(Ga. L. 1872, p. 43, § 1; Code 1873, § 2850; Code 1882, § 2850; Civil Code 1895, § 2140; Civil Code 1910, § 2549; Code 1933, § 56-706; Code 1933, § 56-1206, enacted by Ga. L. 1960, p. 289, § 1; Ga. L. 1962, p. 712, § 1; Ga. L. 2001, p. 784, § 1; Ga. L. 2015, p. 1088, § 21/SB 148; Ga. L. 2016, p. 864, § 33/HB 737.)
Cross references.- Imposing administrative fine for acts of representatives, including refusal to pay claims without cause, § 33-3-20.
Liability of unauthorized foreign or alien insurer failing to pay according to terms of insurance contract, § 33-5-58.
Liability for failing or refusing in bad faith to pay under uninsured motorist coverage, § 33-7-11(j).
Prompt payment of health benefit claims, § 33-24-59.5.
Code Commission notes.- Pursuant to Code Section 28-9-5, in 2001, "first-class mail" was substituted for "first class mail" in subsection (b).
Law reviews.- For article surveying recent legislative and judicial developments regarding Georgia's insurance laws, see 31 Mercer L. Rev. 117 (1979). For article discussing Georgia provisions concerning damages for insurer's failure to pay first-party claims, see 14 Ga. L. Rev. 497 (1980). For article surveying Georgia cases in the area of insurance from June 1979 through May 1980, see 32 Mercer L. Rev. 79 (1980). For article discussing imposition of liability on insurer, "The Liability Insurance Policy - Above and Beyond Coverage: Extra-Contractual Rights and Duties," see 22 Ga. St. B.J. 134 (1986). For annual survey of insurance law, see 42 Mercer L. Rev. 259 (1990). For article, "Insurance," see 53 Mercer L. Rev. 281 (2001). For article, "Bad Faith in Insurance Claim Handling in Georgia: An Overview and Update," see 9 Ga. St. B.J. 10 (2003). For annual survey of insurance law, see 56 Mercer L. Rev. 253 (2004). For survey article on insurance law, see 59 Mercer L. Rev. 195 (2007). For annual survey on insurance, see 61 Mercer L. Rev. 179 (2009). For article, "What Does ERISA Have to do with Insurance?," see 14 (No. 7) Ga. St. B.J. 19 (2009). For annual survey on insurance law, see 64 Mercer L. Rev. 151 (2012). For annual survey on insurance law, see 66 Mercer L. Rev. 93 (2014). For annual survey of insurance law, see 67 Mercer L. Rev. 73 (2015). For article, "An Insurer's Duty to Settle: The Law in Georgia," see 22 Ga. St. B.J. 19 (Aug. 2016). For article, "The Peculiarities of Georgia Insurance Law," see 24 Ga. St. B.J. 18 (April 2019). For note, "Wrongful Refusal to Pay Insurance Claims in Georgia," see 13 Ga. L. Rev. 935 (1979). For note on the 2001 amendment to this Code section, see 18 Ga. St. U.L. Rev. 167 (2001). For comment on Life & Cas. Ins. Co. v. Freemon, 80 Ga. App. 443, 56 S.E.2d 303 (1949), see 12 Ga. B.J. 337 (1950). For comment on Spicer v. American Home Assurance Co., 292 F. Supp. 27 (N.D. Ga. 1967), see 6 Ga. St. B.J. 225 (1969).
JUDICIAL DECISIONSANALYSIS
General Consideration
Section is constitutional.
- This section is not violative of U.S. Const. amend. 14, § 1, nor of Ga. Const. 1976, Art. I, Sec. I, Paras. I, IX, and Sec. II, Para. III (see Ga. Const. 1983, Art. I, Sec. I, Paras. I, XII, and Sec. V, Para. II). Harp v. Fireman's Fund Ins. Co., 130 Ga. 726, 61 S.E. 704, 14 Ann. Cas. 299 (1908).
It is intention of O.C.G.A. § 33-4-6 to penalize insurers for resisting and delaying payment unless good cause is shown. Georgia Int'l Life Ins. Co. v. Harden, 158 Ga. App. 450, 280 S.E.2d 863 (1981).
Specific penalty provisions control.
- Where the General Assembly has provided a specific procedure and a limited penalty for noncompliance with a specific enactment (e.g., uninsured motorist coverage), the specific procedure and limited penalty are intended by the General Assembly to be the exclusive procedure and penalty, and recovery under general penalty provisions, such as O.C.G.A. §§ 13-6-11,33-4-6 (now subsection (a)),51-12-5, and51-12-6, will not be allowed. McCall v. Allstate Ins. Co., 251 Ga. 869, 310 S.E.2d 513 (1984); Howell v. Southern Heritage Ins. Co., 214 Ga. App. 536, 448 S.E.2d 275 (1994); United Servs. Auto. Ass'n v. Carroll, 226 Ga. App. 144, 486 S.E.2d 613 (1997).
As an insured's counterclaim for tortious interference with a contract failed against an insurer due to the lack of evidence regarding direct inducement, the insured's counterclaims for lost profits and punitive damages that were necessarily predicated on that counterclaim failed; the counterclaims for lost profits and punitive damages were not predicated on a bad faith refusal to pay counterclaim pursuant to O.C.G.A. § 33-4-6, as the penalties provided therein were the exclusive remedies for any liability on the part of an insurer. Great Southwest Express Co. v. Great Am. Ins. Co., 292 Ga. App. 757, 665 S.E.2d 878, cert. denied, 293 Ga. App. 365, 667 S.E.2d 192 (2008).
Because an insurer obligated itself under the terms of its policy to pay all expenses, attorney fees and expenses constituted a "loss that was covered by the policy of insurance" within the purview of a O.C.G.A. § 33-6-4 award; the coverage under the terms of the policy, which was expressly in addition to and above the liability limits of the policy, contemplated "all expenses" in the defense of a covered suit, as well as "all reasonable expenses" incurred by the insured in assisting in the defense, which would both of necessity include attorney fees. Transp. Ins. Co. v. Piedmont Constr. Group, LLC, 301 Ga. App. 17, 686 S.E.2d 824 (2009), cert. denied, No. S10C0507, 2010 Ga. LEXIS 312 (Ga. 2010).
Section is virtually identical to O.C.G.A. § 10-7-30, except that it deals with the liability of insurance companies on their insurance contracts rather than the liability of corporate sureties on their suretyship contracts. Columbus Fire & Safety Equip. Co. v. American Druggist Ins. Co., 166 Ga. App. 509, 304 S.E.2d 471 (1983).
Construction with § 33-4-7. - Because a party mischaracterized O.C.G.A. § 33-4-7 as a "companion" to O.C.G.A. § 33-4-6 and erroneously contended that the General Assembly intended to extend the same rights to a third party, or a party other than the policy holder, and thus, the appellate court should therefore read § 33-4-7 as applying, like § 33-4-6, in the event of any covered loss, those arguments were rejected as specious. Mills v. Allstate Ins. Co., 288 Ga. App. 257, 653 S.E.2d 850 (2007).
Section is not exclusive avenue for recovery of attorney's fees.
- O.C.G.A. § 33-4-6 is not the exclusive avenue for recovery of attorney's fees in Georgia; O.C.G.A. § 13-6-11 imposes liability for attorney's fees on a party in a contract action for bad faith or stubborn litigiousness. American Family Life Assurance Co. v. United States Fire Co., 885 F.2d 826 (11th Cir. 1989); American Family Life Assurance Co. v. United States Fire Co., 885 F.2d 826 (11th Cir. 1989); Colonial Oil Indus., Inc. v. Underwriters Subscribing to Policy Nos. T031504670 & T031504671, 910 F. Supp. 655 (S.D. Ga. 1995).
Section provides exclusive remedy for bad faith refusal to pay.
- Claims for attorney fees and expenses are not authorized under O.C.G.A. § 13-6-11; the penalties contained in O.C.G.A. § 33-4-6 are the exclusive remedies for an insurer's bad faith refusal to pay insurance proceeds. American Family Life Assurance Co. v. United States Fire Co., 885 F.2d 826 (11th Cir. 1989); Colonial Oil Indus., Inc. v. Underwriters Subscribing to Policy Nos. T031504670 & T031504671, 910 F. Supp. 655 (S.D. Ga. 1995).
Because the penalties contained in O.C.G.A. § 33-4-6 were the exclusive remedies for an insurer's bad faith refusal to pay insurance proceeds, attorney fees under O.C.G.A. § 13-6-11 were unavailable to an insured who prevailed on the insured's coverage claim before a jury. Johnston v. Companion Prop. & Cas. Ins. Co., 318 Fed. Appx. 861 (11th Cir. 2009)(Unpublished).
In a suit by a mortgagee against an insurer for bad faith, the insurer should have been granted summary judgment on the mortgagee's claims for bad faith damages and attorney fees under O.C.G.A. § 33-4-6 for a refusal to pay and attorney fees under O.C.G.A. § 13-6-11 because the insurer had paid the claim to the mortgagor and the mortgagee jointly and the mortgagor's agent had fraudulently endorsed the check; attorney's fees were not available because penalties were the exclusive remedy. Auto-Owners Ins. Co. v. Hale Haven Props., 346 Ga. App. 39, 815 S.E.2d 574 (2018), cert. denied, No. S18C1423, 2019 Ga. LEXIS 75, cert. denied, No. S18C1418, 2019 Ga. LEXIS 88, cert. denied, No. S18C1421, 2019 Ga. LEXIS 92 (Ga. 2019), cert. denied, No. S18C1417, 2019 Ga. LEXIS 93 (Ga. 2019).
Penalties exclusive.
- Trial court erred in denying the insurer's motion for summary judgment on the insured's claim for attorney fees under O.C.G.A. § 13-6-11 because the penalties contained in O.C.G.A. § 33-4-6 were the exclusive remedies for a bad faith claim. Thompson v. Homesite Insurance Company of Ga., 345 Ga. App. 183, 812 S.E.2d 541 (2018), cert. denied, No. S18C1044, 2018 Ga. LEXIS 738 (Ga. 2018).
Section provides exclusive remedy for bad faith denial of benefits.
- O.C.G.A. § 33-4-6 is the exclusive remedy for bad faith denial of benefits and did not apply in an action involving negligent representations by an insurer in connection with the issuance of a policy. Collins v. Life Ins. Co., 228 Ga. App. 301, 491 S.E.2d 514 (1997).
The damages set forth in O.C.G.A. § 33-4-6 are the exclusive remedy for bad faith denial of insurance benefits, so that litigation expenses under O.C.G.A. § 13-6-11 are not recoverable. Atl. Title Ins. Co. v. Aegis Funding Corp., 287 Ga. App. 392, 651 S.E.2d 507 (2007), cert. denied, No. S08C0137, 2008 Ga. LEXIS 107 (Ga. 2008).
The recovery of attorney's fees under this section is a penalty, not favored in the law, and the right thereto must clearly appear. Love v. National Liberty Ins. Co., 157 Ga. 259, 121 S.E. 648 (1924); Canal Ins. Co. v. Woodard, 121 Ga. App. 356, 173 S.E.2d 727 (1970); Progressive Cas. Ins. Co. v. Avery, 165 Ga. App. 703, 302 S.E.2d 605 (1983).
Penalty must be strictly construed. The provision for damages and attorney's fees, being in the nature of a penalty, must be strictly construed. Interstate Life & Accident Ins. Co. v. Williamson, 220 Ga. 323, 138 S.E.2d 668, answer conformed to, 110 Ga. App. 557, 139 S.E.2d 429 (1964); Progressive Cas. Ins. Co. v. Avery, 165 Ga. App. 703, 302 S.E.2d 605 (1983).
Since the provision for damages and attorney's fees is in the nature of a penalty, it must be strictly construed, and in order for these items of recovery to be authorized, it must first appear that the company acted in bad faith in refusing to pay the claim. United States Fid. & Guar. Co. v. Biddy Lumber Co., 114 Ga. App. 358, 151 S.E.2d 466 (1966).
Section sets forth insured's remedy for insurer's bad faith refusal to pay loss.
- The remedy provided a plaintiff on an unliquidated claim for damages under an insurance policy, where the defendant refuses in bad faith to pay the amount of the loss within 60 days after demand, is set forth in this section. Insurance Co. of N. Am. v. Folds, 42 Ga. App. 306, 155 S.E. 782 (1930).
Which remedy is exclusive. Damages sought to be recovered in an attempt tort action based upon an insurance contract are in the nature of a penalty, which the plaintiff claimed the defendant owed him because of its failure to promptly settle his claim. The penalties imposed against insurance companies doing business in Georgia for their failure or refusal to pay claims within a reasonable time after demand has been made are fixed by this section, which remedy is exclusive. Leonard v. Firemen's Ins. Co., 100 Ga. App. 434, 111 S.E.2d 773 (1959).
When the insured sought to recover $10.00 per day from the insurer for the loss of the insured vehicle, which the insured claimed was owed the insured because of failure of insurer to promptly settle the insured's claim, the trial court did not err in dismissing the action, since the damages sought to be recovered were in the nature of a penalty and the penalties imposed against insurance companies for failure or refusal to pay claims within a reasonable time after demand has been made are fixed by O.C.G.A. § 33-4-6, which provides the exclusive remedy. Leonard v. Firemen's Ins. Co., 100 Ga. App. 434, 111 S.E.2d 773 (1959); Globe Life & Accident Ins. Co. v. Ogden, 182 Ga. App. 803, 357 S.E.2d 276, cert. denied, 182 Ga. App. 910, 357 S.E.2d 276 (1987).
Insured's claim for penalties and attorney fees under O.C.G.A. § 33-4-6 was the insured's exclusive remedy for any failure of the insurer to pay benefits within 60 days of the insured's demand. Lincoln Nat'l Life Ins. Co. v. Davenport, 201 Ga. App. 175, 410 S.E.2d 370 (1991).
It is exception to rule disallowing exemplary damages in contract cases.
- Former Civil Code 1910, § 4393 (see O.C.G.A. § 13-6-10) declared that exemplary damages can never be allowed in cases arising on contracts, but, while this rule is a very strict and well-nigh universal one, it is still not a rule without any exception whatever, such as this section. Copeland v. Dunehoo, 36 Ga. App. 817, 138 S.E. 267 (1927).
This section provides for punitive damages where an insurer is guilty of bad faith in refusing to pay under the terms of an insurance policy, and the plaintiff's petition elsewhere seeks to recover such damages, but in the absence of such authority, exemplary or punitive damages are not recoverable for the breach of a contract. Kilgore v. National Life & Accident Ins. Co., 110 Ga. App. 280, 138 S.E.2d 397 (1964).
Where the trial court found that defendant insurer was not liable to the insured since the plaintiff breached three separate conditions precedent in the policy, plaintiff's claim for bad faith penalties likewise failed. Hill v. Safeco Ins. Co. of Am., 93 F. Supp. 2d 1375 (M.D. Ga. 1999).
Reasonable grounds to contest preclude bad faith penalties.
- When as a matter of law, insurer had reasonable grounds to contest claim, then insurer could not have been held liable, under O.C.G.A. § 33-4-6, either for the imposition of bad faith penalties or for attorney fees. Rice v. State Farm Fire & Cas. Co., 208 Ga. App. 166, 430 S.E.2d 75 (1993).
Evidence adduced upon insurer's motion for summary judgment was sufficient to demonstrate that insurer had reasonable grounds to contest claimant's action for bad faith penalties, as insurer demonstrated that it did not refuse payment on policy for "frivolous" or "unfounded" reasons. Southern Fire & Cas. Ins. Co. v. Northwest Ga. Bank, 209 Ga. App. 867, 434 S.E.2d 729 (1993).
Insured's duty to cooperate as condition precedent.
- Because the insurance policy provided that the insured had to cooperate in an investigation of a claim, but the insured refused to provide the requested financial information to the insurer after the insured's home was destroyed by fire and the insurer believed the timing was suspicious and fraudulent, the insured's suit to recover under the policy and under O.C.G.A. § 33-4-6 failed. Farmer v. Allstate Ins. Co., 396 F. Supp. 2d 1379 (N.D. Ga. 2005).
Failure to pay loss gives cause of action under section, not in tort.
- Where the duties in question arose out of the insurance contract and there was a breach of contract on the part of the defendant by failing to pay the plaintiff the full amount of damages owed under the terms thereof, the damages sought to be recovered by the plaintiff are limited to the "bad faith" provisions of this section and the plaintiff does not have a cause of action in tort. Tate v. Aetna Cas. & Sur. Co., 149 Ga. App. 123, 253 S.E.2d 775 (1979).
Contract may supersede general statutory limitations on right of action.
- Regardless of the form of the action, if the source of the right claimed has evolved from a written contract of insurance, the limitations contained in it supersede any other general statutory limitations. Modern Carpet Indus., Inc. v. Factory Ins. Ass'n, 125 Ga. App. 150, 186 S.E.2d 586 (1971).
Contractual postponement of right to bring suit.
- Where the policy provides that no suit shall be brought for a recovery on the policy prior to the expiration of 60 days after proof of loss has been filed in accordance with the requirements of the policy, there can be no recovery by the beneficiary for damages and attorney's fees as provided by law for bad faith on the part of the insurance company in failing to pay the loss unless the company had failed to pay the loss within 60 days after the right to bring suit upon the policy and accrued and a demand for payment made. Adams v. Washington Fid. Nat'l Ins. Co., 48 Ga. App. 753, 173 S.E. 247 (1934).
Section does not apply to contract made out of state.
- This section does not apply to contract made in another state under the laws of that state covering property located in Georgia where insured resides. Coffin v. London & Edinburgh Ins. Co., 27 F.2d 616 (N.D. Ga. 1928). But see O.C.G.A. § 33-5-58, as to contracts with unauthorized foreign or alien insurers issued or delivered in this state or to resident or corporation authorized to do business in this state.
Recovery authorized by other state can be recovered by Georgia citizens.
- Such damages and attorney's fees as would be recoverable by citizens of another state can likewise be recovered by citizens of this state, where the contract sought to be enforced is to be performed in such sister state. Missouri State Life Ins. Co. v. Lovelace, 1 Ga. App. 446, 58 S.E. 93 (1907).
Section applies if policy arises out of business transacted in state.
- Where the policy sued on arises out of business transacted within this state, whether the contract of insurance be concluded here or elsewhere, this section applies. Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 12 S.E. 18 (1890).
Application of Erie Doctrine.
- In contractor's action against the subcontractor's insurer for damages the contractor paid to the clubhouse owner resulting from the subcontractor's defective installation of windows, the district court, sitting in diversity, held that O.C.G.A. § 33-4-6 was not applicable, as it was substantive for purposes of the Erie Doctrine, and the parties agreed that the policy was governed by Florida law. Pinkerton & Law, Inc. v. Royal Ins. Co., 227 F. Supp. 2d 1348 (N.D. Ga. 2002).
Preemption by federal law.- A state law that relates to insurance provided pursuant to an Employee Retirement Income Security Act (ERISA) of 1974, 29 U.S.C. §§ 1001-1461, plan but which is not part of the state insurance regulatory scheme is preempted by ERISA. Cockey v. Life Ins. Co. of N. Am., 804 F. Supp. 1571 (S.D. Ga. 1992).
Claims for bad faith damages and attorney's fees were preempted by federal law because the accidental death policy at issue was subject to Employee Retirement Income Security Act (ERISA). The bad faith claim was foreclosed, but attorney's fees could be recovered under ERISA itself. Cockey v. Life Ins. Co. of N. Am., 804 F. Supp. 1571 (S.D. Ga. 1992).
Section only applies between insureds and insurers.
- The "bad faith" claims under this section are available only as between insureds and their insurers. Spicer v. American Home Assurance Co., 292 F. Supp. 27 (N.D. Ga. 1967), aff'd, 402 F.2d 988 (5th Cir. 1968), cert. denied, 394 U.S. 946, 89 S. Ct. 1275, 22 L. Ed. 2d 479 (1969), commented on in 6 Ga. St. B.J. 225 (1969).
This section applies only to an "insurer," defined by former Code 1933, § 56-103 (see O.C.G.A. § 33-1-2). McGhee v. Kroger Co., 150 Ga. App. 291, 257 S.E.2d 361 (1979).
The victim of an automobile accident lacked standing to bring an action against a liability insurer as assignee of the insured's claims against the insurer. Owens v. Allstate Ins. Co., 216 Ga. App. 650, 455 S.E.2d 368 (1995); Southern Gen. Ins. Co. v. Ross, 227 Ga. App. 191, 489 S.E.2d 53 (1997).
