viewed in the light most favorable to the party opposing summary judgment,
drawing all justifiable inferences in the opposing party's favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505 (1986). A fact is material if
it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute
is genuine if the evidence would allow a reasonable jury to return a verdict for the
nonmoving party. Id.
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IV.
ANALYSIS
A.
Breach of Contract Claim
Defendant contends it is entitled to summary judgment in its favor because
Plaintiff failed to comply with the terms and conditions of her policy prior to filing
suit by both failing to give an examination under oath and to produce the
requested documents. Plaintiff responds that she did in fact cooperate with
Defendant and “gave a recorded statement and what ever documents that the
Plaintiff had to defendant’s [sic].” (Doc. 13, p. 3).
“When questions exist as to the cause of a fire for which a claim is made,
the insurer has the right to investigate before reaching a decision as to whether
to pay the claim.” Farmer v. Allstate Ins. Co., 396 F.Supp.2d 1379, 1381 (N.D.
Ga. 2005) (citing Pervis v. State Farm Fire & Cas. Co., 901 F.2d 944, 946 (11th
Cir. 1990)). Under Georgia law, “[a]n insurer is entitled to require its insured to
abide by the policy terms, and the insured is required to cooperate with the
insurer in investigation and resolution of the claim.” Diamonds & Denims, Inc. v.
First of Ga. Ins. Co., 203 Ga. App. 681, 683, 417 S.E.2d 440 (1992) (internal
citations omitted). Failure to comply with policy provisions which are conditions
precedent to bringing suit is a breach which precludes recovery as a matter of
law. See Farmer, 396 F.Supp.2d at 1382.
Here, the policy required Plaintiff to provide records and documents as
requested by Defendant and to submit to an examination under oath. Fulfillment
13
of these requirements was a condition precedent to bringing suit as the policy
specifically states that no action can be brought unless there has been
compliance with the policy provisions. The case law is clear that such conditions
precedent are allowable and binding against the insured. See id.; Hill v. Safeco
Ins. Co. of Am., 93 F.Supp.2d 1375, 1383 (M.D. Ga. 1999); Townley v.
Patterson, 139 Ga. App. 249, 228 S.E.2d 164 (1976).
Under Georgia law, Plaintiff breached the insurance contract if she failed to
provide “any material information” required under the policy. Halcome v.
Cincinnati Ins. Co., 254 Ga. 742, 744, 334 S.E.2d 155 (1985). In a case like this
where there is possible fraud, information about the insured’s income and
sources of income is material and relevant to possible fraud and to the insured’s
possible financial motive. See id. at 744; Meyers v. State Farm Fire & Cas. Co.,
801 F.Supp. 709, 716 (N.D. Ga. 1992) (“[I]t is merely a matter of common sense
that where an insurer alleges arson as a defense to a claim for fire loss, the
financial status and potential financial gain to the insured - as the suspected
arsonist - are circumstances material to the defense.”) There is no dispute that
Plaintiff never gave copies of her income records, bank statements, debt
statements, and expense documents to Defendant as requested. All she
submitted was a Proof of Loss, a personal property inventory, and a blank
authorization Defendant could use to request documents from various entities.
14
Thus, it appears Plaintiff has breached the insurance contract by failing to
provide material information to Defendant.
The Court acknowledges that in Diamonds & Denims, the Georgia Court of
Appeals held that if “the insured cooperates to some degree or provides an
explanation for its noncompliance, a fact question is presented for resolution by
jury.” 203 Ga. App. at 683. Nevertheless, the Court does not believe that a fact
question exists in this case, even though Plaintiff provided some documents to
Defendant. In Diamonds & Denims, the documents requested by the insurance
company were all destroyed in the fire. The insured’s employees offered to
provide alternative documentation, but the insurer never attempted to procure
those documents. Id. Here, there has been no contention that the requested
documents were destroyed or are unavailable. Further, even though Defendant
has repeatedly requested the documents, Plaintiff has not given the documents
to Defendant or provided sufficient information to Defendant for it to obtain the
documents. The requested documents go directly to a possible financial motive
for making a claim. See Allstate Ins. Co. v. Hamler, 247 Ga. App. 574, 577, 545
S.E.2d 12 (2001) (distinguishing Diamonds & Denims on the basis that while the
plaintiff had provided some documents requested by the insurer, she refused to
provide information that would have reflected on a possible financial motive for
making a claim, despite a lengthy and detailed request by the insurer).