When an injured party sued the insurer of a motorist against whom the injured party obtained a judgment, both to collect on the judgment and to assert a claim, as assignee of the motorist, for bad faith failure to settle, while the motorist could not assign any claim the motorist might have against the insurer for a bad faith failure to settle under O.C.G.A. § 33-4-6, or any claim for punitive damages, the motorist could assign any tort claim the motorist might have had for bad faith for compensatory damages. Canal Indem. Co. v. Greene, 265 Ga. App. 67, 593 S.E.2d 41 (2003).
In an insured's suit asserting claims for bad faith breach of contract under O.C.G.A. § 33-4-6 in connection with an insurer's denial of the insured's claim for proceeds of a long-term disability insurance policy, the parent corporation of the insurer was not liable under an alter ego theory; because the insurer was not insolvent and had funds sufficient to satisfy any judgment for the insured, the insurer's corporate veil could not be pierced so as to hold the parent liable, even if the insurer and the parent failed to maintain separate corporate existences. Adams v. UNUM Life Ins. Co. of Am., 508 F. Supp. 2d 1302 (N.D. Ga. 2007).
In an insured's suit asserting claims for bad faith breach of contract under O.C.G.A. § 33-4-6 in connection with an insurer's denial of the insured's claim for proceeds of a long-term disability insurance policy, the insured's claim against the parent corporation of the insurer failed because § 33-4-6 does not provide for a separate claim against a policy administrator such as the parent. Adams v. UNUM Life Ins. Co. of Am., 508 F. Supp. 2d 1302 (N.D. Ga. 2007).
O.C.G.A. § 33-4-6 only provides for a claim against an insurer; it does not provide for a separate claim against the administrator of an insurance plan. Adams v. UNUM Life Ins. Co. of Am., 508 F. Supp. 2d 1302 (N.D. Ga. 2007).
In an insured's suit asserting claims for bad faith breach of contract under O.C.G.A. § 33-4-6 in connection with an insurer's denial of the insured's claim for proceeds of a long-term disability insurance policy, the parent corporation of the insurer, which administered the insurer's policies, was not liable under a joint venture theory because the insured's claims sounded in contract, not negligence. Adams v. UNUM Life Ins. Co. of Am., 508 F. Supp. 2d 1302 (N.D. Ga. 2007).
Section does not apply to employer.
- When an employer was not an insurer as defined by former Code 1933, §§ 56-102, 56-103, 56-104, 56-105, 56-106, 56-107 (see O.C.G.A. § 33-1-2), it cannot be held liable for penalty and attorney fees provided for under statute covering workers' compensation insurer's initial failure to pay employee's indebtedness to a hospital. McGhee v. Kroger Co., 150 Ga. App. 291, 257 S.E.2d 361 (1979).
Section does not apply to fraternal benefit order.
- Fraternal benefit orders are not liable for attorney's fees and damages imposed on "insurance companies of this state" (now "insurer") under terms of this section for refusal, in bad faith, to pay losses. Brown v. Travelers' Protective Ass'n of Am., 45 Ga. App. 410, 165 S.E. 143 (1932).
Section applied broadly if contract is in essence insurance.
- There is a tendency in the courts of Georgia to apply this section broadly where the relation of insured and the insurer exists, as in the case where the contract under consideration is in its essence a contract of insurance. Bankers' Health & Life Ins. Co. v. Knott, 41 Ga. App. 639, 154 S.E. 194 (1930).
Third party beneficiary clearly intended.
- In an insurance dispute, the grant of summary judgment to the homeowner and house insurer was affirmed against the secondary insurer because the homeowner was specifically named on an endorsement as an additional insured on the secondary insurer's policy and that policy was a contract that clearly intended, on the contract's face, to benefit the homeowner as a third-party beneficiary. Southern Trust Insurance Company v. Cravey, 345 Ga. App. 697, 814 S.E.2d 802 (2018), cert. denied, No. S18C1319, 2018 Ga. LEXIS 820 (Ga. 2018).
Applies to fidelity insurance company.
- This section is not restricted in its application to any particular class of insurance companies, but applies to fidelity insurance companies, and to policies insuring employers against the defalcations of their employees. Bankers' Health & Life Ins. Co. v. Knott, 41 Ga. App. 639, 154 S.E. 194 (1930).
Applies to fidelity bond.- This section is applicable to refusal to pay on a fidelity bond, because such a bond is a contract of fidelity insurance and is governed by insurance law. Bank of Acworth v. Firemen's Ins. Co., 339 F. Supp. 1229 (N.D. Ga. 1972).
Prisoner's wife is not "holder" of sheriff's official bond.
- This section, allowing the "holder" of an insurance policy to recover, in addition to the sum named in the policy, reasonable attorney's fees, under certain conditions, was not applicable to a suit on a sheriff's official bond by wife of a prisoner beaten to death by sheriff and deputies. Hall v. National Sur. Corp., 72 Ga. App. 644, 34 S.E.2d 628 (1945).
Assignment of benefits by insured.
- After an insured assigned the right to insurance benefits to a hospital, the hospital, in effect, became the holder of the policy for all purposes, including the right to demand payment of the assigned benefits, and not until the right to benefits was reassigned did the insured become entitled to demand payment under O.C.G.A. § 33-4-6. Blue Cross & Blue Shield v. Bennett, 223 Ga. App. 291, 477 S.E.2d 442 (1996).
Section does not apply to actions for breach of duty.
- The penalty provisions of this section are inapplicable and provide no measure of recovery where the insured's suit is not upon the contract but rather in tort and naturally involves a duty and an alleged breach of that duty. United States Fid. & Guar. Co. v. Evans, 116 Ga. App. 93, 156 S.E.2d 809, aff'd, 223 Ga. 789, 158 S.E.2d 243 (1967).
Section does not apply to actions for fraud or return of premiums.
- This section, as to the recovery of attorney's fees and damages in a suit on an insurance policy, contemplates a loss for which the insurer is liable under the terms of the policy and does not apply to a suit to recover premiums which the insured paid when they ought to have been waived under a clause providing for their waiver in case of disability. Metropolitan Life Ins. Co. v. Saul, 182 Ga. 284, 185 S.E. 266 (1936).
This section has reference to claims on policies of insurance and not to actions for fraud and for the return of premiums. Bankers Health & Life Ins. Co. v. Plumer, 67 Ga. App. 720, 21 S.E.2d 515 (1942).
Right to attorney's fees is not part of original claim.
- The provision for attorney's fees is no part of the original demand against the insurance company and cannot apply until at least 60 days after any loss shall have occurred, and then only can apply when it is made to appear to the jury that the refusal was in bad faith; such fees cannot be awarded except when the matter is brought before a jury for its determination, and they are not a part of the claim sued on, but may be awarded as costs or smart money. National-Ben Franklin Fire Ins. Co. v. Darby, 48 Ga. App. 394, 172 S.E. 819 (1934).
An insurance company is not liable for damages and attorney's fees for bad faith in refusing to settle under this section. Cotton States Mut. Ins. Co. v. Phillips, 110 Ga. App. 581, 139 S.E.2d 412 (1964), later appeal, 112 Ga. App. 600, 145 S.E.2d 643 (1965).
Bad faith attorney fees unavailable when insurer's reasons for denying coverage are not unreasonable.
- Bad faith attorney fees were unavailable under O.C.G.A. § 33-4-6 based on a jury finding that an insurer wrongfully denied an insured's claim for roof damage to a commercial building caused by decayed roof trusses because the insurer's unsuccessful argument that the trusses were not "hidden from view" and that the damage could have been visually detected was not unreasonable. Johnston v. Companion Prop. & Cas. Ins. Co., 318 Fed. Appx. 861 (11th Cir. 2009)(Unpublished).
Liable only for failure to pay loss covered by policy.
- This section does not provide for damages for a refusal to settle a claim, but only for failure to pay a loss covered by a policy. Cotton States Mut. Ins. Co. v. Phillips, 110 Ga. App. 581, 139 S.E.2d 412 (1964), later appeal, 112 Ga. App. 600, 145 S.E.2d 643 (1965).
Insurer may be liable for damages for bad faith refusal to settle.
- If the insurance company in bad faith refused to settle the judgments, which exceeded the limits of the policy, for an amount within the limits of the policy plus an additional amount provided by the insured, the insurance company would be liable for the full amount of the judgments. Cotton States Mut. Ins. Co. v. Phillips, 110 Ga. App. 581, 139 S.E.2d 412 (1964), later appeal, 112 Ga. App. 660, 145 S.E.2d 643 (1965).
Insurer's obligation to pay settlement is not greater than obligation to pay judgment.- An insurer's obligation to pay on behalf of its insured an amount agreed upon in settlement is not any greater than its obligation to pay legally determined damages as embodied in a judgment. Tennessee Corp. v. Hartford Accident & Indem. Co., 326 F. Supp. 520 (N.D. Ga. 1971), aff'd, 463 F.2d 548 (5th Cir. 1972).
Payment of emergency medical expenses held loss incurred under policy.
- Where the authority given by a policy of insurance does not only specifically authorize, but might reasonably be construed to require, the insured to safeguard the interests of the insurer by providing reasonable medical relief to persons to whom the insured is liable in all cases of emergency where it is not palpably clear and plain that the insured would not be liable for the injury, the liability assumed and paid by the insured as agent for the insurer amounts to a loss incurred by the insured under the terms of the policy within the meaning of this section. Employers' Liab. Assurance Corp. v. Manget Bros. Co., 45 Ga. App. 721, 165 S.E. 770 (1932).
Refusal to defend and pay costs held to make insurer liable for penalty.
- Where the policy shows on its face that the defendant, if it should have defended another action against the plaintiff, would be liable for the costs of defense, including court costs and attorney fees, and the defendant's refusal to undertake this duty was in bad faith within the meaning of this section, it would be liable for the statutory penalty also. Hughes v. State Farm Mut. Auto. Ins. Co., 101 Ga. App. 443, 114 S.E.2d 61 (1960).
Insured held entitled to monthly benefit multiplied by ten.
- When insurance policy describes the period of benefit payments in the very plainest of words as ten months, and not for up to ten months or during loss of employment or during disability, the insured is correct in the insured's contention that the insured is entitled to a payment equal to the stipulated monthly benefit multiplied by ten. Guarantee Trust Life Ins. Co. v. Davis, 244 Ga. 541, 261 S.E.2d 336 (1979).
Demand on recovery in excess of liability does not justify denial of any liability.
- The fact that the plaintiff demanded only $432.00 benefits, recovered $580.80, and was entitled to recover only $360.00, does not justify the defendant's refusal to pay any amount of the claim or to tender the proper amount, where it based its refusal solely upon a denial of any liability whatever. Metropolitan Life Ins. Co. v. Lovett, 50 Ga. App. 763, 179 S.E. 253 (1935).
Penalty is not precluded although full claim is not recovered.
- A failure on the part of the insured to recover the full amount claimed and sued for will not, after a denial of any liability whatsoever by the insurance company, preclude the insured from recovering against the insurance company penalty or attorney's fees under this section. Central Mfrs. Mut. Ins. Co. v. Graham, 24 Ga. App. 199, 99 S.E. 434 (1919); Hanover Ins. Co. v. Hallford, 127 Ga. App. 322, 193 S.E.2d 235 (1927); New York Life Ins. Co. v. Williamson, 53 Ga. App. 28, 184 S.E. 755 (1936).
Recovery of under this section is not prevented by failure to recover full amount of claim. Atlantic Mut. Fire Ins. Co. v. Laney, 38 Ga. App. 1, 142 S.E. 571, cert. denied, 38 Ga. App. 816 (1928).
Penalty not precluded unless recovery is substantially less than claim.
- The evidence fails to show bad faith on the part of the defendant where the plaintiff claimed the full amount of the policy and the jury found the defendant was justified in resisting this claim, the amount found by them as due under the policy being considerably less than the amount claimed. Southern Mut. Ins. Co. v. Turnley, 100 Ga. 296, 27 S.E. 975 (1897).
Where the amount of the verdict is substantially less than the amount claimed in the proofs of loss and sued for, a verdict for attorney's fees and damages is unauthorized under this section. Queen Ins. Co. v. Peters, 10 Ga. App. 289, 73 S.E. 536 (1912); Love v. National Liberty Ins. Co., 157 Ga. 259, 121 S.E. 648 (1924); Firemen's Ins. Co. v. Larsen, 52 Ga. App. 140, 182 S.E. 677 (1935); Georgia Farm Bureau Mut. Ins. Co. v. Boney, 113 Ga. App. 459, 148 S.E.2d 457 (1966).
Recovery of attorney fees barred if underlying claims fail.
- In an insured's suit asserting claims for breach of contract and bad faith breach of contract in connection with an insurer's denial of the insured's claim for proceeds of a disability insurance policy, the parent corporation of the insurer, which administered the insurer's policies, was not liable upon the insured's claim for attorney fees and expenses under O.C.G.A. § 33-4-6 because the insured had not succeeded on its underlying claims against the parent, which was determined not to be an alter ego of the insurer. Adams v. UNUM Life Ins. Co. of Am., 508 F. Supp. 2d 1302 (N.D. Ga. 2007).
No interest recoverable on unliquidated amount.
- Interest from the date of the loss was not a recoverable item where the amount sought was not liquidated. Fidelity & Cas. Co. v. Mangum, 102 Ga. App. 311, 116 S.E.2d 326 (1960).
Penalty is based on loss without including attorney's fees.
- Where the amount recovered is the amount sought including attorney's fees and interest, as well as the loss under the policies it was held that this section did not authorize the penalty of 25 percent to be based on the total amount recovered. Fidelity & Cas. Co. v. Mangum, 102 Ga. App. 311, 116 S.E.2d 326 (1960).
The amount recoverable for attorney's fees under this section should be regarded as "costs," and hence, where a reasonable amount for attorney's fees was necessary to bring the amount in controversy up to the minimum set by federal statute, the action, though between citizens of different states, was not within the jurisdiction of the federal court. Peters v. Queen Ins. Co. of Am., 182 F. 113 (S.D. Ga. 1910).
Attorney's fees recoverable only in accordance with section, not actual charges.
- For refusal in bad faith to pay, the insurer is liable for "reasonable attorney's fees," the amount of which is to be determined in accordance with the standards set forth in this section and not by what the attorney actually charged the insured. Motors Ins. Corp. v. Roper, 136 Ga. App. 224, 221 S.E.2d 55 (1975).
Attorney's work to meet unfounded defense may be considered.
- In the event bad faith is shown in the refusal to pay the claim by the insurance company, the additional work, time, and effort by the plaintiff's attorney to meet an unfounded affirmative defense by the defendant would be a proper element to consider in awarding reasonable attorney's fees for the prosecution of the case against the company. Reserve Life Ins. Co. v. Ayers, 101 Ga. App. 887, 115 S.E.2d 477 (1960).
Merely pleading unfounded defense does not justify punitive damages and attorney's fees.
- There is no provision of law which allows punitive damages and attorney's fees because the defendant pleads an unfounded defense. Reserve Life Ins. Co. v. Ayers, 101 Ga. App. 887, 115 S.E.2d 477 (1960).
A contingent fee may or may not be "reasonable." Old Equity Life Ins. Co. v. Barnard, 120 Ga. 596, 171 S.E.2d 636 (1969).
Contingent fee is limited to recovery, not amount sued for.
- A contingent fee is by definition a proportionate part of a judgment recovered by the attorney for his client. It cannot, however, mean a proportionate amount of the sum sued for, whether recovered or not, because the amount sued for is not contingent; it is known from the time of inception of the suit. Old Equity Life Ins. Co. v. Barnard, 120 Ga. App. 596, 171 S.E.2d 636 (1969).
Insurer's default insufficient to establish liability.
- That a title insurer defaulted by failing to answer the insureds' complaint did not require the trial court to award the insureds' attorney fees and penalties under O.C.G.A. § 33-4-6 because the complaint did not establish by well-pled facts, nor the fair inferences to be drawn therefrom, the insurer's liability for fees and penalties under § 33-4-6. Jimenez v. Chi. Title Ins. Co., 310 Ga. App. 9, 712 S.E.2d 531 (2011).
Failure to state claim.
- Claims under O.C.G.A. § 33-4-6 for bad faith and derivative liability were properly dismissed because the plaintiff was not entitled to relief under any state of provable facts as allegations established that investigation into and adjustment of the claim was ongoing when the plaintiff demanded payment from the insurance company on January 16, 2015. Villa Sonoma at Perimeter Summit Condo. Ass'n v. Commercial Indus. Bldg. Owners Alliance, Inc., 349 Ga. App. 666, 824 S.E.2d 738 (2019).
Cited in South Carolina Ins. Co. v. Hunnicutt, 107 Ga. App. 366, 130 S.E.2d 239 (1963); GEICO v. Hardin, 108 Ga. App. 230, 132 S.E.2d 513 (1963); GEICO v. Hardin, 219 Ga. 474, 133 S.E.2d 873 (1963); Nationwide Mut. Ins. Co. v. Barnes, 108 Ga. App. 643, 134 S.E.2d 552 (1963); Newark Ins. Co. v. Smith, 108 Ga. App. 839, 135 S.E.2d 339 (1964); American Family Life Ins. Co. v. Glenn, 109 Ga. App. 122, 135 S.E.2d 442 (1964); Cotton States Mut. Ins. Co. v. Davis, 110 Ga. App. 601, 139 S.E.2d 427 (1964); Sun Ins. Co. v. League, 112 Ga. App. 625, 145 S.E.2d 768 (1965); Iowa State Travelers Mut. Ass'n v. Cadwell, 113 Ga. App. 128, 147 S.E.2d 461 (1966); Hartford Accident & Indem. Co. v. Grant, 113 Ga. App. 795, 149 S.E.2d 712 (1966); Starling v. Gulf Life Ins. Co., 382 F.2d 701 (5th Cir. 1967); Nationwide Mut. Fire Ins. Co. v. Jenkins, 389 F.2d 373 (5th Cir. 1967); Travelers Ins. Co. v. Page, 120 Ga. App. 72, 169 S.E.2d 682 (1969); Climatrol Indus., Inc. v. Home Indem. Co., 316 F. Supp. 314 (N.D. Ga. 1970); Ramsden v. GEICO, 123 Ga. App. 163, 179 S.E.2d 671 (1971); Harvey v. Travelers Ins. Co., 339 F. Supp. 262 (N.D. Ga. 1971); Cash v. Balboa Ins. Co., 130 Ga. App. 60, 202 S.E.2d 252 (1973); State Farm Mut. Ins. Co. v. Potts, 131 Ga. App. 26, 205 S.E.2d 43 (1974); Allstate Ins. Co. v. Harris, 133 Ga. App. 567, 211 S.E.2d 783 (1974); Roper v. Motors Ins. Corp., 139 Ga. App. 788, 229 S.E.2d 481 (1976); Piedmont Life Ins. Co. v. Lea, 140 Ga. App. 400, 231 S.E.2d 147 (1976); Interstate Life & Accident Ins. Co. v. Brown, 141 Ga. App. 195, 233 S.E.2d 44 (1977); Jones v. Associated Indem. Corp., 143 Ga. App. 139, 237 S.E.2d 651 (1977); United Ins. Co. of Am. v. Dixon, 143 Ga. App. 133, 237 S.E.2d 661 (1977); Bains v. Hartford Fire Ins. Co., 440 F. Supp. 15 (N.D. Ga. 1977); Lee v. Safeco Ins. Co., 144 Ga. App. 519, 241 S.E.2d 627 (1978); Georgia Farm Bureau Mut. Ins. Co. v. Washington, 145 Ga. App. 216, 243 S.E.2d 639 (1978); Kennesaw Life & Accident Ins. Co. v. Hall, 147 Ga. App. 221, 248 S.E.2d 524 (1978); Blue Cross of Georgia/Atlanta, Inc. v. Grenwald, 148 Ga. App. 486, 251 S.E.2d 585 (1978); Southern United Life Ins. Co. v. Nelson, 151 Ga. App. 798, 261 S.E.2d 742 (1979); Georgia-Carolina Brick & Tile Co. v. Brown, 153 Ga. App. 747, 266 S.E.2d 531 (1980); Ken-Mar Constr. Co. v. Bowen, 245 Ga. 676, 266 S.E.2d 796 (1980); Security Life Ins. Co. v. Blitch, 155 Ga. App. 167, 270 S.E.2d 349 (1980); Sentry Indem. Co. v. Sharif, 156 Ga. App. 828, 280 S.E.2d 354 (1980); Hutsell v. U.S. Life Title Ins. Co., 157 Ga. App. 845, 278 S.E.2d 730 (1981); Allstate Ins. Co. v. Ammons, 160 Ga. App. 257, 286 S.E.2d 765 (1981); Nationwide Mut. Fire Ins. Co. v. Rhee, 160 Ga. App. 468, 287 S.E.2d 257 (1981); Travelers Ins. Co. v. King, 160 Ga. App. 473, 287 S.E.2d 381 (1981); Davis v. Cincinnati Ins. Co., 160 Ga. App. 813, 288 S.E.2d 233 (1982); Hawkins v. Travelers Ins. Co., 162 Ga. App. 231, 290 S.E.2d 348 (1982); Allstate Ins. Co. v. Ammons, 163 Ga. App. 385, 294 S.E.2d 610 (1982); Shepherd v. Metropolitan Property & Liab. Ins. Co., 163 Ga. App. 650, 294 S.E.2d 638 (1982); Cummings v. Prudential Ins. Co. of Am., 542 F. Supp. 838 (S.D. Ga. 1982); Binns v. Metropolitan Atlanta Rapid Transit Auth., 168 Ga. App. 261, 308 S.E.2d 674 (1983); Southern Trust Ins. Co. v. First Fed. Sav. & Loan Ass'n, 168 Ga. App. 899, 310 S.E.2d 712 (1983); Bowers v. Continental Ins. Co., 753 F.2d 1574 (11th Cir. 1985); Consulting Eng'rs Group, Inc. v. Pace Constr., 613 F. Supp. 1192 (N.D. Ga. 1985); All Am. Assurance Co. v. Brown, 177 Ga. App. 402, 339 S.E.2d 611 (1985); Gibbs v. Jefferson-Pilot Fire & Cas. Ins. Co., 178 Ga. App. 544, 343 S.E.2d 758 (1986); Northern Assurance Co. of Am. v. Karp, 257 Ga. 40, 354 S.E.2d 129 (1987); Hall v. Time Ins. Co., 663 F. Supp. 599 (M.D. Ga. 1987); Liberty Nat'l Fire Ins. Co. v. F & M Bank & Trust Co., 189 Ga. App. 759, 377 S.E.2d 528 (1989); Vulcan Life Ins. Co. v. Davenport, 191 Ga. App. 79, 380 S.E.2d 751 (1989); Claussen v. Aetna Cas. & Sur. Co., 754 F. Supp. 1576 (S.D. Ga. 1990); Mimbs v. Commercial Life Ins. Co., 832 F. Supp. 354 (S.D. Ga. 1993); Blue Cross & Blue Shield of Ga., Inc. v. Sheehan, 215 Ga. App. 228, 450 S.E.2d 228 (1994); Department of Transp. v. Hardaway Co., 216 Ga. App. 262, 454 S.E.2d 167 (1995); Georgia Farm Bureau Mut. Ins. Co. v. Richardson, 217 Ga. App. 201, 457 S.E.2d 181 (1995); Southern Fire & Cas. Co. v. Freeman, 222 Ga. App. 308, 474 S.E.2d 195 (1996); Caribbean Lumber Co. v. Phoenix Assurance Co., 227 Ga. App. 236, 488 S.E.2d 718 (1997); Burt Co. v. Clarendon Nat'l Ins. Co., 385 Fed. Appx. 892 (11th Cir. 2010)(Unpublished); Auto Owners Ins. Co. v. Gay Constr. Co., 332 Ga. App. 757, 774 S.E.2d 798 (2015).
Demand for Payment
Demand for payment necessary for attorney's fees or penalty.
- To render an insurance company liable for attorney's fees under the provisions of this section, a demand and a refusal to pay, 60 days before suit is brought, must be plainly averred, and the truth of such averment must be established on the trial. Lester v. Piedmont & Arlington Life Ins. Co., 55 Ga. 475 (1875); Ancient Order United Workmen v. Brown, 112 Ga. 545, 37 S.E. 890 (1901); Globe & Rutgers Fire Ins. Co. v. Jewell-Loudermilk Co., 36 Ga. App. 538, 137 S.E. 286, cert. denied, 36 Ga. App. 825, S.E. (1927).
The liability of an insurer for attorney's fees and damages cannot accrue until the lapse of 60 days from the date of a demand made when there was a right to demand. National Cas. Co. v. Borochoff, 45 Ga. App. 745, 165 S.E. 905 (1932).
Action on an insurance policy cannot be amended for the purpose of recovering damages and attorney's fees against the defendant, where at the time of the commencement of the suit there was not liability upon the part of the defendant therefor, in that it appears that there was no demand for payment of the amount due under the policy, and refusal to pay, more than 60 days before the commencement of the suit. Massachusetts Mut. Life Ins. Co. v. Montague, 63 Ga. App. 137, 10 S.E.2d 279 (1940).
To recover attorney's fees or penalty for bad faith, a demand for payment of the loss must be made more than 60 days prior to filing of the suit. Hanover Ins. Co. v. Hallford, 127 Ga. App. 322, 193 S.E.2d 235 (1972).
Where the plaintiffs sent their demand for payment to the defendant insurance company on the very day they filed suit, the insurance company was entitled to summary judgment on the plaintiffs' claims under the statute. Cagle v. State Farm Fire & Cas. Co., 236 Ga. App. 726, 512 S.E.2d 717 (1999).
Since insured did not make a demand for payment before filing suit, he was not entitled to maintain a claim for bad faith penalties and attorney fees against his insurer for nonpayment of an alleged loss under a policy. Stedman v. Cotton States Ins. Co., 254 Ga. App. 325, 562 S.E.2d 256 (2002).
Standing alone, a proof of loss is not a demand for payment thereof under this section. Guarantee Reserve Life Ins. Co. v. Norris, 219 Ga. 573, 134 S.E.2d 774 (1964).
Petition did not allege failure to pay loss.
- In an action upon an insurance policy, when the only allegation as to a demand upon the insurance company for payment of the loss was contained in the allegation as to the filing of the proof of loss, which was filed prior to December 7, 1925, on which date the insurance company acknowledged receipt of proof of loss and denied liability and refused payment of loss, and when the action was filed on January 12, 1926, the petition did not allege a failure of the insurance company to pay the loss within 60 days after demand. Continental Life Ins. Co. v. Wilson, 36 Ga. App. 540, 137 S.E. 403 (1927).
Inadequate bad faith demand by insured.
- Due to the inadequacies of an insured's bad faith demand, as its attempt to equate the submission of a claim with the demand for payment required by O.C.G.A. § 33-4-6 was directly contravened by case law, and the fact that the insurer met all its obligations under the policy the insurer issued to its insured, the trial court did not err in denying summary judgment to the insured and granting summary judgment on the insurer's cross-motion, authorizing the insurer to quitclaim the refinanced property to the insurer in full satisfaction of its duties and obligations under the policy. BayRock Mortg. Corp. v. Chi. Title Ins. Co., 286 Ga. App. 18, 648 S.E.2d 433 (2007), cert. denied, 2008 Ga. LEXIS 108 (Ga. 2008).
No particular language is necessary to constitute a demand under this section. Hanover Ins. Co. v. Hallford, 127 Ga. App. 322, 193 S.E.2d 235 (1972).
This section does not prescribe any particular form in which such demand shall be made, nor whether it shall be in writing or a verbal demand will suffice. Hull v. Alabama Gold Life Ins. Co., 79 Ga. 93, 3 S.E. 903 (1887).
Ample evidence of demand.
- When proofs of death were promptly made out upon company forms, and repeated demands for payment were thereafter made by the agent of the beneficiary, who was recognized and treated as such by both parties, and after the time for payment fixed by the policy the beneficiary notified the company and sent a person to its principal office, who made a direct demand for payment, there was ample evidence of a demand made under this section. Hull v. Alabama Gold Life Ins. Co., 79 Ga. 93, 3 S.E. 903 (1887).
Transactions constituted demand and refusal to pay.
- When the insured presented the insured's policies to the insurance company for payment; the insured also had prepared and sent in proofs of loss and was informed by the company that they had no liability as to the accidental death policy; the company again denied liability on the ground of accord and satisfaction in answer to a letter written by the insured's attorneys inquiring the reason for denial of the claim; and all of these acts took place at a time when the policy was due and payable, the transactions constituted a demand and refusal to pay within the purview of this section. Mutual Sav. Life Ins. Co. v. Hines, 96 Ga. App. 442, 100 S.E.2d 466 (1957).
No particular language is necessary to constitute a demand, and the insistence of the plaintiff that the plaintiff be paid even if it meant resorting to the courts after the adjuster informed the plaintiff that the insurer would not pay the plaintiff anything unless the plaintiff signed a "nonwaiver" agreement was a sufficient demand to comply with this section. Cotton States Mut. Ins. Co. v. Clark, 114 Ga. App. 439, 151 S.E.2d 780 (1966).
Pre-suit demand insufficient.
- Trial court properly determined that the insured's pre-suit communications with the insurer as to the expenses incurred for tree and debris removal did not satisfy the pre-suit demand requirement because the threat of litigation pertained only to those items and did not cover other expenses sought by the insured. Thompson v. Homesite Insurance Company of Ga., 345 Ga. App. 183, 812 S.E.2d 541 (2018), cert. denied, No. S18C1044, 2018 Ga. LEXIS 738 (Ga. 2018).
Failure to name particular sum does not make demand insufficient.
- The demand made by plaintiff's attorney more than 60 days prior to the action would be sufficient, and the failure to demand payment in any particular sum would not render the demand insufficient. Hanover Ins. Co. v. Hallford, 127 Ga. App. 322, 193 S.E.2d 235 (1927).
Failure to assert bad faith.
- Beneficiary's telephone call demanding payment of life insurance proceeds two days after her husband's death, before the insurer received formal evidence of the loss, and not asserting a bad faith claim, was not a sufficient demand under O.C.G.A. § 33-4-6. Primerica Life Ins. Co. v. Humfleet, 217 Ga. App. 770, 458 S.E.2d 908 (1995).
Including unauthorized item in demand held not to bar penalty and attorney's fees.
- The fact that the insured who was liable to an injured third party and had paid the party's medical expenses, when demanding payment from the insurer, might have included in the demand a specified amount disbursed by the insured for the burial expenses of the person injured, who had afterwards died, would not defeat the right to sue for and recover the penalty and attorney's fees authorized under this section, where the response to such a demand was failure to pay any amount and a statement that it appeared to the insurer that the insured had "paid these various charges not on account of the liability involved, but on account of the contracts you made with various parties for the treatment of this injured," and where there was no objection to the amount of the claim because it included the burial expenses of the injured person in addition to the itemized amounts paid for her medical treatment. Employers' Liab. Assurance Corp. v. Manget Bros. Co., 45 Ga. App. 721, 165 S.E. 770 (1932).
Demand made after counterclaim filed is improper.
- When, in insurer's declaratory judgment action, insured's counterclaim seeking penalties for insurer's bad faith refusal to pay claim was filed before his demand for payment, the demand was not proper. Howell v. Southern Heritage Ins. Co., 214 Ga. App. 536, 448 S.E.2d 275 (1994).
Demand must be made when there is right to demand payment.
- Under this section, the liability of the insurer for attorney's fees and damages cannot accrue until the lapse of 60 days from the date of a demand made when there is a right to demand payment. New Zealand Fire Ins. Co. v. Brewer, 29 Ga. App. 773, 116 S.E. 922 (1923); American Nat'l Ins. Co. v. Brantley, 38 Ga. App. 505, 144 S.E. 332 (1928); Life Ins. Co. v. Burke, 219 Ga. 214, 132 S.E.2d 737 (1963).
As a finding of bad faith in refusal to pay insurance benefits is dependent upon the demand being made at a time when the right to make demand exists, so also is a finding of bad faith in refusal to pay no-fault insurance benefits dependent upon the claim being made at a time when it is a valid claim. Doran v. Travelers Indem. Co., 254 Ga. 63, 326 S.E.2d 221 (1985).
Immediate payment is in order.
- The penalties accrue 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'l Ins. Co. v. Brantley, 38 Ga. App. 505, 144 S.E. 332 (1928); National Cas. Co. v. Borochoff, 45 Ga. App. 745, 165 S.E. 905 (1932); Napp v. American Cas. Co., 110 Ga. App. 673, 139 S.E.2d 425 (1964).
Demand is not in order if made when policy gives insurer time to investigate.
- The 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. Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga. App. 697, 172 S.E.2d 159 (1969).
Demand failed to include critical facts regarding insured's loss.
- Based upon a lender's failure to notify the lender's title insurer of critical facts pertaining to the lender's loss in the lender's bad faith demand letter, including the actual amount of the lender's loss from the defect in title, the court could not hold the title insurer liable for bad faith under O.C.G.A. § 33-4-6. Doss & Assocs. v. First Am. Title Ins. Co., 325 Ga. App. 448, 754 S.E.2d 85 (2013).
Demand made before time set by policy for payment after proof of loss.
- The liability of the insurer for attorney's fees and damages could not accrue until the lapse of 60 days from the date of a demand made when there was a right to demand; thus, where by the terms of the policy it was not payable until 60 days from the submission of proofs of loss and it appeared that the only demand for payment was made with the proof of loss, which was before the plaintiff had a right to make an absolute demand for payment, the evidence did not authorize a recovery of attorney's fees and damages. Philadelphia Fire & Marine Ins. Co. v. Burroughs, 176 Ga. 260, 168 S.E. 36 (1932).
Where it appears from the record and the admissions of counsel for the plaintiff that demand, if any, was made before or at the time proofs of loss were filed, which time was before the plaintiff had a right to make an absolute demand for payment, the recovery of damages and attorney's fees was not authorized by the evidence. Life Ins. Co. v. Burke, 219 Ga. 214, 132 S.E.2d 737 (1963).
Proof of loss filing waived. Whether a demand was good under former Code 1933, §§ 56-706 and 56-1206 depends on whether it was made at a time when immediate payment could be exacted, which in turn depends on whether the filing (not merely the time of filing) of proof of loss forms was waived under former Code 1933, § 56-2427 (see O.C.G.A. § 33-24-39). Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga. App. 697, 172 S.E.2d 159 (1969); Britt v. Independent Fire Ins. Co., 184 Ga. App. 225, 361 S.E.2d 226 (1987).
Proof of loss filed after bad faith demand improper.
- Bad faith claim brought by an insured against an insurer for failure to pay a claim for extra expenses incurred by the insured after the insured suffered a fire loss at one of the insured's bakeries failed because the insured made the insured's bad faith demand before the insured filed any proof of loss, and therefore, no right to demand immediate payment existed. Lavoi Corp. v. Nat'l Fire Ins. of Hartford, 293 Ga. App. 142, 666 S.E.2d 387 (2008).
Demand may accompany proof of loss where policy made payable then.
- Where the policy became due and payable immediately upon proof of loss, a contemporaneous demand made at the time of the filing of the proof of loss meets the requirements of a demand when there was a right to demand. American Nat'l Ins. Co. v. Brantley, 38 Ga. App. 505, 144 S.E. 332 (1928).
There is no equitable exception to the 60-day rule for instances in which the lawsuit is filed shortly before the expiration of a limitations period. Cagle v. State Farm Fire & Cas. Co., 236 Ga. App. 726, 512 S.E.2d 717 (1999).
Submission of medical bill does not constitute demand.
- The mere submission of medical bills does not necessarily constitute an actual demand for payment within the meaning of O.C.G.A. § 33-4-6. Blue Cross & Blue Shield of Georgia/Atlanta, Inc. v. Merrell, 170 Ga. App. 86, 316 S.E.2d 548 (1984).
An insurer's denial of a claim does not waive the 60-day statutory period, and the insured's filing suit within this period, without making a demand for payment, precludes the recovery of a statutory penalty and attorney's fees. Kilpatrick Marine Piling v. Fireman's Fund Ins. Co., 795 F.2d 940 (11th Cir. 1986).
Bad Faith Refusal to Pay
Exclusive remedy.
- O.C.G.A. § 33-4-6 provided the exclusive remedy for an insurer's bad faith refusal to pay insurance proceeds. As a result, the insured had no independent claim for consequential damages, and summary judgment was granted to the insurance company on that claim. B.S.S.B., Inc. v. Owners Ins. Co., F. Supp. 2d (M.D. Ga. Jan. 20, 2010).
No recovery under section unless refusal to pay made in bad faith.
- Where the evidence fails to authorize a finding of bad faith, the jury is not authorized to find an amount against the company representing attorney's fees. New York Life Ins. Co. v. Ittner, 64 Ga. App. 806, 14 S.E.2d 203 (1941).
Where it is made to appear that the refusal of the company to pay the loss was in bad faith, attorney's fees may be authorized. American Fire & Cas. Co. v. Barfield, 81 Ga. App. 887, 60 S.E.2d 383 (1950).
Attorney's fees and the penalty provided for should never be permitted unless the defendant acts in bad faith - that is, that the defense is frivolous and unfounded. Continental Cas. Co. v. Owen, 90 Ga. App. 200, 82 S.E.2d 742 (1954).
Unless the jury finds the action to have been in bad faith, the penalty is not assessed. Reserve Life Ins. Co. v. Gay, 96 Ga. App. 601, 101 S.E.2d 158 (1957), rev'd on other grounds, 214 Ga. 2, 102 S.E.2d 492 (1958).
The insurance company is liable for attorney's fees and penalty only where the refusal to pay is in bad faith, frivolous, and unfounded. Mead Corp. v. Liberty Mut. Ins. Co., 107 Ga. App. 167, 129 S.E.2d 162 (1962), rev'd on other grounds, 219 Ga. 6, 131 S.E.2d 534 (1963).
Insured was not entitled to proceeds of a business buy out expense insurance policy, because the insured was not employed full-time prior to becoming disabled and the buy out was not accomplished through the practice and pursuant to a buy-sell agreement. Oak Rd. Family Dentistry, P.C. v. Provident Life & Accident Ins. Co., 370 F. Supp. 2d 1317 (N.D. Ga. Feb. 4, 2005).
Even assuming an administratrix's original complaint was deficient for not setting forth allegations that, if proven, would have established the notice requirements to recover extra-contractual damages against a life insurance company for bad faith in denying a claim for insurance death benefits under O.C.G.A. § 33-4-6, it was clear that the administratrix's proposed amended complaint cured any defects that might have existed; thus, the administratrix adequately pleaded a breach of contract claim, including a claim for extra-contractual damages and attorney fees. Garrett v. Unum Life Ins. Co. of Am., 427 F. Supp. 2d 1158 (M.D. Ga. 2005).
Summary judgment for an insurance company on a motorist's claim against it was proper since there was no evidence of bad faith; the insurance company did not settle the motorist's property damage claim because its adjuster believed that, at the motorist's request, the motorist's insurer was assuming responsibility for settling the claim; an adjuster with the motorist's insurer confirmed that the motorist's insurer had "handled" the motorist's claim, and, further, the motorist sent a demand letter to the motorist's insurer on the same day that the motorist sent a demand letter to the insurance company, indicating that the motorist was still looking to the motorist's own insurer for payment. King v. Atlanta Cas. Ins. Co., 279 Ga. App. 554, 631 S.E.2d 786 (2006).
Trial court erred in denying the insured's motion for summary judgment as to the insured's request for attorney's fees for bad-faith refusal to pay only as to the refusal to pay for the burglary damage and not the lost rent claim. Auto-Owners Ins. Co. v. Neisler, 334 Ga. App. 284, 779 S.E.2d 55 (2015).
Although the general contractor's new claim against the surety for surety bad faith, arguing that the surety stubbornly refused to meet the surety's obligations under the bonds despite clear and undisputed evidence of the surety's liability under the bond because there were genuine issues of material fact as to whether the general contractor was entitled to coverage under the payment and performance bonds, the surety had reasonable grounds to contest the general contractor's claims and bad-faith penalties were not warranted. Choate Constr. Co. v. Auto-Owners Ins. Co., 335 Ga. App. 331, 779 S.E.2d 465 (2015).
Absence of bad faith prevents punitive and attorney fees awards.
- Because the trial court's ruling that neither the insurance agent or company had a contract of insurance with the tree service company owner in effect on the date of the accident, no bad faith claim could be asserted against either defendant for failure to pay a claim arising from the accident; thus, the claims for punitive damages and attorney fees also failed since those claims were derivative of the underlying claims. Popham v. Landmark Am. Ins. Co., 340 Ga. App. 603, 798 S.E.2d 257 (2017).
"Acting in bad faith" in breach of contract.