15
It is clear to the Court that Plaintiff breached the insurance contract by
failing to provide the requested documents. However, if Plaintiff can point to
some principle that excuses this failure, she might be able to survive summary
judgment. See Halcome, 254 Ga. at 742. Unfortunately, Plaintiff has not
identified any such principle. She cannot invoke her Fifth Amendment right not to
incriminate herself because the self-incrimination privilege “applies only when the
accused is compelled to make a testimonial communication that is incriminating.”
Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569 (1976) (emphasis
removed). While testimony under the Fifth Amendment may include the
production of documents, Grand Jury Subpoena Dated April 9, 1996 v. Smith, 87
F.3d 1198, 1200 (11th Cir. 1996), Plaintiff has not shown how turning over the
requested documents could tend to incriminate her.6 Plaintiff’s only other
argument is that she was forced to file suit when she did because the one year
statute of limitation provided in the policy was about to run. That argument,
however, holds little weight. Plaintiff was informed, both orally and in writing, that
the period of filing suit on fire losses had been extended to two years from the
date of loss. If Defendant claimed that Plaintiff missed the filing deadline, which it
does not in this case, a court would find that through its affirmative statements to
Plaintiff that the statute of limitations was two years, Defendant waived any right
6
See also Pervis, 901 F.2d at 944 (holding that the Fifth Amendment privilege against
self-incrimination did not excuse the plaintiff from fulfilling his contractual obligation to
provide an examination under oath).
16
to enforce a one-year period. And in any event, Defendant could not enforce the
one-year time limit because it violates an insurance regulation in Georgia. The
current fire insurance regulations require a minimum two-year period in which to
bring suit on a policy. See Ga. Comp. R. & Regs. rr. 120-2-19-.01; Thornton v.
Ga. Farm Bureau Mut. Ins. Co., 287 Ga. 379, 381, 695 S.E.2d 642 (2010). The
regulation requiring a two-year period is effective for all policies written or
renewed on or after June 20, 2006. Plaintiff’s policy was written with an effective
date of January 29, 2010, which means the updated insurance regulation applies
to the policy.
As for the examination under oath, Plaintiff contends she attempted to
reschedule the examination prior to her filing suit but she never heard anything
from Defendant about a new examination date.7 Even assuming that is true, and
even if Plaintiff had in fact participated in the examination under oath, her failure
to provide the requested documents provides grounds for summary judgment in
Defendant’s favor. Thus, Plaintiff’s argument that she attempted to complete the
examination under oath does not change the outcome of this case.8
7
While Plaintiff states she “gave a recorded statement” to Defendant, it is clear from the
record she never sat for the examination under oath requested by Defendant and
required by the policy.
8
Plaintiff makes a one sentence argument that Defendant waived its rights to an
examination under oath. The Court disagrees that any such rights were waived, but in
any event, even if Defendant waived its right to insist on an examination under oath,
Plaintiff still failed to comply with the contract provisions by filing suit before providing
the requested documents.
17
Because Plaintiff refused to provide the requested documents to
Defendant and comply with a condition precedent, she cannot maintain a claim
against Defendant. The Motion for Summary Judgment on the breach of contract
claim is granted.
B.
Bad Faith Claim
In her complaint, Plaintiff alleges a bad faith claim under O.C.G.A. § 33-46. That statute provides that if an insurer refuses in bad faith to pay a covered
loss within 60 days after the insured makes a demand, the insurer may be held
liable to pay the holder of the policy a bad faith penalty and reasonable attorney’s
fees. However, penalties for bad faith refusal to pay a claim are not authorized
where an insurance company has a reasonable ground to contest the claim. See
Shaffer v. State Farm Mut. Auto. Ins. Co., 246 Ga. App. 244, 245, 540 S.E.2d
227 (2000). Because Plaintiff breached the insurance contract and was
precluded from recovery, Defendant had reasonable grounds to refuse payment
of the claim. Defendant is also entitled to summary judgment on Plaintiff’s claim
for bad faith penalties and attorney’s fees under O.C.G.A. § 33-4-6.
V.
CONCLUSION
For the reasons discussed above, the Court grants Defendant’s Motion for
Summary Judgment (Doc. 10). The Clerk of Court is directed to enter judgment
in favor of Defendant.
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SO ORDERED, this the 14th day of December, 2011.
s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE
mbh
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