- Refusal to pay in "bad faith" under former Code 1933, §§ 56-706 and 56-1206 (see O.C.G.A. § 33-4-6) was not the legal equivalent of "having acted in bad faith" under former Civil Code 1895, § 3796 (see O.C.G.A. § 13-6-11). Traders Ins. Co. v. Mann, 118 Ga. 381, 45 S.E. 426 (1903); New York Life Ins. Co. v. Bradford, 57 Ga. App. 657, 196 S.E. 92 (1938).
The "bad faith" referred to in former Code 1933, §§ 20-1404 56-706, and 56-1206 (see O.C.G.A. §§ 13-6-11 and33-4-6) was not the same. Canal Ins. Co. v. Lawson, 123 Ga. App. 376, 181 S.E.2d 91 (1971).
Motion to dismiss a breach of contract claim against an insurer was denied because an insured could have brought a breach of contract case and a claim for bad faith refusal to pay under O.C.G.A. § 33-4-6 simultaneously. Estate of Thornton v. Unum Life Ins. Co. of Am., 445 F. Supp. 2d 1379 (N.D. Ga. 2006).
Claim not good under this section may be good under section on breach.
- Although the plaintiff's allegations did not support the claim for attorney's fees under former Civil Code 1910, §§ 2549 and 4392 (see O.C.G.A. §§ 13-6-11 and33-4-6), the allegations of bad faith on the part of the defendant relative to the transaction and dealings out of which the cause of action arose rendered the claim for attorney's fees good as against demurrer (now motion to dismiss). Glover v. Bankers' Health & Life Ins. Co., 30 Ga. App. 308, 117 S.E. 665 (1923).
"Bad faith" by officer justifying exemplary damages on bond.
- The "bad faith" referred to in former Civil Code 1910, § 299 (see O.C.G.A. § 45-4-29) may be of a different character from that which under certain conditions will authorize a recovery under former Code 1933, §§ 56-706 and 56-1206 (see O.C.G.A. § 33-4-6). Copeland v. Dunehoo, 36 Ga. App. 817, 138 S.E. 267 (1927).
"Bad faith" under this section means frivolous and unfounded denial of liability.
- Refusal of an insurance company "in bad faith" to pay means a frivolous and unfounded denial of liability. Albergotti v. Equitable Life Assurance Soc'y of United States, 48 F. Supp. 290 (S.D. Ga. 1942); Pearl Assurance Co. v. Nichols, 73 Ga. App. 452, 37 S.E.2d 227 (1946); Life & Cas. Ins. Co. v. Freemon, 80 Ga. App. 443, 56 S.E.2d 303 (1949) (For comment, see 12 Ga. B.J. 337 (1950)); North British & Mercantile Ins. Co. v. Mercer, 90 Ga. App. 143, 82 S.E.2d 41, aff'd, 211 Ga. 161, 84 S.E.2d 570 (1954); Gulf Life Ins. Co. v. Moore, 90 Ga. App. 791, 84 S.E.2d 696 (1954); Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 127 S.E.2d 454 (1962); Georgia Cas. & Sur. Co. v. Seaboard Sur. Co., 210 F. Supp. 644 (N.D. Ga. 1962), aff'd, 327 F.2d 666 (5th Cir. 1964); Belch v. Gulf Life Ins. Co., 219 Ga. 823, 136 S.E.2d 351 (1964); Lanier v. American Cas. Co., 226 F. Supp. 630 (N.D. Ga. 1964); Dorsey v. State Mut. Life Assurance Co., 238 F. Supp. 391 (N.D. Ga. 1964), aff'd, 357 F.2d 600 (5th Cir. 1966); American Cas. Co. v. Ten Tex Corp., 357 F.2d 269 (5th Cir. 1966); United States Fid. & Guar. Co. v. Woodward, 118 Ga. App. 591, 164 S.E.2d 878 (1968); Pioneer Nat'l Title Ins. Co. v. American Cas. Co., 459 F.2d 963 (5th Cir. 1972); Bohannon v. Manhattan Life Ins. Co., 555 F.2d 1205 (5th Cir. 1977); Canal Ins. Co. v. Savannah Bank & Trust Co., 181 Ga. App. 520, 352 S.E.2d 835 (1987).
To authorize imposition of the penalty and attorney's fees, it must appear that the basis of the insurance company's position as to the amount of liability was frivolous and unfounded. Georgia Farm Bureau Mut. Ins. Co. v. Boney, 113 Ga. App. 459, 148 S.E.2d 457 (1966).
"Bad faith" in refusing to pay claim.
- "Bad faith" means a frivolous and unfounded refusal to pay a claim. Business Men's Assurance Co. of Am. v. Tilley, 109 Ga. App. 529, 136 S.E.2d 514 (1964); Fidelity Bankers Life Ins. Co. v. Renew, 121 Ga. App. 883, 176 S.E.2d 103 (1970); Public Sav. Life Ins. Co. v. Wilder, 123 Ga. App. 754, 182 S.E.2d 536 (1971); Dixie Constr. Prods. Inc. v. WMH, Inc., 179 Ga. App. 658, 347 S.E.2d 303 (1986).
Refusal to pay means a frivolous and unfounded failure to pay a valid claim. Phillips v. State Farm Mut. Auto. Ins. Co., 437 F.2d 365 (5th Cir. 1971).
"Bad faith" is shown by evidence that, under the terms of the policy upon which the demand is made and under the facts surrounding the response to that demand, the insurer had no "good cause" for resisting and delaying payment. Georgia Int'l Life Ins. Co. v. Harden, 158 Ga. App. 450, 280 S.E.2d 863 (1981).
Facts alleged by an administratrix in the complaint, alleging an improper denial of insurance death benefits, set forth a simple claim for a breach of contract; there was no suggestion that the parties had a special relationship; absent a special relationship between parties to a contract, Georgia law did not support a tort claim for negligent infliction of emotional distress and O.C.G.A. § 33-4-6 was the administratrix's exclusive remedy. Garrett v. Unum Life Ins. Co. of Am., 427 F. Supp. 2d 1158 (M.D. Ga. 2005).
There was evidence that an insurance company that denied a claim relating to a stolen bulldozer acted in bad faith; correspondence put the company on notice of the difficulty of construing its policy. Certain Underwriters at Lloyd's of London v. Rucker Constr., Inc., 285 Ga. App. 844, 648 S.E.2d 170 (2007).
In a case wherein mortgage lenders obtained title insurance policies from an insurer to guard against defects in title, where the policies required the insurer to pay or otherwise cure the title problem in the event of such defects, and such defects clearly existed, triggering the insurer's obligations under the policies, a judgment against the insurer was upheld on appeal as it was shown that the insurer failed to comply with its obligations until after it had named its policy holders as defendants in a protracted lawsuit; the trial court was authorized to find that the lawsuit was filed by the insurer to delay or avoid legitimate claims payment. Atl. Title Ins. Co. v. Aegis Funding Corp., 287 Ga. App. 392, 651 S.E.2d 507 (2007), cert. denied, No. S08C0137, 2008 Ga. LEXIS 107 (Ga. 2008).
Trial court did not err in granting summary judgment to an insured on the issue of liability for bad faith penalties and attorney fees under O.C.G.A. § 33-4-6 because a finding of bad faith as a matter of law was eminently justified when the insurer failed to set forth any defense to a determination of bad faith other than its meritless reliance on the business-risk clauses of the insured's comprehensive general liability policy; the insurer simply submitted no admissible evidence to defend itself on the insured's bad faith claims, and the insurer neglected even to protect itself by defending under a reservation of rights while filing a declaratory judgment action in order to determine the extent of coverage and its duty to defend. Transp. Ins. Co. v. Piedmont Constr. Group, LLC, 301 Ga. App. 17, 686 S.E.2d 824 (2009), cert. denied, No. S10C0507, 2010 Ga. LEXIS 312 (Ga. 2010).
No bad faith in insurer's reliance on contractual time limitation provision.
- Dismissal of the complaint based on the contractual time-limitation provision in the insurance policy was proper because there was no evidence that the insurer waived enforcement of that provision, or that there was a jury question as once mediation ended and the parties failed to reach a settlement, the insured had approximately seven months in which to file suit before the two-year limitation period expired, but the insured failed to do so. Premier Eye Care Assocs. v. Mag Mut. Ins. Co., 355 Ga. App. 620, 844 S.E.2d 282 (2020).
"Bad faith" in refusing to pay loss after demand.
- "Bad faith," within the meaning of this section, is any frivolous or unfounded refusal in law or in fact to pay a loss according to the insurance contract after legal demand. Cimarron Ins. Co. v. Pace, 212 Ga. 427, 93 S.E.2d 593 (1956); Millers Nat'l Ins. Co. v. Waters, 97 Ga. App. 103, 102 S.E.2d 193 (1958); Reserve Life Ins. Co. v. Ayers, 217 Ga. 206, 121 S.E.2d 649 (1961).
The term "bad faith," as used in this section, means any frivolous and unfounded refusal in law or in fact to comply with the demand of the policyholder to pay according to the terms of the policy. Royal Ins. Co. v. Cohen, 105 Ga. App. 746, 125 S.E.2d 709 (1962); Interstate Life & Accident Ins. Co. v. Williamson, 220 Ga. 323, 138 S.E.2d 668, answer conformed to, 110 Ga. App. 557, 139 S.E.2d 429 (1964); United States Fid. & Guar. Co. v. Biddy Lumber Co., 114 Ga. App. 358, 151 S.E.2d 466 (1966); Interstate Life & Accident Ins. Co. v. Brown, 146 Ga. App. 622, 247 S.E.2d 205 (1978); Smith v. New York Life Ins. Co., 579 F.2d 1267 (5th Cir. 1978); Progressive Cas. Ins. Co. v. Avery, 165 Ga. App. 703, 302 S.E.2d 605 (1983).
"Bad faith" means any frivolous or unfounded refusal in law or in fact to comply with the terms of the contract under the conditions imposed by statute. Life Ins. Co. v. Burke, 219 Ga. 214, 132 S.E.2d 737 (1963); Lincoln Life Ins. Co. v. Anderson, 109 Ga. App. 238, 136 S.E.2d 1 (1964).
When damages and attorney fees are sought under this section, the term "bad faith" means any frivolous or unfounded refusal in law or in fact to comply with the demand of the policyholder to pay according to the terms of the policy and the conditions imposed by statute. Witt v. Pennsylvania Nat'l Mut. Cas. Ins. Co., 117 Ga. App. 838, 162 S.E.2d 251 (1968).
Manufacturer's demand for payments pursuant to O.C.G.A. § 33-4-6 was valid because the manufacturer delivered a letter to the insurance company demanding reimbursement for payments the manufacturer had made on the warranty claims. The claims were denied because the claims had become too costly; as such, the insurance company's refusal to pay was not reasonable as a matter of law. Lloyd's Syndicate No. 5820 v. AGCO Corp., 319 Ga. App. 260, 734 S.E.2d 899 (2012).
Failure to completely investigate.
- Trial court did not err in denying an insurer's motion for a directed verdict on whether the insurer denied the insured's claim in bad faith in the face of evidence that the claim was not completely investigated. United Servs. Auto. Ass'n v. Carroll, 226 Ga. App. 144, 486 S.E.2d 613 (1997).
Only one penalty recoverable from one accident.
- When a trial court erroneously granted an insured statutory damages against an insurer, for bad faith, under O.C.G.A. § 33-4-6, for each of 26 medical bills arising from one automobile accident, this was a nonamendable defect which appeared on the face of the record, so the trial court could correct its judgment in the term of court after the term in which the judgment was entered by granting one statutory damages award for all claims arising from the accident. Byrd v. Regal Ins. Co., 275 Ga. App. 779, 621 S.E.2d 758 (2005).
"Bad faith" is not equivalent of fraud.
- The term "bad faith" in this section is not the equivalent of actual fraud, but means any frivolous or unfounded refusal in law or in fact to comply with the requisition of the policyholder to pay according to the terms of his contract and the conditions imposed by statute. Cotton States Life Ins. Co. v. Edwards, 74 Ga. 220 (1884); Missouri State Life Ins. Co. v. Lovelace, 1 Ga. App. 446, 58 S.E. 93 (1907); Bankers' Health & Life Ins. Co. v. Brown, 49 Ga. App. 294, 175 S.E. 387 (1934); Sentinel Fire Ins. Co. v. McRoberts, 50 Ga. App. 732, 179 S.E. 256 (1934); Life & Cas. Ins. Co. v. Smith, 51 Ga. App. 122, 179 S.E. 744 (1935); Mutual Life Ins. Co. v. Barron, 70 Ga. App. 454, 28 S.E.2d 334 (1943); Southeastern Constr. Co. ex rel. Beckham v. Glens Falls Indem. Co., 81 Ga. App. 770, 59 S.E.2d 751, rev'd on other grounds, 207 Ga. 488, 62 S.E.2d 149 (1950).
"Bad faith," within the meaning of this section, is not the equivalent of actual fraud, but is any frivolous or unfounded refusal in law or in fact to pay according to the insurance contract, after a demand. Metropolitan Life Ins. Co. v. Lovett, 50 Ga. App. 763, 179 S.E. 253 (1935); American Cas. Co. v. Callaway, 75 Ga. App. 799, 44 S.E.2d 400 (1947).
Agent's bad faith held bad faith of insurer.
- Where insurer refused payment of policy after loss occurred, relying on contentions which were admitted on the trial to be untrue and on further ground that its agent had never been paid for the policy, if in fact he was paid, his bad faith in making this denial became the bad faith of the company, for he was its agent with authority to act in the premises. Kansas City Life Ins. Co. v. Williams, 62 Ga. App. 707, 9 S.E.2d 680 (1940).
Insurer may have real issues of fact submitted to jury.
- The test for the payment of damages and attorney's fees, under this section, is whether the refusal is frivolous and unfounded, and the statute never intended to penalize insurance companies for desiring to have real issues of fact submitted to a jury. Life & Cas. Co. v. Jordan, 69 Ga. App. 287, 25 S.E.2d 103 (1943).
No waiver of contractual limitations period in policy.
- Grant of summary judgment to an insurance company in a insured's suit for nonpayment of claims on an insurance policy was upheld because the two-year limitation period in the insurance policy was valid and enforceable, and the insured did not contest the general enforceability of that provision. Premier Eye Care Assocs. v. Mag Mut. Ins. Co., 355 Ga. App. 620, 844 S.E.2d 282 (2020).
Penalties for bad faith are not authorized where there is a disputed question of fact. United States Fid. & Guar. Co. v. Woodward, 118 Ga. App. 591, 164 S.E.2d 878 (1968).
Gross discrepancies between facts appearing in the plaintiff's signed application and those which investigation discloses after a claim is made on a policy gives an insurance company good reason to take issue with the policy owner. Public Sav. Life Ins. Co. v. Wilder, 123 Ga. App. 754, 182 S.E.2d 536 (1971).
Whether deceased insured was drunk.
- As to double indemnity benefit, insurance company was within its rights in having a jury pass upon the question as to whether or not at the time the insured met his death he was under the influence of intoxicating liquors. Progressive Life Ins. Co. v. Smith, 71 Ga. App. 157, 30 S.E.2d 411 (1944).
Contesting payment where questions of law are intricate.
- Where the questions of law involved in a case are intricate and difficult of solution, the insurer has the right to contest payment of the claim and is not guilty of bad faith in refusing to pay it. United States Fid. & Guar. Co. v. Woodward, 118 Ga. App. 591, 164 S.E.2d 878 (1968).
Insured's refusal to pay based on material misrepresentations in the application did not constitute bad faith where, even though it waived its defense that the policy was void, the question of waiver was complicated, and was not evidence of bad faith. Florida Int'l Indem. Co. v. Osgood, 233 Ga. App. 111, 503 S.E.2d 371 (1998).
Close questions of liability adjudicated without penalty.
- There being no evidence of any frivolous or unfounded refusal by the defendant insurance company to pay the plaintiff and the question of liability being a close one under the law and facts, the defendant was reasonably entitled to have the matter adjudicated without being subject to the charge of bad faith, and the award of attorney's fees as a penalty under this section was therefore unauthorized. American Nat'l Ins. Co. v. Holbert, 50 Ga. App. 527, 179 S.E. 219 (1935); Bankers Health & Life Ins. Co. v. Hamilton, 56 Ga. App. 569, 193 S.E. 477 (1937).
Where the question of liability is close or the facts are in dispute, so that the insurer has reasonable grounds to contest the claim, no penalty should be permitted. Hartford Fire Ins. Co. v. Lewis, 112 Ga. App. 1, 143 S.E.2d 556 (1965).
The purpose of this section was not to penalize an insurer for appealing to the courts where there are questions concerning an insurance contract which are sufficiently doubtful to justify adjudication. Morris v. Mutual Benefit Life Ins. Co., 258 F. Supp. 186 (N.D. Ga. 1966).
When a bona fide dispute exists concerning liability, recovery of damages and attorney fees because of bad faith is not authorized. Norfolk & Dedham Mut. Fire Ins. Co. v. Cumbaa, 128 Ga. App. 196, 196 S.E.2d 167 (1973).
No "bad faith" exists where there is a doubtful question of law involved.
- The evidence did not show bad faith on the part of the company in refusing to pay the loss, where the legal questions involved were sufficiently doubtful and important to justify the insurer in litigating the matter. Continental Life Ins. Co. v. Wells, 38 Ga. App. 99, 142 S.E. 900 (1928).
No "bad faith" exists where there is a doubtful question of law involved. Brown v. Seaboard Lumber & Supply Co., 221 Ga. 35, 142 S.E.2d 842 (1965); United States Fid. & Guar. Co. v. Woodward, 118 Ga. App. 591, 164 S.E.2d 878 (1968); Federal Ins. Co. v. National Distrib. Co., 203 Ga. App. 763, 417 S.E.2d 671 (1992), cert. denied, 203 Ga. App. 906, 417 S.E.2d 671 (1992).
Trial court erred in denying summary judgment to the insurer on the insured's bad faith claim because the insurer had a reasonable factual and legal basis for denying coverage such that bad faith penalties were not allowed as the question of whether the previous reservations of rights were still effective had not been squarely answered, and it may have appeared from a review of the insurer's records that the reservation of rights letters had been sent out once the insurer agreed to cover the litigation. American Safety Indemnity Co. v. Sto Corp., 342 Ga. App. 263, 802 S.E.2d 448 (2017).
Insurer may contest liability on undecided legal question.
- The insurer has a right to contest liability depending on a legal question which has not heretofore been decided by the courts of this state. Reserve Life Ins. Co. v. Bearden, 96 Ga. App. 549, 101 S.E.2d 120 (1957), aff'd, 213 Ga. 904, 102 S.E.2d 494 (1958).
The questions of law as to the proper construction of the double indemnity provision of the policy of insurance not having been decided by the courts of Georgia, and having been decided contrary to the contentions of the plaintiff by other courts, the defendant insurance company was not subject to damages and attorney's fees on the ground of bad faith, since its defense was not frivolous or unfounded. Life Ins. Co. v. Burke, 219 Ga. 214, 132 S.E.2d 737 (1963).
An insurance company is not guilty of bad faith in seeking a judicial determination of an issue involving a question of law previously undecided in this state. Georgia Farm Bureau Mut. Ins. Co. v. Calhoun, 127 Ga. App. 213, 193 S.E.2d 35 (1972).
Where the issue raised in the case is one of first impression, and the Court of Appeals divided 6-3 on the issue, and the Supreme Court granted an application for a writ of certiorari to resolve the issue, the insurer was legally justified in litigating the issue and cannot, as a matter of law, be liable for the statutory penalty under this section. State Farm Mut. Auto. Ins. Co. v. Bass, 231 Ga. 269, 201 S.E.2d 444 (1973); Bass v. State Farm Mut. Auto. Ins. Co., 130 Ga. App. 393, 203 S.E.2d 379 (1973).
Work product documents discoverable for bad faith counterclaim.
- Even though documents in an insurer's claim file were prepared in anticipation of litigation under the work product doctrine of Fed. R. Civ. P. 26(b)(3), an additional insured showed substantial need because the documents were the only reliable indication of the insurer's bad faith for the insurer's counterclaim under O.C.G.A. § 33-4-6, except that the insurer was entitled to redact information showing mental impressions. Underwriters Ins. Co. v. Atlanta Gas Light Co., 248 F.R.D. 663 (N.D. Ga. 2008).
Insurer could dispute applicability of clause.
- Trial court properly entered summary judgment for the insurer in business's bad faith claim under O.C.G.A. § 33-4-6 since there was no evidence that the insurer acted in bad faith as there was a genuine dispute as to the applicability of the civil authority clause in a business insurance policy. Assurance Co. v. BBB Serv. Co., 259 Ga. App. 54, 576 S.E.2d 38 (2002).
Insurer may seek declaratory judgment.
- Where an action is instituted by an insurance company in federal court seeking a declaratory judgment as to its ultimate liability under a policy, the insurance company is not liable for attorney's fees and expenses incurred by the insured in such a proceeding in the absence of policy provisions to the contrary, or in the absence of fraud, bad faith, and stubborn litigiousness. Maryland Cas. Co. v. Sammons, 63 Ga. App. 323, 11 S.E.2d 89 (1940).
Actions initiated before expiration of 60 days from demand.
- Where the insurance company initiates a declaratory judgment action well before the expiration of 60 days from demand, the applicant has no action for attorney's fees for a bad faith refusal to pay under this section. Allstate Ins. Co. v. Anderson, 121 Ga. App. 582, 174 S.E.2d 591 (1970).
Declaratory judgment action must do more than ask determination of liability.
- An insurer will not be absolved of the bad faith penalty provided by this section merely by the fact that a declaratory judgment action is brought by it, where the action does no more than ask the court to determine whether the insurer is liable upon an insurance policy which it issued. State Farm Fire & Cas. Co. v. Gosdin, 147 Ga. App. 156, 248 S.E.2d 216 (1978).
Insurer's filing of a declaratory judgment action that disputed coverage under an insured's policy did not insulate the insurer from a counterclaim filed by the insured under O.C.G.A. § 33-4-6 for bad faith refusal to pay. Great Southwest Express Co. v. Great Am. Ins. Co., 292 Ga. App. 757, 665 S.E.2d 878, cert. denied, 293 Ga. App. 365, 667 S.E.2d 192 (2008).
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. Georgia Farm Bureau Mut. Ins. Co. v. Boney, 113 Ga. App. 459, 148 S.E.2d 457 (1966).
Delay in settlement does not justify penalty where insurer's offer is fair.
- Where the insurer disagrees 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 deems to be fair and reasonable as damages for the loss sustained and the insured declines 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 is not authorized. Georgia Farm Bureau Mut. Ins. Co. v. Boney, 113 Ga. App. 459, 148 S.E.2d 457 (1966).
Insurer need not proceed with appraisal if insured will not cooperate.
- 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. Georgia Farm Bureau Mut. Ins. Co. v. Boney, 113 Ga. App. 459, 148 S.E.2d 457 (1966).
Use of 17(c) formula for motor vehicle claim not bad faith.
- Trial court erred when the court denied the defense insurer's motion for partial summary judgment as to the plaintiffs' bad faith claim under O.C.G.A. § 33-4-7 because the insurer's proposed adjustment of the plaintiffs' diminished value claim was reasonable and provided the insurer with good cause as a matter of law for the insurer's refusal to pay the amount demanded by the plaintiffs since it was undisputed that the insurer's adjuster used the 17(c) formula as part of the subjective determination of the lost value of the car at issue. Amica Mut. Ins. Co. v. Sanders, 335 Ga. App. 245, 779 S.E.2d 459 (2015).
Bad faith will be implied from any frivolous and unfounded refusal to pay the benefits of an insurance policy within 60 days after demand. Independent Life & Accident Ins. Co. v. Thornton, 102 Ga. App. 285, 115 S.E.2d 835 (1960).
Defenses not showing reasonable and probable cause.
- Any defense not manifesting reasonable and probable cause would expose the company to the imputation of bad faith and to the assessment of damages therefor. Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 12 S.E. 18 (1890); New York Life Ins. Co. v. Ittner, 59 Ga. App. 89, 200 S.E. 522 (1938), later appeal, 62 Ga. App. 31, 8 S.E.2d 582 (1940); Reserve Life Ins. Co. v. Peavy, 98 Ga. App. 268, 105 S.E.2d 465 (1958); Interstate Life & Accident Ins. Co. v. Williamson, 110 Ga. App. 557, 139 S.E.2d 429 (1964); Colonial Life & Accident Ins. Co. v. McClain, 144 Ga. App. 201, 240 S.E.2d 759 (1977); Colonial Life & Accident Ins. Co. v. McClain, 243 Ga. 263, 253 S.E.2d 745 (1979); Cincinnati Ins. Co. v. Kastner, 233 Ga. App. 594, 504 S.E.2d 496 (1998).
Probable cause negatives imputation of bad faith.
- Probable cause for refusing payment will negative the imputation of bad faith, but without such probable cause, refusal will be at the company's peril. Life & Cas. Ins. Co. v. Smith, 51 Ga. App. 122, 179 S.E. 744 (1935); Reserve Life Ins. Co. v. Peavy, 98 Ga. App. 268, 105 S.E.2d 465 (1958); Interstate Life & Accident Ins. Co. v. Hopgood, 133 Ga. App. 6, 209 S.E.2d 703 (1974).
If there is any reasonable ground for contesting the claim, there is no bad faith. Albergotti v. Equitable Life Assurance Soc'y of United States, 48 F. Supp. 290 (S.D. Ga. 1942); Pearl Assurance Co. v. Nichols, 73 Ga. App. 452, 37 S.E. 227 (1946); Life & Cas. Ins. Co. v. Freemon, 80 Ga. App. 443, 56 S.E.2d 303 (1949), (for comment, see 12 Ga. B.J. 337 (1950)); Gulf Life Ins. Co. v. Moore, 90 Ga. App. 791, 84 S.E.2d 696 (1954); Georgia Cas. & Sur. Co. v. Seaboard Sur. Co., 210 F. Supp. 644 (N.D. Ga. 1962), aff'd, 327 F.2d 666 (5th Cir. 1964); Belch v. Gulf Life Ins. Co., 219 Ga. 823, 136 S.E.2d 351 (1964); Lanier v. American Cas. Co., 226 F. Supp. 630 (N.D. Ga. 1964); Dorsey v. State Mut. Life Assurance Co., 238 F. Supp. 391 (N.D. Ga. 1964), aff'd, 357 F.2d 600 (5th Cir. 1966); American Cas. Co. v. Ten Tex Corp., 357 F.2d 269 (5th Cir. 1966); Morris v. Mutual Benefit Life Ins. Co., 258 F. Supp. 186 (N.D. Ga. 1966); Witt v. Pennsylvania Nat'l Mut. Cas. Ins. Co., 117 Ga. App. 838, 162 S.E.2d 251 (1968); United States Fid. & Guar. Co. v. Woodward, 118 Ga. App. 591, 164 S.E.2d 878 (1968); Home Indem. Co. v. Godley, 122 Ga. App. 356, 177 S.E.2d 105 (1970); Boston-Old Colony Ins. Co. v. Warr, 127 Ga. App. 364, 193 S.E.2d 624 (1972); Pioneer Nat'l Title Ins. Co. v. American Cas. Co., 459 F.2d 963 (5th Cir. 1972); Progressive Cas. Ins. Co. v. West, 135 Ga. App. 1, 217 S.E.2d 310 (1975); Bohannon v. Manhattan Life Ins. Co., 555 F.2d 1205 (5th Cir. 1977); Wright v. Hartford Accident & Indem. Co., 442 F. Supp. 155 (N.D. Ga. 1977); Smith v. New York Life Ins. Co., 579 F.2d 1267 (5th Cir. 1978); Grange Mut. Cas. Co. v. Law, 223 Ga. App. 748, 479 S.E.2d 357 (1996).
In an insurance coverage dispute, there was not sufficient grounds upon which a jury could find that the insurer acted in bad faith by failing to pay a claim because the insurer was not unreasonable in relying on its adjuster's findings, following inspection, that rainwater had entered the building through openings caused by unsecured roofing work. Mock v. Cent. Mut. Ins. Co., 158 F. Supp. 3d 1332 (S.D. Ga. Jan. 25, 2016).
Disputed questions of fact.
- To support a cause of action under O.C.G.A. § 33-4-6, the insured bears the burden of proving that the refusal to pay the claim was made in bad faith. A defense going far enough to show reasonable and probable cause for making it would vindicate the good faith of the company as effectually as would a complete defense to the action. Penalties for bad faith are not authorized where the insurance company has any reasonable ground to contest the claim and where there is a disputed question of fact. Moon v. Mercury Ins. Co. of Ga., 253 Ga. App. 506, 559 S.E.2d 532 (2002).
As to the insured's claim for bad faith breach of an insurance contract under O.C.G.A. § 33-4-6, summary judgment was warranted in favor of defendants. The insurer utilized independent medical examiners (IMEs), the insurer's IMEs provided the medical bases for their conclusions; the insurer tested its IMEs' conclusions with the insured's information; and further, under Georgia law, the absence of bad faith was buttressed by the existence of a genuine issue of material fact whether defendants owed the insured coverage. Worsham v. Provident Cos., 249 F. Supp. 2d 1325 (N.D. Ga. 2003).
Trial court properly granted the title insurance company's motion for summary judgment as to the insured's allegation of bad faith refusal to pay under O.C.G.A. § 33-4-6 because genuine issues of material fact existed as to whether the bank was aware of Exhibit C addressing the environmental problems with the property prior to closing and, thus, whether the insured's claim was excluded under the insurance policy as an assumed title defect. Old Republic Nat'l Title Ins. Co. v. RM Kids, LLC, 337 Ga. App. 638, 788 S.E.2d 542 (2016), cert. denied, No. S16C1843, 2017 Ga. LEXIS 117 (Ga. 2017).
Defense showing reasonable and probable cause vindicates insurer's good faith.
- A defense going far enough to show reasonable and probable cause for making it would vindicate the good faith of the company as effectually as would a complete defense to an action under this section. Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 12 S.E. 18 (1890); New York Life Ins. Co. v. Ittner, 59 Ga. App. 89, 200 S.E. 522 (1938), later appeal, 62 Ga. App. 31, 8 S.E.2d 582 (1940); Reserve Life Ins. Co. v. Peavy, 98 Ga. App. 268, 105 S.E.2d 465 (1958); Interstate Life & Accident Ins. Co. v. Williamson, 110 Ga. App. 557, 139 S.E.2d 429 (1964); Whitlock v. Interstate Life & Accident Ins. Co., 112 Ga. App. 235, 144 S.E.2d 541 (1965); Georgia Farm Bureau Mut. Ins. Co. v. Calhoun, 127 Ga. App. 213, 193 S.E.2d 35 (1972); Colonial Life & Accident Ins. Co. v. McClain, 144 Ga. App. 201, 240 S.E.2d 759 (1977); Colonial Life & Accident Ins. Co. v. McClain, 243 Ga. 263, 253 S.E.2d 745 (1979).
Refusal to pay medical benefits not unreasonable.
- Insurer's refusal to pay medical benefits on the basis of an opinion by an independent medical provider that there was no causal connection between the treatment and the accident was not unreasonable. Jones v. State Farm Mut. Auto. Ins. Co., 228 Ga. App. 347, 491 S.E.2d 830 (1997); Shaffer v. State Farm Mut. Auto. Ins. Co., 246 Ga. App. 244, 540 S.E.2d 227 (2000).
Insurer's cancellation of insured's medical benefits on the basis of report from an independent medical examiner was not unreasonable where the insured failed to prove that the examiner's opinion was patently wrong. Lancaster v. USAA Cas. Ins. Co., 232 Ga. App. 805, 502 S.E.2d 752 (1998).
Suspension of payments of lost wage benefits not unreasonable.
- Summary judgment on the question of plaintiff's claim for bad faith damages under subsection (a) of O.C.G.A. § 33-4-6 was proper where it was undisputed that the insurer suspended payment of plaintiff's lost wage benefits relying upon the opinion of a board certified orthopedic surgeon. Wallace v. State Farm Fire & Cas. Co., 247 Ga. App. 95, 539 S.E.2d 509 (2000).
Good faith shown by reasonable and probable cause is complete defense.
- Should the insurance company show a reasonable and probable cause for refusing to pay, the company's good faith would be a complete defense to an action under this section. Independent Life & Accident Ins. Co. v. Thornton, 102 Ga. App. 285, 115 S.E.2d 835 (1960).
Breach of duty to defend.
- Insurer breached the insurer's duty to defend under O.C.G.A. § 33-4-6(a) against a nightclub guest's personal injury complaint; the guest's claims at least arguably would have been covered by a provision in the nightclub's insurance policy that provided coverage for an assault or battery by an employee that was committed to protect persons or property. Landmark Am. Ins. Co. v. Khan, 307 Ga. App. 609, 705 S.E.2d 707 (2011).
Even though defense is not accepted.
- The insurer's defense must be evaluated, because if there was reasonable and probable cause to make it, an award for damages and attorney fees for bad faith is not authorized. Not every defense bars a finding of bad faith. It is a defense which raises a reasonable question of law or a reasonable issue of fact even though not accepted by the trial court or jury. Colonial Life & Accident Ins. Co. v. McClain, 243 Ga. 263, 253 S.E.2d 745 (1979).
If defense is rejected, jury may find it was not made in good faith.
- Where insurance company gave as a reason for refusal to pay claim on a life insurance policy a contention that the first premium had never been paid or the policy delivered to the insured and the jury found against such contention, it was within their power to find from the evidence that such contention was not in good faith. Kansas City Life Ins. Co. v. Williams, 62 Ga. App. 707, 9 S.E.2d 680 (1940).
Refusal to pay justified at time of refusal shows no bad faith.
- Where it appears from the evidence that the insurer's refusal to pay was justified on the basis of the facts appearing in the insurer at the time of the refusal, bad faith is now shown. Lincoln Life Ins. Co. v. Anderson, 109 Ga. App. 238, 136 S.E.2d 1 (1964); National-Ben Franklin Ins. Co. v. Prather, 109 Ga. App. 459, 136 S.E.2d 499 (1964); Old Colony Ins. Co. v. Dressel, 109 Ga. App. 465, 136 S.E.2d 525, aff'd, 220 Ga. 354, 138 S.E.2d 886 (1964).
Given an insurer's initial and prolonged payment of disability benefits to the insured during its investigation of the insured's claim, and its eventual termination of benefits only after the insured failed to respond to inquiries requesting an explanation of how the insured's disability prevented the insured from engaging in the insured's purported occupations, the decision to terminate the benefits could not be characterized as either frivolous or unreasonable. Giddens v. Equitable Life Assur. Soc'y of the United States, 356 F. Supp. 2d 1313 (N.D. Ga. 2004), aff'd in part and rev'd in part, 445 F.3d 1286, 2006 U.S. App. LEXIS 8970 (11th Cir. Ga. 2006).
Insurer's filing of a 28 U.S.C. § 1335 interpleader suit was done in good faith as was the insurer's denial of a trustee's claim for payment of a decedent's life insurance policies as the insurer was unable to determine, due to a myriad of events that occurred between the decedent's establishment of a revocable trust, whether the trust, the decedent's children with his first wife, or the decedent's second wife and any children they may have had together were entitled to the decedent's life insurance policy proceeds, and the parties were scattered through several different countries, making it more difficult for the insurer to determine who was entitled to the proceeds; that the children later averred that the proceeds belonged to the trust and the second wife disclaimed any interest in the proceeds did not mean that the insurer acted in bad faith under O.C.G.A. § 33-4-6 in denying payment of the trustee's claim. Nat'l Life Ins. Co. v. Alembik-Eisner, 582 F. Supp. 2d 1362 (N.D. Ga. 2008).
The test of bad faith within the meaning of this section is as of the time of trial, and not at the time of refusal to pay upon demand. Interstate Life & Accident Ins. Co. v. Williamson, 110 Ga. App. 557, 139 S.E.2d 429 (1964).
Whatever the facts are at the time of a refusal to pay, if at the trial there is a reasonable ground for the insurer to contest the claim, there can be no finding against the insurance company for bad faith and attorney's fees regardless of the outcome of the case. Interstate Life & Accident Ins. Co. v. Williamson, 110 Ga. App. 557, 139 S.E.2d 429 (1964).
The question of bad faith must be determined by the defense made at the time of trial. Phillips v. State Farm Mut. Auto. Ins. Co., 437 F.2d 365 (5th Cir. 1971).
Discovery of defense showing probable cause after refusal vindicates insurer.
- Where, at the expiration of 60 days after a demand by an insured for the amount claimed to be due under an insurance policy, the insurance company knows of no good reason for refusing to pay the claim, a defense later discovered and made, on the trial of the case, going far enough to show probable cause of making such defense vindicates the insurer's refusal to pay the claim so as to preclude the insured from recovering attorney's fees and penalty provided in this section. Interstate Life & Accident Ins. Co. v. Williamson, 220 Ga. 323, 138 S.E.2d 668, answer conformed to, 110 Ga. App. 557, 139 S.E.2d 429 (1964).
Insurer need not pay claim prior to judgment being entered against uninsured motorist. Allstate Ins. Co. v. McCall, 166 Ga. App. 833, 305 S.E.2d 413 (1983), aff'd, 251 Ga. 869, 310 S.E.2d 513 (1984).
Insurer need not pay beyond limits of uninsured motorist policy.
- The insurer is not guilty of bad faith in failing to pay the insured the full amount of the verdict, which is beyond the limits of an uninsured motorist policy of which she is the beneficiary, where the insurer tenders the limit of the policy to the insured after judgment is entered in the case. Allstate Ins. Co. v. McCall, 166 Ga. App. 833, 305 S.E.2d 413 (1983), aff'd, 251 Ga. 869, 310 S.E.2d 513 (1984).
A defense which would bar a finding of bad faith is one which raises a reasonable question of law or a reasonable issue of fact. Giles v. National Union Fire Ins. Co., 578 F. Supp. 376 (M.D. Ga. 1984).
After an insurer paid a borrower for mortgaged equipment destroyed in a fire, without knowing that the insurer should have paid the predecessor bank, which was later closed by the FDIC, the record did not show evidence of unfounded reasons for nonpayment, so the bad faith claim failed. Ameris Bank v. Lexington Ins. Co., F. Supp. 2d (S.D. Ga. Sept. 25, 2015).
Defense reasonable where insurer not aware of change in medical opinion as to preexisting condition.
- Where insured's coverage was expressly limited to loss resulting directly, independently, and exclusively from accidental injury, where insurer made disability payments until being informed by insured's own physician that insured's accident had aggravated a preexisting condition, and where there was no indication that insurer knew that insured's doctor had changed his opinion prior to the litigation, insurer's defense was reasonable and an award of attorney fees was in error. Colonial Life & Accident Ins. Co. v. Donaldson, 172 Ga. App. 211, 322 S.E.2d 510 (1984).
Where the court determines that the coverage is void ab initio under § 33-24-6(a) and there is no evidence of bad faith on behalf of the insurance company, a beneficiary is not entitled to recover under this section. Connecticut Gen. Life Ins. Co. v. Wood, 631 F. Supp. 9 (N.D. Ga. 1984), questions certified to Georgia Supreme Court and proceedings stayed upon appeal, 758 F.2d 1459 (11th Cir. 1985); Wood v. New York Life Ins. Co., 631 F. Supp. 3 (N.D. Ga. 1984).
Former rule.
- Prior to 1964, it was held that the bad faith on the part of an insurance company necessary to support a claim for attorney fees had to occur at the time the company failed to pay the benefit provided for in a policy of full force and effect at the expiration of the 60-day period after proof of loss and demand for payment had been made, rather than at the time of the trial. Independent Life & Accident Ins. Co. v. Hopkins, 80 Ga. App. 348, 56 S.E.2d 177 (1949); North British & Mercantile Ins. Co. v. Mercer, 90 Ga. App. 143, 82 S.E.2d 41, aff'd, 211 Ga. 161, 84 S.E.2d 570 (1954); Life & Cas. Ins. Co. v. Brown, 95 Ga. App. 354, 98 S.E.2d 68, rev'd on other grounds, 213 Ga. 390, 99 S.E.2d 98 (1957); Reserve Life Ins. Co. v. Bearden, 96 Ga. App. 549, 101 S.E.2d 120 (1957), aff'd, 213 Ga. 904, 102 S.E.2d 494 (1958); Reserve Life Ins. Co. v. Ayers, 101 Ga. App. 887, 115 S.E.2d 477 (1960).
The question of bad faith was to be judged upon the facts that they appeared prior to the time of the trial as they bore upon the insurer's reason, or absence of reason, for refusing to pay the claim upon demand. Calvert Fire Ins. Co. v. Mack, 88 Ga. App. 617, 76 S.E.2d 829 (1953).
Liability for the penalty and attorney's fees attached at the time when the insurer in bad faith and within 60 days after demand for payment of the loss failed or refused to pay the fees; this was true regardless of whether at a later date there was reasonable cause to refuse the claim of loss. Reserve Life Ins. Co. v. Peavy, 98 Ga. App. 268, 105 S.E.2d 465 (1958).
Whether there was any reasonable grounds for contesting the claim was a matter which depended upon the circumstances existing when liability was declined or not admitted, not by the event of the ultimate determination. Georgia Cas. & Sur. Co. v. Seaboard Sur. Co., 210 F. Supp. 644 (N.D. Ga. 1962), aff'd, 327 F.2d 666 (5th Cir. 1964); Dorsey v. State Mut. Life Assurance Co., 238 F. Supp. 391 (N.D. Ga. 1964), aff'd, 357 F.2d 600 (5th Cir. 1966).
Case of first impression.
- Where case was one of first impression in which fireman's fund presented a legal defense adopted by other courts, the trial court erred in failing to grant fireman's fund's motion for directed verdict on the issue of bad faith and attorney fees. Fireman's Fund Ins. Co. v. Dean, 212 Ga. App. 262, 441 S.E.2d 436 (1994).
No bad faith in refusal to pay on fire insurance policy.
- In a dispute in a fire insurance case in which the insurer failed to pay for over seven months and denied coverage because the home was not the insured's primary residence, although an appellate court concluded that coverage was provided, the trial court did not err in granting summary judgment for the insurer on the issue of bad faith. Lee v. Mercury Ins. Co., 343 Ga. App. 729, 808 S.E.2d 116 (2017), cert. denied, No. S18C0518, 2018 Ga. LEXIS 491 (Ga. 2018).
Insurance coverage demanded, but not provided.
- The exclusive remedy for an insurance company's bad faith refusal to pay a claim was set forth in O.C.G.A. § 33-4-6 and penalties against the insurance company and agents were not available for their alleged bad faith as the fire insurance policy they issued to the insured did not provide the insurance coverage demanded. Anderson v. Ga. Farm Bureau Mut. Ins., 255 Ga. App. 734, 566 S.E.2d 342 (2002).
Closing protection letter not an insurance policy.
- A trial court properly ruled that a mortgage lender was not entitled to statutory penalties authorized by O.C.G.A. § 33-4-6 in a suit asserting the bad faith denial on the part of a title insurance company in paying for a fraud claim as the closing protection letter relevant was not a policy of insurance so as to authorize imposition of the penalties. Lawyers Title Ins. Corp. v. New Freedom Mortg. Corp., 288 Ga. App. 642, 655 S.E.2d 269 (2007), cert. denied, 2008 Ga. LEXIS 384 (Ga. 2008).
Insured party excluded from coverage by terms of policy.
- Because the driver was excluded from coverage under the insurance policy, the driver could not maintain an action for bad faith penalties and attorney fees under O.C.G.A. § 33-4-6. Progressive Ins. Co. v. Horde, 259 Ga. App. 769, 577 S.E.2d 835 (2003).
District court did not err when the court found that an insurance company was entitled to summary judgment on an insured's claims that the company committed breach of contract and was liable for bad faith penalties under O.C.G.A. § 33-4-6 because the court denied the insured's claim seeking compensation for damages that occurred to the insured's home and personal property when water, mud, and debris entered the home during a rainstorm; damages the insured sustained were caused by "surface water," as that term was defined under Georgia law, and a provision in the insured's homeowner's policy excluded coverage for damage to the insured's home and personal property that was caused by surface water. Williams v. State Farm Fire & Cas. Ins. Co., F.3d (11th Cir. July 17, 2014)(Unpublished).
Insured precluded damage recovery by failure to provide records to insurer.
- Where insured breached insurance contract by failing to fulfill conditions precedent to commencement of suit by failing to provide insurer with any records, insured was precluded from recovery and insurer had reasonable grounds to refuse payment of the claim; accordingly, damages under O.C.G.A. § 33-4-6 were not warranted. Hall v. Liberty Mut. Fire Ins. Co., F. Supp. 2d (S.D. Ga. Mar. 21, 2008), aff'd, No. 08-12051, 2009 U.S. App. LEXIS 2075 (11th Cir. Ga. 2009).
Summary judgment for insurer proper on bad faith claim.
- Although a worker making a claim under a disability policy was able to perform light duties, whether the worker was wholly disabled from performing "material" duties within 180 days of the injury, as required by the policy, was a jury question, and summary judgment on this issue was improper; however, the worker was not entitled to bad faith penalties under O.C.G.A. § 33-4-6 because, in light of the policy language and the underlying facts, the insurer had reasonable grounds to contest coverage for total disability. Fountain v. Unum Life Ins. Co. of Am., 297 Ga. App. 458, 677 S.E.2d 334 (2009).
Because the master policy of insurance liability did not provide indemnification for the extended protection plan (EPP) claims for which the manufacturer was "legally liable," only claims for which it had been "held legally liable," the manufacturer's claim for indemnification did not, and would not, accrue until its legal liability for the EPP claims had been established by a court holding, and the insurer was entitled to summary judgment on the bad faith denial of insurance coverage claim. Lloyd's Syndicate No. 5820 v. AGCO Corp., 294 Ga. 805, 756 S.E.2d 520 (2014).
Insurer had reasonable grounds to contest homeowners' claims.
- Insureds' bad faith claim under O.C.G.A. § 33-4-6 against an insurer that alleged the insurer acted in bad faith in underpaying for tree damage and in refusing to pay for water damage failed under summary judgment because the insurer had reasonable grounds to contest the claims; the insureds' request for additional payment for the tree damage was based on estimates for repairs that exceeded the scope of the tree damages, and there was no indication that the insureds properly asserted a new claim for the water damage. Matthews v. State Farm Fire & Cas. Co., 500 Fed. Appx. 836 (11th Cir. 2012)(Unpublished).
Bad faith not found.- Because of an "impaired property" exclusion in a commercial general liability policy, an insurer did not breach its duty to indemnify or defend where an auto parts store filed a claim with the insurer after customers sued the store for its failure to deliver conforming goods (store allegedly filled its customers' orders for freon with a freon substitute and illegally imported freon); the court granted summary judgment in favor of the insurer on the issues of bad faith and failure to defend and indemnify. JLM Enters. v. Houston Gen. Ins. Co., 196 F. Supp. 2d 1299 (S.D. Ga. 2002).
Insured who tried to recover damages for injuries the insured sustained in a motor vehicle accident in Florida, but who alleged that the insured's claim was denied because she did not have the right to sue under Florida's no-fault statute, was entitled to collect uninsured motorist benefits from the insured's own insurance company, pursuant to O.C.G.A. § 33-7-11. However, the trial court, which heard the insured's action against the insurance company, erred when it denied the company's motion for summary judgment on the insured's claim seeking penalties and attorney fees, pursuant to O.C.G.A. § 33-4-6, because the case presented a unique issue of law and there was no evidence that the company acted in bad faith when it denied the insured's claim. Ga. Farm Bureau Mut. Ins. Co. v. Williams, 266 Ga. App. 540, 597 S.E.2d 430 (2004).
Award in favor of an insured was reversed as the insurer refused to pay the insured's claim based on an investigation which produced evidence that the insured's claim under the policy was fraudulent. As the insured denied the fraud claim, there was a genuine conflict over whether the claim was legitimate, and since the insurer's grounds for refusing to pay the claim were reasonable and not frivolous or unfounded, there was a lack of evidence to support the jury's verdict finding that the insurer refused to pay the claim in bad faith. Allstate Ins. Co. v. Smith, 266 Ga. App. 411, 597 S.E.2d 500 (2004).
Trial court properly granted summary judgment as to the successor in interest to an insurance company as to claims of bad faith pursuant to O.C.G.A. § 33-4-6, as the insurer reasonably based its denial of coverage on a decedent's failure to make the required premium payments. Guideone Life Ins. Co. v. Ward, 275 Ga. App. 1, 619 S.E.2d 723 (2005).
Where an insurer was found to have improperly rescinded a directors and officers insurance policy with its insured, the insured was not liable for bad faith damages because the insurer's decision to rescind the policy was reasonable; the insurer promptly initiated and conducted an investigation of the circumstances surrounding the issuance of the policy, which reasonably led it to conclude that the policy had been procured on the basis of material misrepresentations. Exec. Risk Indem. v. AFC Enters., 510 F. Supp. 2d 1308 (N.D. Ga. 2007), aff'd, 279 Fed. Appx. 793 (11th Cir. 2008).
Insurer was not liable for attorney fees based on bad faith failure to pay a corporate insured's claim for inspections and repairs to faulty industrial boilers because the business risk exclusions contained in the insured's general commercial liability policy exempted such matters from recovery. Gentry Mach. Works, Inc. v. Harleysville Mut. Ins. Co., 621 F. Supp. 2d 1288 (M.D. Ga. 2008).
Insured settled a claim without its insurer's consent, contrary to a provision in the parties' policy. As the insurer was liable under the policy to pay only those sums the insured was legally obligated to pay, and neither policy provision was illegal or contrary to public policy, the insured could not sue the insurer for bad faith failure to settle, O.C.G.A. § 33-4-6, in the absence of an excess verdict or an agreed-upon settlement. Trinity Outdoor, LLC v. Cent. Mut. Ins. Co., 285 Ga. 583, 679 S.E.2d 10 (2009).
Insurance company presented evidence showing that the reason for the payment delay was because there was a dispute over how much was owed under the lost business income provision of the policy. From that evidence, the court granted the insurance company's motion for summary judgment on the insured's claim for bad faith under O.C.G.A. § 33-4-6. B.S.S.B., Inc. v. Owners Ins. Co., F. Supp. 2d (M.D. Ga. Jan. 20, 2010).
Trial court erred by denying an insurer's motion for summary judgment dismissing a mortgagee's claims for bad faith damages under O.C.G.A. § 33-4-6 in its action seeking payment of insurance proceeds because the insurer had good reason for delaying payment until the insurer acquired the necessary information about the foreclosure of the insured residence less than 60 days before suit was filed; the mortgagee ultimately showed that after foreclosing on and obtaining title to the residence, the mortgagee incurred a net loss that gave the mortgagee a right to the entire $103,000 of insurance proceeds, but the information necessary for the insurer to conclude that the mortgagee had a right to claim the entire $103,000 of insurance proceeds was provided to the insurer less than 60 days before suit was filed, and the mortgagee made no demand for payment of all the insurance proceeds after that information was provided. Balboa Life & Cas., LLC v. Home Builders Fin., 304 Ga. App. 478, 697 S.E.2d 240 (2010).
Homeowner could not prevail on a bad-faith claim based on an insurer's denial of coverage for water damage to a house, as the insurer reasonably denied the claim; the policy unambiguously contained a residency requirement, and the homeowner never resided there. Mahens v. Allstate Ins. Co., 447 Fed. Appx. 51 (11th Cir. 2011)(Unpublished).
Trial court did not err in granting an insurer summary judgment on a widow's claim for bad faith penalties and attorney fees under O.C.G.A. § 33-4-6 because the insurer's reasons for refusing to pay the insurance proceeds to the widow were erroneous but not frivolous or unreasonable. Flynt v. Life of the South Ins. Co., 312 Ga. App. 430, 718 S.E.2d 343 (2011), cert. denied, No. S12C0461, 2012 Ga. LEXIS 305 (Ga. 2012).
In an insurance dispute coverage claim, the homeowners' contention on appeal that the insurance company denied the homeowners' claim in bad faith, in violation of O.C.G.A. § 33-4-6, was not ruled on by the trial court; thus, the appellate court was presented with nothing to review on appeal, but stated that the homeowners failed to state the particular statutory or contractual provision the homeowners contended the insurance company intentionally omitted from the homeowner's policy. Bell v. Liberty Mut. Fire Ins. Co., 319 Ga. App. 302, 734 S.E.2d 894 (2012).
Trial court erred by denying a title company's motion for summary judgment on a lender's claim for coverage under the title insurance policy and for bad faith damages because the policy stated that the title company was liable for the lesser amount of the difference between the value of the insured estate and the value of the insured estate subject to the defect insured against, thus, since the lender received more in the foreclosure sale than the value, the title company was liable for zero. Doss & Assocs. v. First Am. Title Ins. Co., 325 Ga. App. 448, 754 S.E.2d 85 (2013).
Procedure
1. Generally
No damages absent allegations of fraud, special circumstances.- The plaintiff's request for both the 25 percent penalty and unspecified punitive damages was at least redundant, where he alleged only his entitlement to the disputed proceeds and the defendant's bad faith failure to pay them, no allegations of fraud or other special circumstances having been pleaded. Hall v. Travelers Ins. Co., 691 F. Supp. 1406 (N.D. Ga. 1988).
Allegation of "bad faith" sufficient, not mere conclusion.
- In an action on an insurance contract, if definite facts are well pleaded which in law make a case of liability against the insurer and disclose a duty to pay the damage and if it is further alleged that on timely demand by the insured the insurer within 60 days thereafter refused to compensate for the loss sustained, the pleader may allege that the refusal was in "bad faith," and that the defendant is therefore subject to a penalty provided by law, without subjecting this allegation to the complaint that it is a mere conclusion of the pleader. Rogers v. American Nat'l Ins. Co., 145 Ga. 570, 89 S.E. 700 (1916); North British & Mercantile Ins. Co. v. Parnell, 53 Ga. App. 178, 185 S.E. 122 (1936); Glens Falls Indem. Co. v. Gottlieb, 76 Ga. App. 70, 44 S.E.2d 706 (1947).
It is proper to allege liability for penalty as legal result.
- The allegation following that of "bad faith," that "making the defendant liable for said penalty of 25 percent as (sic) attorney's fees," is an allegation of legal result which will be judicially recognized by the Court of Appeals as arising from the allegation of refusal in "bad faith," and, as such, is not objectionable. North British & Mercantile Ins. Co. v. Parnell, 53 Ga. App. 178, 185 S.E. 122 (1936).
Reason for refusal in "bad faith" need not be alleged.
- Whether there is any reason given, or whether there are other insinuating facts in connection with the refusal of the insurer to compensate for loss sustained, is purely a matter of evidence tending to support the ultimate issue of fact as to "bad faith" and need not be pleaded. North British & Mercantile Ins. Co. v. Parnell, 53 Ga. App. 178, 185 S.E. 122 (1936).
The pleadings made a case for submission to a jury as to whether the defendant was liable for the damages and attorney's fees provided for under this section by its refusal to defend suit brought against plaintiff railroad in accordance with its contractual obligations. Liberty Mut. Ins. Co. v. Atlantic C.L.R.R., 66 Ga. App. 826, 19 S.E.2d 377 (1942).
Allegations held sufficient to authorize finding of no good faith.
- Where from the allegations and admissions in the pleadings, which it was the duty of the jury to accept as true, the jury was authorized to find that at the time of the refusal to pay the claim after the expiration of the 60-day period, as well as at the time the suit was filed and the answer filed thereto, no investigation had been made by the defendant insurer to determine whether payment should have been made, the jury was authorized to find the defendant lacking in the exercise of good faith. Independent Life & Accident Ins. Co. v. Hopkins, 80 Ga. App. 348, 56 S.E.2d 177 (1949).
Demand at time payment due and refusal continuing 60 days must be alleged.
- In order for the insured to recover under this section the demand ought to be averred as taking place at a time when the plaintiff had a right to exact present payment, and the plaintiff's pleading should show that refusal, in "bad faith," was made and persisted in for 60 days. Twin City Fire Ins. Co. v. Wright, 46 Ga. App. 537, 167 S.E. 891 (1933).
Violation of 60-day waiting period.
- Where insurer sued to cancel contract within 60-day period following demand, the insured's compulsory counterclaim did not violate the 60-day waiting period so as to foreclose claim for damages and attorneys fees. Sawyer v. Citizens & S. Nat'l Bank, 164 Ga. App. 177, 296 S.E.2d 134 (1982).
Waiver of 60-day notice requirement.
- Insurer waived the 60-day coverage demand requirement under this section in an action by the insured to recover judgments and the costs of defending a wrongful death action, where the insurer filed a declaratory judgment action to determine its duty to defend under the policy prior to the initiation of the suit by the insured. Leader Nat'l Ins. Co. v. Kemp & Son, 189 Ga. App. 115, 375 S.E.2d 231 (1988), aff'd, 259 Ga. 329, 380 S.E.2d 458 (1989).
Insurer's waiver of defenses.
- Where the insurer sent notice of termination and nonrenewal after it learned of the insured's fraud, it waived its defense that the insured's misrepresentations in his application voided the policy ab initio; however, such waiver with regard to the insurer's liability under the policy did not waive its defense to a bad faith claim under this section. Florida Int'l Indem. Co. v. Osgood, 233 Ga. App. 111, 503 S.E.2d 371 (1998).
Allegations as to demand held sufficient.
- Pleading showing that plaintiff made due proof of death of insured, that payment had been refused, and that upon being informed, only after she had fraudulently been induced to sign release, that the sum of $3.30 was all she was entitled to recover, she expressed her dissatisfaction, stated that she did not understand the transaction which she was fraudulently induced to enter into, and tendered back the amount she had received, making the offer a continuous one, set a cause of action for recovery of the amount of the policy, and of damages and attorney's fees under this section. Industrial Life & Health Ins. Co. v. Johnson, 62 Ga. App. 630, 9 S.E.2d 121 (1940).
Admission of liability and small offer held to justify penalty.
- Where the defendant in its answer admitted that it was indebted to the plaintiff and since the amount offered the plaintiff was a small portion of the lowest estimate of the repairs necessary as a result of the incident out of which the claim under the policy arose, it cannot be said that the finding of the penalty and attorney's fees under this section was unauthorized. Fidelity & Cas. Co. v. Mangum, 102 Ga. App. 311, 116 S.E.2d 326 (1960).
Denial of defendant's motion for continuance held not abuse of discretion.
- Where in view of history of the insurance case before it and the evidence on the hearing for a continuance, the trial court was authorized to determine that the defendant would not by a continuance be placed in any better position than it was at the trial to defend against the demand for the statutory penalty and attorney's fees, made in the plaintiff's amendment, the trial court did not abuse its discretion in overruling the motion for a continuance. National Life & Accident Ins. Co. v. Moore, 86 Ga. App. 618, 72 S.E.2d 141 (1952).
Amendment of complaint allowed.
- Plaintiff insured was allowed to amend a second time to clarify a claim for a bad faith breach of an insurance contract under O.C.G.A. § 33-4-6, based on a refusal to pay disability benefits, because defendant insurers were on notice of the claim, and in fact, the parties had conducted discovery on its merits; however, the court granted the insurers leave to file a motion for summary judgment on the claim, if they chose, because briefing the issue was an efficient use of judicial resources. Worsham v. Provident Cos., 249 F. Supp. 2d 1325 (N.D. Ga. 2002).
Insured was allowed to amend the insured's complaint, which alleged that several insurers violated O.C.G.A. § 33-4-6 in the handling of the insured's claim under a homeowners' policy, so as to add claims for negligence in the handling of the insured's claim; Georgia law was ambiguous as to whether the insured could recover for negligent, as well as bad faith, failure to settle the insured's claim, and thus, the amendment was not futile. Cordell v. Pac. Indem., F. Supp. 2d (N.D. Ga. July 11, 2006).
Amount in controversy for jurisdiction.
- Motion to remand was denied because the amount in controversy satisfied 28 U.S.C. § 1332 since an insurer proved by a preponderance of the evidence that the benefit payable under a life insurance policy was $51,000, which, when added with the statutory penalty of $25,500 under O.C.G.A. § 33-4-6, totaled $76,500. Estate of Thornton v. Unum Life Ins. Co. of Am., 445 F. Supp. 2d 1379 (N.D. Ga. 2006).
Bifurcation of claims proper.
- Trial court was authorized to conclude, after extensive discussion with the parties, that bifurcation of an insured's breach of an insurance contract and bad faith failure to pay benefits claims were appropriate under O.C.G.A. § 9-11-42(b) because coverage turned on whether the insured's debilitating condition arose from an injury or sickness, and the discrete coverage issue had to be resolved first since bad faith was irrelevant absent coverage; even if a single action was required under O.C.G.A. § 33-4-6, nothing in the case violated the requirement because the insured brought the claims against the insurer in a single civil action, and the claims were resolved in that action, albeit through a bifurcated proceeding. Saye v. Provident Life & Accident Ins. Co., 311 Ga. App. 74, 714 S.E.2d 614 (2011), cert. denied, No. S11C1857, 2011 Ga. LEXIS 984 (Ga. 2011).
2. Burden of Proof and Evidence
Proper demand must be shown by evidence.
- Such a demand as required by this section in order for the insured to recover damages in addition to the loss not being shown by the evidence, the verdict for damages given by the section was unauthorized. The judgment overruling the defendant's motion for a new trial was affirmed on condition that such damages be written off. Alliance Ins. Co. v. Williamson, 36 Ga. App. 497, 137 S.E. 277, cert. denied, 36 Ga. App. 825, 138 S.E. 267 (1927).
Evidence held not to prove demand at proper time.
- The plaintiff having failed to prove any demand for payment at a time when she had the absolute right to make such demand, a verdict for damages and attorney's fees was unauthorized by the evidence and the applicable rules of law. Life Ins. Co. v. Burke, 219 Ga. 214, 132 S.E.2d 737 (1963).
Prior to 1979 bad faith was held fact to be proved.
- Bad faith in refusing to pay a claim within 60 days after demand was a fact to be proved in order to recover the penalty and attorney's fees provided by this section. Pearl Assurance Co. v. Nichols, 73 Ga. App. 452, 37 S.E.2d 227 (1946); Glens Falls Indem. Co. v. Gottlieb, 76 Ga. App. 70, 44 S.E.2d 706 (1947).
Unless there was evidence of a frivolous and unfounded denial of liability, no recovery could be had under this section. Morris v. Mutual Benefit Life Ins. Co., 258 F. Supp. 186 (N.D. Ga. 1966).
Burden of showing bad faith was on the insured. Reserve Life Ins. Co. v. Bearden, 96 Ga. App. 549, 101 S.E.2d 120 (1957), aff'd, 213 Ga. 904, 102 S.E.2d 494 (1958); Whitlock v. Interstate Life & Accident Ins. Co., 112 Ga. App. 235, 144 S.E.2d 541 (1965); Georgia Farm Bureau Mut. Ins. Co. v. Calhoun, 127 Ga. App. 213, 193 S.E.2d 35 (1972).
To support a cause of action under O.C.G.A. § 33-4-6, the insured bears the burden of proving that the refusal to pay the claim was made in bad faith. Central Nat'l Ins. Co. v. Dixon, 188 Ga. App. 680, 373 S.E.2d 849 (1988); Massachusetts Bay Ins. Co. v. Hall, 196 Ga. App. 349, 395 S.E.2d 851, cert. denied, 196 Ga. App. 908, 395 S.E.2d 851 (1990).
In a policy holder's suit asserting breach of contract, bad faith refusal to advance defense costs, and declaratory judgment, the policy holder could not establish the first element of a bad faith claim because the underlying litigation, which alleged that the trustees breached the trustees' fiduciary duties, was not covered under the claims-made policy. Langdale Co. v. Nat'l Union Fire Ins. Co., 110 F. Supp. 3d 1285 (N.D. Ga. 2014).
Plaintiff must show bad faith.
- In actions brought under this section the burden of showing bad faith on the part of the defendant was on the plaintiff. Pearl Assurance Co. v. Nichols, 73 Ga. App. 452, 37 S.E.2d 227 (1946); Witt v. Pennsylvania Nat'l Mut. Cas. Ins. Co., 117 Ga. App. 838, 162 S.E.2d 251 (1968).
The burden was on the plaintiff to show bad faith on the part of the defendant in refusing to pay the claim within 60 days after demand. Life & Cas. Ins. Co. v. Freemon, 80 Ga. App. 443, 56 S.E.2d 303 (1949). For comment, see 12 Ga. B.J. 337 (1950).
The burden was on the plaintiff to show bad faith on the part of the defendant in refusing to pay a claim or in offering an amount in settlement of the claim which was less than the amount of the loss found by the jury. Security Ins. Co. v. Hudgins, 87 Ga. App. 711, 75 S.E.2d 267 (1953).
In an action to recover penalties and attorney's fees for the refusal of an insurer to pay a claim, it had to be shown that the refusal was in "bad faith," and the burden was on the insured to show that such refusal had been made in bad faith. Interstate Life & Accident Ins. Co. v. Williamson, 220 Ga. 323, 138 S.E.2d 668, answer conformed to, 110 Ga. App. 557, 139 S.E.2d 429 (1964); Interstate Life & Accident Ins. Co. v. Brown, 146 Ga. App. 622, 247 S.E.2d 205 (1978).
The burden of proof is on the insured to establish bad faith. Winningham v. Centennial Ins. Co., 708 F.2d 658 (11th Cir. 1983).
In an action to recover penalties and attorney fees for the refusal of an insurer to pay a claim it must be shown that the refusal was in "bad faith," and the burden is on the insured to show that such refusal was made in bad faith. Republic Ins. Co. v. Martin, 182 Ga. App. 390, 355 S.E.2d 694 (1987).
When insured fails to meet initial burden, no damage award.
- When insured failed to meet the insured's initial burden of producing "any" evidence of insurer's "bad faith" refusal to pay the insured's demand, the award of damages pursuant to O.C.G.A. § 33-4-6 could not stand. Canal Ins. Co. v. Bryant, 173 Ga. App. 173, 325 S.E.2d 839 (1984).
Compliance with requirements as to demand.
- The plaintiff having alleged bad faith in her petition, the burden was on her to prove bad faith under the applicable rules of law, and that she had complied with the law and decisions of the Supreme Court as to "demand" for payment. Life Ins. Co. v. Burke, 219 Ga. 214, 132 S.E.2d 737 (1963).
Failure to comply with demand did not shift burden as to bad faith.
- The mere fact that an insurer did not comply with a demand was not evidence of bad faith nor was any burden thereby cast on the insurer to prove good faith. Interstate Life & Accident Ins. Co. v. Williamson, 220 Ga. 323, 138 S.E.2d 668, answer conformed to, 110 Ga. App. 557, 139 S.E.2d 429 (1964); Interstate Life & Accident Ins. Co. v. Brown, 146 Ga. App. 622, 247 S.E.2d 205 (1978).
Unless delay was unusual and unnecessary.
- The burden of proof, where unusual and unnecessary delay is shown, should be upon the company to give reason for the delay. Missouri State Life Ins. Co. v. Lovelace, 1 Ga. App. 446, 58 S.E. 93 (1907); Piedmont S. Life Ins. Co. v. Gunter, 108 Ga. App. 236, 132 S.E.2d 527 (1963) ("burden of proof" used in sense of "risk of nonpersuasion").
Where unusual and apparently unnecessary delay in paying the claim is shown, the burden is upon the company to show that the refusal was made in good faith. Georgia Life Ins. Co. v. McCranie, 12 Ga. App. 855, 78 S.E. 1115 (1913).
Supreme Court held insurer must show good cause.
- The intention of this section was to penalize insurers for resisting and delaying payment unless good cause was shown. Colonial Life & Accident Ins. Co. v. McClain, 243 Ga. 263, 253 S.E.2d 745 (1979), answer conformed to, 150 Ga. App. 883, 258 S.E.2d 655 (1979).
Denying penalty because evidence would support verdict for insurer is incorrect.
- The rule that a finding of bad faith is not authorized if the evidence would have supported a verdict in accordance with the contentions of the defendant is incorrect. Colonial Life & Accident Ins. Co. v. McClain, 243 Ga. 263, 253 S.E.2d 745 (1979), answer conformed to, 150 Ga. App. 883, 258 S.E.2d 655 (1979).
Former rule.
- Where the jury would have been authorized, under the evidence, to have found that the insured came to his death by reason of riding or operating a motorcycle, in which case his death would have been covered by the policy, or that the insured did not so come to his death, the plaintiff failed to prove bad faith on the part of the defendant in refusing to pay. Life & Cas. Ins. Co. v. Freemon, 80 Ga. App. 443, 56 S.E.2d 303 (1949).
Prior to 1979 it was held that if the evidence could be said to have authorized a finding in accordance with the contentions of the defendant, a finding of bad faith was not authorized. Lincoln Life Ins. Co. v. Anderson, 109 Ga. App. 238, 136 S.E.2d 1 (1964); Old Colony Ins. Co. v. Dressel, 109 Ga. App. 465, 136 S.E.2d 525, aff'd, 220 Ga. 354, 138 S.E.2d 886 (1964); United States Fid. & Guar. Co. v. Woodward, 118 Ga. App. 591, 164 S.E.2d 878 (1968); Fidelity Bankers Life Ins. Co. v. Renew, 121 Ga. App. 883, 176 S.E.2d 103 (1970); Phillips v. State Farm Mut. Auto. Ins. Co., 437 F.2d 365 (5th Cir. 1971); Boston-Old Colony Ins. Co. v. Warr, 127 Ga. App. 364, 193 S.E.2d 624 (1972).
At the time of the trial the insurer has the right to show good faith in refusing to pay in reply to the plaintiff's charge and evidence that the refusal was in bad faith. Interstate Life & Accident Ins. Co. v. Williamson, 220 Ga. 323, 138 S.E.2d 668, answer conformed to, 110 Ga. App. 557, 139 S.E.2d 429 (1964).
Insurer's judgment on former trial not evidence of good faith without record.
- A verdict and judgment in the insurer's favor on a former trial, without the aid of the record of the trial in which the verdict was returned and the judgment entered, would constitute no proof that the defense interposed by the insurer on the former trial was upon probable cause or made in good faith. Reserve Life Ins. Co. v. Peavy, 98 Ga. App. 268, 105 S.E.2d 465 (1958).
The faith of an insurance company should not be judged by the preliminary proofs or other ex parte affidavits, but by the case made at the trial. Interstate Life & Accident Ins. Co. v. Williamson, 110 Ga. App. 557, 139 S.E.2d 429 (1964).
Questions can only be determined by admissible evidence.
- The question of good or bad faith on the part of the insurance company in refusing to make payment to the beneficiary can only be determined from evidence that is relevant and admissible for a determination of the case on its merits. New York Life Ins. Co. v. Ittner, 59 Ga. App. 89, 200 S.E. 522 (1938), later appeal, 62 Ga. App. 31, 8 S.E.2d 582 (1940).
Evidence of cancellation of insurance held inadmissible.
- Where, in an action on a policy of insurance for the loss, by fire, or an automobile insured thereunder, the plaintiff seeks to recover the value of the automobile, attorney's fees, and the statutory penalty for bad faith, under this section, it is such error as to require the grant of a new trial to permit the introduction of evidence, for the purpose of demonstrating bad faith, that some ten and one-half months after the loss and some five months after the commencement of action to recover for the loss of the automobile, the insurer, without denying liability for the loss of the automobile, canceled the insurance for the unexpired term. Calvert Fire Ins. Co. v. Mack, 88 Ga. App. 617, 76 S.E.2d 829 (1953).
Failure to prove any defense is evidence of bad faith.
- The complete failure of the insurer to prove any defense to an action on the policy is evidence of the bad faith contemplated by this section and subjects the insurer to a verdict for the statutory penalty and attorney's fees. Reserve Life Ins. Co. v. Ayers, 217 Ga. 206, 121 S.E.2d 649 (1961); Hanover Ins. Co. v. Hallford, 127 Ga. App. 322, 193 S.E.2d 235 (1972); Key Life Ins. Co. v. Mitchell, 129 Ga. App. 192, 198 S.E.2d 919 (1973); Cincinnati Ins. Co. v. Gwinnett Furn. Mart, Inc., 138 Ga. App. 444, 226 S.E.2d 283 (1976).
When no evidence substantiates pled defense, bad faith may be found.
- When the insurer introduced no evidence in explanation of its varied changes of position in its defenses to an action by the beneficiary, and the answers to such questions as to whether the policy had been issued, the application approved, and the premium paid, were certainly within its knowledge or easily ascertainable, and when the insurer had ample time to investigate and establish some basis, if basis there was, for its contention that the applicant insured had misrepresented his use of intoxicants on the application, but failed to do so, the jury was authorized to find that the insurer's refusal to pay the loss covered by the contract of insurance was in bad faith. National Life & Accident Ins. Co. v. Moore, 86 Ga. App. 618, 72 S.E.2d 141 (1952).
Where the insurance company pleaded that the policy was obtained by fraud on the part of the plaintiff and there was no evidence introduced on the trial of the case to substantiate this, the jury was authorized to find for the plaintiff on the issue raised by the pleadings that the insurance company's failure to pay the loss was in "bad faith." Guaranty Life Ins. Co. v. Brown, 92 Ga. App. 847, 90 S.E.2d 97 (1955).
Where the insured notified the insurer that he had not received a premium due notice after discovering that the insurer had cancelled his policy, and the insurer could produce nothing from its records showing that it had sent the notice and continued to refuse to pay the insured's claim, the jury was authorized to find bad faith on the part of the insurer. State Farm Mut. Auto. Ins. Co. v. Drury, 222 Ga. App. 196, 474 S.E.2d 64 (1996).
Refusal to adjust or pay any loss evidences bad faith.
- Refusal upon the part of the insurance company to adjust or pay for any loss or damage claimed, after having received notice of loss and demand for payment, constitutes evidence of bad faith in an action based upon this section. Central Mfrs. Mut. Ins. Co. v. Graham, 24 Ga. App. 199, 99 S.E. 434 (1919).
A failure upon the part of the insurance company to investigate the alleged loss or damage and a denial upon the part of the company of any liability whatsoever upon the ground that such loss or damage was not recoverable under the policy, but arose from some cause not covered by the policy, may be considered as evidence of bad faith. Central Mfrs. Mut. Ins. Co. v. Graham, 24 Ga. App. 199, 99 S.E. 434 (1919).
Refusal to pay until other claimant is satisfied.- Where the agents of a life insurance company show active sympathy with one who claims the proceeds of a policy, against the legal representative of the insured, and refuse to pay any part of the proceeds until such claimant is satisfied, although such claim is for a portion only, it is evidence of bad faith, in the meaning of this section, and the company may be proceeded against for 25 percent damages and counsel fees. Mutual Life Ins. Co. v. Watson, 30 F. 653 (S.D. Ga. 1887).
Evidence that burglary charges were pending against the insured and that he had been released on bond at the time of the fires was admissible where presented in a noninflammatory manner by the insurance company which was defending against the insured's claim of bad-faith denial of coverage, such evidence being admissible to prove the insured's poor financial condition and therefore falling within a specific exception to the federal rule prohibition on use of evidence of other crimes. Aetna Cas. & Sur. Co. v. Gosdin, 803 F.2d 1153 (11th Cir. 1986).
Evidence held to show bad faith.
- Where a policy of fire insurance contains a stipulation that "the assured is the sole and undisputed owner, absolutely in fee simple, of the land on which the insured buildings stand, unless it is otherwise expressed in writing hereon," and where in the same policy it is provided that "privilege is granted for any of the above-described buildings to stand on leased ground, or ground the property of others, or upon ground to which the title may be questioned," and where the evidence shows that, at the time application for insurance was made, the insurance company, through its solicitor or agent, knew that the applicant did not own the land on which the building sought to be insured was situated, the jury is authorized to find for the insured damages and attorney's fees. Globe & Rutgers Fire Ins. Co. v. Walker, 150 Ga. 163, 103 S.E. 407 (1920).
The insurer's denial of the existence of the policy, and denial of the payment of premiums thereon, up to and including the trial and until the premium receipt book was shown in court by the beneficiary, was sufficient basis for the trial judge to find that the insurer acted in "bad faith." Interstate Life & Accident Ins. Co. v. Hopgood, 133 Ga. App. 6, 209 S.E.2d 703 (1974).
Where the evidence supported a finding that the insurer alternately led the insured and his daughter, who inquired frequently about the status of their claim, to believe that the claim would be paid, and thus lulled them into forbearing suit to protect their interests, the jury was authorized to award plaintiffs bad faith penalties and attorney fees. Republic Ins. Co. v. Martin, 182 Ga. App. 390, 355 S.E.2d 694 (1987).
Even assuming that investigation of the insured's fire loss led to some delay, the insured was not notified of it nor of the insurer's desire to rebuild rather than pay under the policies' limits until seven months after the fire. This time lag and the extent of the insurer's offer were evidence supporting a bad faith finding. Southern Ins. Underwriters, Inc. v. Ray, 188 Ga. App. 469, 373 S.E.2d 236, cert. denied, 188 Ga. App. 912, 373 S.E.2d 236 (1988).
Evidence was sufficient to support a finding of bad faith and an award of attorney's fees where the defendant insurer failed to follow industry procedures for contesting coverage and failed to maintain proper reserves to pay claims, the president of the defendant insurer admitted that he used the insurer's funds for himself, and the defendant insurer failed to investigate any of the plaintiff's medical bills for over 4 years and never attempted to verify some of them. American Ass'n of Cab Cos. v. Olukoya, 233 Ga. App. 731, 505 S.E.2d 761 (1998).
Evidence held not to show bad faith.
- In an action to recover upon a fire insurance policy for damage to personal property such as a piano, caused by fire, where the defendant denies liability under the policy, and where it appears from the evidence that after the damage to the property the plaintiff contended that although the property was not totally destroyed it was nevertheless a total loss and that the property could not be restored by being repaired, and where the defendant contended that the property was not a total loss but could be repaired, and offered to repair the property in compliance with a provision of the policy that the defendant had an option to repair the property, the evidence is insufficient to authorize an inference that the defendant's refusal to pay the loss was in bad faith. National Fire Ins. Co. v. Shuman, 50 Ga. App. 846, 178 S.E. 758 (1935).
Where it appears that the defendant insurance company, prior to the commencement of the action, offered to pay the plaintiff the full amount to which the plaintiff was entitled under the provisions of the policy, and that the plaintiff refused to accept said sum, there was no evidence of bad faith on the part of the company, nor a refusal to pay the amount due under the provisions of the policy, and the judgment in favor of the plaintiff against the defendant for attorney's fees was unauthorized. Life & Cas. Ins. Co. v. McLeod, 70 Ga. App. 181, 27 S.E.2d 871 (1943).
As a title insurer did not deny coverage; hired an appraiser to evaluate the insureds' loss; and tendered the insureds a check based on that evaluation, which the insureds' rejected, the trial court was entitled to find that the insurer did not act in bad faith. Jimenez v. Chi. Title Ins. Co., 310 Ga. App. 9, 712 S.E.2d 531 (2011).
Evidence as to amount of attorney's fee.
- The evidence of what amount of counsel fee would be reasonable should be confined to a certain fee, and inquiry should not extend to a conditional fee, in the particular case. Nor can any estimate be made to cover future litigation by motion for a new trial, writ of error, etc., there being no certainty that such future litigation will occur. If witnesses estimate fees on a basis which is too comprehensive, or on a misconception as to what the nature of the case involves, they should be requested on cross-examination to eliminate the superfluous elements and correct their estimates accordingly. Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 12 S.E. 18 (1890).
Similar transaction evidence on failure to pay.
- Trial court did not abuse the court's discretion in ruling that a widow could not introduce evidence of an insurer's conduct towards insureds in two prior cases in which the court refused to honor incontestability clauses to demonstrate bad faith because the trial court was entitled to find that the prior cases were materially dissimilar from the widow's case, given that neither of those cases involved coverage under the group policy at issue and the revisions to the certificate of insurance forms made that year. Flynt v. Life of the South Ins. Co., 312 Ga. App. 430, 718 S.E.2d 343 (2011), cert. denied, No. S12C0461, 2012 Ga. LEXIS 305 (Ga. 2012).
3. Questions for Jury or Court
Jury decides if insurer has given proper consideration to insured's interest in settlement.
- In deciding whether to accept an offer of settlement within policy coverage the insurer must accord the interest of its insured the same faithful consideration it gives its own interest, and it is for the jury to decide whether the insurer has or has not so acted. Great Am. Ins. Co. v. Exum, 123 Ga. App. 515, 181 S.E.2d 704 (1971).
Bad faith is usually a jury question. Liberty Mut. Ins. Co. v. Atlantic C.L.R.R., 66 Ga. App. 826, 19 S.E.2d 377 (1942); American Cas. Co. v. Callaway, 75 Ga. App. 799, 44 S.E.2d 400 (1947); Life & Cas. Ins. Co. v. Freemon, 80 Ga. App. 443, 56 S.E.2d 303 (1949), for comment, see 12 Ga. B.J. 337 (1950); Life & Cas. Ins. Co. v. Brown, 95 Ga. App. 354, 98 S.E.2d 68, rev'd on other grounds, 213 Ga. 390, 99 S.E.2d 98 (1957); Jackson v. Motors Ins. Corp., 97 Ga. App. 658, 104 S.E.2d 253 (1958); American Family Life Assurance Co. v. United States Fire Co., 885 F.2d 826 (11th Cir. 1989).
Jury should determine bad faith.
- Whether there was such bad faith as would authorize the recovery of attorney's fees, was, under the facts of this case, a question for the jury. Continental Aid Ass'n v. Hand, 22 Ga. App. 726, 97 S.E. 206 (1918).
Where plaintiff submitted proof of disability and defendant insurance company waited six months and then refused payment, it was a question for the jury to determine whether the refusal to pay was in bad faith or not and whether the plaintiff was entitled to recover damages and attorney's fees. Liner v. Travelers Ins. Co., 50 Ga. App. 643, 180 S.E. 383 (1935).
It is usually a question for the jury whether an insurance company, in refusing to pay, acted in bad faith and thereby subjected itself to the penalty and attorney's fees as provided by this section. New York Life Ins. Co. v. Williamson, 53 Ga. App. 28, 184 S.E. 755 (1936); Glens Falls Indem. Co. v. Gottlieb, 76 Ga. App. 70, 44 S.E.2d 706 (1947); Guaranty Life Ins. Co. v. Brown, 92 Ga. App. 847, 90 S.E.2d 97 (1955); Millers Nat'l Ins. Co. v. Waters, 97 Ga. App. 103, 102 S.E.2d 193 (1958).
Whether or not the defendant acted in bad faith in stopping disability payments and in refusing to continue them was for the jury. New York Life Ins. Co. v. Bradford, 57 Ga. App. 657, 196 S.E. 92 (1938).
Ordinarily, questions of an insurer's bad faith in refusing to pay a claim for the jury. Pearl Assurance Co. v. Nichols, 73 Ga. App. 452, 37 S.E.2d 227 (1946).
Bad faith is a question for the jury to pass on, and it may arise from the facts and circumstances of the case, that is, from the whole complexion of the case as presented to the jury. North British & Mercantile Ins. Co. v. Mercer, 90 Ga. App. 143, 82 S.E.2d 41, aff'd, 211 Ga. 161, 84 S.E.2d 570 (1954).
In an action to recover benefits for total disability under the provisions of an insurance policy where the insurer presents no evidence and relies in defense solely on the undisputed facts as brought out by the insured and his witnesses on direct and cross-examination as the basis of its refusal to make total disability payments, and such facts, upon application of long-standing decisions of the Supreme Court, seemingly afford no substantial basis for regarding the insured as other than totally disabled, it is not error to submit the issue of bad faith and attorney's fees to the jury, and a verdict for attorney's fees is not unauthorized as a matter of law. Travelers Ins. Co. v. Stanley, 117 Ga. App. 445, 160 S.E.2d 876 (1968).
If, at trial, the plaintiff presents evidence showing the insurance company's bad faith and the company's defense meets the "reasonable and probable cause" standard, the question of bad faith must be submitted to the jury for final resolution. Colonial Life & Accident Ins. Co. v. McClain, 144 Ga. App. 201, 240 S.E.2d 759 (1977); Colonial Life & Accident Ins. Co. v. McClain, 150 Ga. App. 883, 258 S.E.2d 655 (1979).
The question of bad faith is for the jury unless it can be said that as a matter of law there was a reasonable defense which vindicates the insurer's good faith. St. Paul Fire & Marine Ins. Co. v. Snitzer, 183 Ga. App. 395, 358 S.E.2d 925 (1987).
Trial court did not err in denying the insured's motion for summary judgment on the issue of whether the insured was entitled to bad faith penalties under O.C.G.A. § 33-4-6 for the insurer's refusal to pay its vandalism claim because there were disputed questions of fact as to whether the insured sufficiently cooperated with the investigation of the vandalism claim, and thus whether the insured breached the insurance policy and was barred from recovery on that basis. R&G Invs. & Holdings, LLC v. Am. Family Ins. Co., 337 Ga. App. 588, 787 S.E.2d 765 (2016), cert. denied, No. S16C1830, 2017 Ga. LEXIS 144 (Ga. 2017).
Bad faith not a question of law.
- The question of bad faith is a question for the jury and not a question of law. National Cas. Co. v. Tanner, 100 Ga. App. 618, 112 S.E.2d 232 (1959).
Bad faith issue not subject to motion for directed verdict.
- The existence of bad faith is a jury question and not subject to a motion for a directed verdict. Atlantic Am. Life Ins. Co. v. Morris, 144 Ga. App. 577, 241 S.E.2d 463 (1978).
Unless no evidence of bad faith is introduced.
- If there is no evidence of a frivolous or unfounded refusal to pay, the court, for the furtherance of justice, should see to it that a verdict which illegally carries a penalty for bad faith is not allowed to stand. Pearl Assurance Co. v. Nichols, 73 Ga. App. 452, 37 S.E.2d 227 (1946); Life & Cas. Ins. Co. v. Freemon, 80 Ga. App. 443, 56 S.E.2d 303 (1949). For comment, see 12 Ga. B.J. 337 (1950).
Where no evidence of bad faith is introduced, the issue should not be presented to the jury, and an award under this section is unjustified. Interstate Life & Accident Ins. Co. v. Brown, 146 Ga. App. 622, 247 S.E.2d 205 (1978).
Prior to 1979 defense authorizing verdict for insurer made bad faith question for court.
- Where the defense presented by the defendant insurance company, if believed, would authorize a verdict for it, the issue of "bad faith" in refusing to pay the claim should not be submitted to the jury. Hermitage Health & Life Ins. Co. v. Baggs, 115 Ga. App. 138, 154 S.E.2d 270 (1967).
Where the evidence adduced showed a reasonable and probable cause for denial of a claim, it was error to submit the issue of bad faith to the jury. Witt v. Pennsylvania Nat'l Mut. Cas. Ins. Co., 117 Ga. App. 838, 162 S.E.2d 251 (1968).
If question of liability close.
- If the question of liability was a close one, the court had to see to it that a verdict illegally carrying a penalty for bad faith was not allowed to stand. Pearl Assurance Co. v. Nichols, 73 Ga. App. 452, 37 S.E.2d 227 (1946); Life & Cas. Ins. Co. v. Freemon, 80 Ga. App. 443, 56 S.E.2d 303 (1949), for comment, see 12 Ga. B.J. 337 (1950).
Justiciable controversy was presented.
- Where the evidence adduced presented a justiciable controversy, the trial judge was authorized to conclude that there was a reasonable ground for contesting the claim so as to remove the issue from the jury and direct a verdict for the insurer. Ware v. Nationwide Mut. Ins. Co., 140 Ga. App. 660, 231 S.E.2d 556 (1976); Smith v. New York Life Ins. Co., 579 F.2d 1267 (5th Cir. 1978).
Former rule was held incorrect by Supreme Court in 1979.
- The rule that a finding of bad faith is not authorized if the evidence would have supported a verdict in accordance with the contentions of the defendant is incorrect. Colonial Life & Accident Ins. Co. v. McClain, 243 Ga. 263, 253 S.E.2d 745, answer conformed to, 150 Ga. App. 883, 258 S.E.2d 655 (1979).
In any case, jury is not required if not demanded.
- It was not error for the judge, sitting without a jury, to render judgment for damages and attorney's fees under this section as well as for the amount stated in the face of the insurance policy, the case being in default, and no jury having been demanded. Great E. Cas. Co. v. Haynie, 147 Ga. 119, 92 S.E. 939 (1917).
Bad faith to be judged by case made at trial.
- The trial court erred in awarding summary judgment to an insurance company as to liability for bad-faith damages and attorney fees, as the issue of bad faith should be judged by the case made at trial, not by preliminary proofs or other ex parte affidavits. Stegall v. Guardian Life Ins. Co. of Am., 171 Ga. App. 576, 320 S.E.2d 575 (1984).
The issue of bad faith should be judged by the case made at trial, not by the preliminary proofs or other ex parte affidavits. Blue Ridge Ins. Co. v. Maddox, 185 Ga. App. 153, 363 S.E.2d 595, cert. denied, 185 Ga. App. 909, 363 S.E.2d 595 (1987).
Summary judgment held improper.
- When the evidence of record did not establish as a matter of law that the insurer acted reasonably in refusing to honor the insured's claim, the trial court erred in granting the insurer summary judgment on a claim for a bad-faith penalty and attorney fees. Travillian v. Georgia Farm Bureau Mut. Ins. Co., 182 Ga. App. 241, 355 S.E.2d 677 (1987).
Insurer's summary judgment motion denied even though reasonable factual dispute.- Insurer's motion for summary judgment on plaintiff's claim of bad faith penalties and attorney's fees was denied even though a reasonable dispute existed as to whether arson destroyed plaintiff's property since the faith of the company should not be judged by the preliminary proofs or other ex parte affidavits but at the case made at trial. Forbus v. Allstate Ins. Co., 603 F. Supp. 113 (N.D. Ga. 1984).
Summary judgment to insurer proper following theft by computer virus.- As an insurance coverage dispute arose from a theft of the insured's account by a key-logger virus, summary judgment was properly granted to the insurer on the insured's breach of contract and bad faith claims because the loss was within the policy's malicious-code exclusion. Metro Brokers, Inc. v. Transp. Ins. Co., F.3d (11th Cir. Mar. 5, 2015)(Unpublished).
Amount of penalties and attorney fees a jury question.
- Trial court erred in determining the amount of bad faith penalties and attorney fees against an insured under O.C.G.A. § 33-4-6 because it was premature in determining the amount of the penalty without first submitting it to a jury as required by § 33-4-6(a). Transp. Ins. Co. v. Piedmont Constr. Group, LLC, 301 Ga. App. 17, 686 S.E.2d 824 (2009), cert. denied, No. S10C0507, 2010 Ga. LEXIS 312 (Ga. 2010).
Jury trial on attorney fees and expenses not error.
- Although O.C.G.A. § 33-4-6 sets forth the exclusive remedy for bad faith denial of insurance benefits so that litigation expenses under O.C.G.A. § 13-6-11 are not recoverable, a trial court did not commit any reversible error by ordering a jury trial on issues relating only to attorney fees and not other litigation expenses. Atl. Title Ins. Co. v. Aegis Funding Corp., 287 Ga. App. 392, 651 S.E.2d 507 (2007), cert. denied, No. S08C0137, 2008 Ga. LEXIS 107 (Ga. 2008).
4. Instructions
Charge on bad faith required when in issue.
- Where the issue of bad faith is raised by the pleadings and supported by the evidence, it is the duty of the court to charge the jury the law relative to such issue. Templeton v. Kennesaw Life & Accident Ins. Co., 216 Ga. 770, 119 S.E.2d 549 (1961).
Request for charge is necessary.
- In the absence of a timely written request, it was not error for a trial court to charge this section without defining the term "bad faith" as applied to insurance companies. Hanover Fire Ins. Co. v. Elrod, 91 Ga. App. 403, 85 S.E.2d 821 (1955).
Charge is properly given where insurer made low offer.
- Where the defendant had offered the plaintiff less than 75 cents on the dollar of the lowest estimate proved on the trial of the case and this estimate did not include certain repairs claimed to be necessary by the plaintiff and which the witness making the estimate did not include because he did not know whether they were necessary or not, it cannot be said that a charge complained of, authorizing the jury to award attorney's fees and damages as provided in this section, was error when the complaint was based on there being no evidence of bad faith. Fidelity & Cas. Co. v. Mangum, 102 Ga. App. 311, 116 S.E.2d 326 (1960).
The court errs in charging that the plaintiff would be entitled to recover the penalty merely on proof of refusal and regardless of whether bad faith had been proved to the satisfaction of the jury. Reserve Life Ins. Co. v. Gay, 96 Ga. App. 601, 101 S.E.2d 158 (1957), rev'd on other grounds, 214 Ga. 2, 102 S.E.2d 492 (1958).
Charge on section improper where insurer had reasonable ground to deny liability.
- Where the defenses relied on by the insurance company cannot justly be said to be frivolous or obviously without merit, the court is not authorized to give in charge to the jury any instructions whatsoever with regard to the assessment of damages and attorney's fees against the company. Morris v. Imperial Ins. Co., 106 Ga. 461, 32 S.E. 595 (1899).
Where the defendant insurer had reasonable ground for denying liability, charge relative to attorney fees was error. Gulf Life Ins. Co. v. Moore, 90 Ga. App. 791, 84 S.E.2d 696 (1954).
If there is any reasonable ground for the insurer to contest the claim, there is no bad faith, and it is error for the trial court to charge the jury under this section that they may return a verdict for penalties and attorney's fees. Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 127 S.E.2d 454 (1962); Pioneer Nat'l Title Ins. Co. v. American Cas. Co., 459 F.2d 963 (5th Cir. 1972).
Charge on section held of proper scope.
- Where the court charged this section and defined the meaning of the term "bad faith" as used in the section, and then clearly instructed the jury that they would have to find by a preponderance of the evidence that the failure and refusal to make payment was on account of bad faith on the part of the insurance company before it would be liable for damages or attorney's fees, and that if the company did not act in bad faith, the insured could not recover either damages or attorney's fees, the charge was not error. Palatine Ins. Co. v. Gilleland, 79 Ga. App. 18, 52 S.E.2d 537 (1949).
Charge as to waiving proof of loss harmless if liability admitted.
- Where the defendant's answer admitted liability in a lesser amount than the plaintiff claimed, a charge with reference to waiving a proof of loss was, if error, harmless, for the admission of some liability waived the technical requirements of a proof of loss. Fidelity & Cas. Co. v. Mangum, 102 Ga. App. 311, 116 S.E.2d 326 (1960).
Jury bound to observe restrictive instructions on considering evidence.
- Where instructions are given to consider certain exhibits in regard to the question of bad faith, the jury is bound to consider such evidence solely for that restricted purpose. Hermitage Health & Life Ins. Co. v. Baggs, 115 Ga. App. 138, 154 S.E.2d 270 (1967).
5. Verdict and Judgment
An assessment of penalties is not a condition precedent to an award of attorney fees. Hardin v. Fireman's Fund Ins. Co., 150 Ga. App. 277, 257 S.E.2d 300 (1979).
Award of attorney's fees.
- That the jury awarded fees without also awarding damages of 25 percent or less, as provided for in this section, is no ground for setting aside their finding as to the attorney's fees. Continental Aid Ass'n v. Hand, 22 Ga. App. 726, 97 S.E. 206 (1918).
Since this section does not require that penalty damages be paid, but merely limits the amount of liability, such an award is not a condition precedent to the award of reasonable attorney's fees. American Reliable Ins. Co. v. Woodward, 143 Ga. App. 652, 239 S.E.2d 543 (1977).
Verdict denying damages for bad faith bars award of attorney's fees.
- The language used in a verdict, that "we, the jury, do not award any damages to the plaintiff for bad faith on the part of the defendant," nullifies that part of the jury's verdict awarding attorney's fees. Union Cent. Life Ins. Co. v. Cofer, 103 Ga. App. 355, 119 S.E.2d 281 (1961).
The award of attorney's fees is not authorized where the verdict states, "we, the jury, do not award any damages to the plaintiff for bad faith on the part of the defendant." Hardin v. Fireman's Fund Ins. Co., 150 Ga. App. 277, 257 S.E.2d 300 (1979).
Award of damages in absence of finding of bad faith was error.
- In a widow's suit against an insurer for failing to pay benefits under a life insurance policy, because the jury found the insurer was not guilty of bad faith in its refusal to pay these benefits but awarded the widow additional damages, the additional damages award was not authorized under O.C.G.A. § 33-4-6(a) because a finding of the insurer's bad faith was a condition precedent to such an award and there was no other authority for awarding additional damages for an insurer's failure to pay. Cherokee Nat'l Life Ins. Co. v. Eason, 276 Ga. App. 183, 622 S.E.2d 883 (2005).
Part of verdict awarding penalty and attorney's fees properly written off if without evidence.
- Where the evidence demands a finding that the insurance company did not act in bad faith in refusing to pay the claim, it is proper to write off that part of the verdict awarding a penalty and attorney's fees, where the verdict is otherwise supported by the evidence. Jackson v. Motors Ins. Corp., 97 Ga. App. 658, 104 S.E.2d 253 (1958).
Pleadings not amended after judgment to allow claims for statutory damages.
- After obtaining a judgment in its favor against uninsured motorist, the motorist could not amend pleadings to add claims for statutory damages, through O.C.G.A. §§ 33-4-6 and33-7-11, even though the judgment in the action in the motorist's favor held that the penalties and fees sought must be sought in an action against an uninsured motorist, because the trial court determined the court lacked authority to reopen the case after the judgment to allow amendment of the complaint. McCall v. Wyman, 173 Ga. App. 131, 325 S.E.2d 629 (1984).
Modification of order denying attorney's fees not authorized.
- When the trial court determined as a matter of law that there was no claim under an insurance policy, there could be no recovery of attorney's fees under O.C.G.A. § 33-4-6, and the court was without power to modify the court's order denying an attorney's fees award to plaintiff after the term of court expired in which that order was made. State Farm Mut. Auto. Ins. Co. v. Johnson, 242 Ga. App. 591, 530 S.E.2d 492 (2000).
6. Appeal
Damages and attorney's fees part of amount involved for appeal from justice of peace.
- In an action in a justice of the peace court, where the plaintiff, as a beneficiary in a life insurance policy, brought suit against the insurer to recover in the sum of $30.00, representing the amount due the plaintiff under the terms of the policy, $7.50 representing 25 percent of the amount sued for as damages, and $50.00 representing reasonable attorney's fees as provided in this section, which authorizes a recovery for damages and attorney's fees where the insurer has acted in bad faith in failing to pay the amount due under a policy within the required time, the amount sued for and claimed in the suit was in excess of $50.00, for purposes of appeal. Tate v. Industrial Life & Health Ins. Co., 58 Ga. App. 305, 198 S.E. 303 (1938).
Only damages counted in appeal from Civil Court of Fulton County.
- The penalty allowable under this section where sued for is considered as part of the amount involved in the action in determining if appeal lies from Civil Court of Fulton County to Court of Appeals. General Assurance Corp. v. Roberts, 92 Ga. App. 834, 90 S.E.2d 70 (1955).
Attorney's fees excluded from amount involved.
- The attorney's fees allowable under this section are not part of the "amount involved" in an action in the Civil Court of Fulton County. General Assurance Corp. v. Roberts, 92 Ga. App. 834, 90 S.E.2d 70 (1955).
Insured's verdict not disturbed if any evidence supports it.
- The question as to whether or not an insurance company acted in bad faith in refusing to pay a loss, where the evidence was conflicting but sufficient to support either a verdict for or against the insurer, was a question solely for the jury, and the Court of Appeals cannot say as a matter of law that its finding of bad faith was not authorized. Hanover Fire Ins. Co. v. Elrod, 91 Ga. App. 403, 85 S.E.2d 821 (1955).
In reviewing the determination of the issue of whether an insurer's refusal to pay is frivolous and unfounded, if there is some evidence to support the verdict of the trial court in favor of the insured, it will not be disturbed. National-Ben Franklin Ins. Co. v. Prather, 109 Ga. App. 459, 136 S.E.2d 499 (1964).
Proper rule is that a judgment for "bad faith" penalties and attorney's fees should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense which vindicates the good faith of the insurer. Progressive Cas. Ins. Co. v. Avery, 165 Ga. App. 703, 302 S.E.2d 605 (1983); Republic Ins. Co. v. Martin, 182 Ga. App. 390, 355 S.E.2d 694 (1987); First Fin. Ins. Co. v. American Sandblasting Co., 223 Ga. App. 232, 477 S.E.2d 390 (1996).
Unless as matter of law reasonable defense vindicates good faith of insurer.
- Judgment for the insured should be affirmed if there is any evidence to support it, unless it can be said as a matter of law that there was a reasonable defense which vindicates the good faith of the insurer. Colonial Life & Accident Ins. Co. v. McClain, 243 Ga. 263, 253 S.E.2d 745, answer conformed to, 150 Ga. App. 883, 258 S.E.2d 655 (1979); State Farm Fire & Cas. Co. v. Mills Plumbing Co., 152 Ga. App. 531, 263 S.E.2d 270 (1979); State Farm Mut. Auto. Ins. Co. v. Chadwick, 154 Ga. App. 394, 268 S.E.2d 436 (1980); Canal Ins. Co. v. Bryant, 166 Ga. App. 483, 304 S.E.2d 565 (1983).
Judgment to be affirmed absent defense indicating good faith of insurer.
- The judgment should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense which vindicates the good faith of the insurer. Georgia Int'l Life Ins. Co. v. Harden, 158 Ga. App. 450, 280 S.E.2d 863 (1981).
Award of attorney's fees not disturbed if within range of evidence as to value.
- Where loss is covered by the insurance policy and the insurer has refused to pay within 60 days after a demand has been made, an award of attorney's fees is not unauthorized as a matter of law; and an appellate court will not disturb the findings and judgment thereon when the award is within the range of evidence as to the reasonable value thereof. American Reliable Ins. Co. v. Woodward, 143 Ga. App. 652, 239 S.E.2d 543 (1977).
Penalty part of verdict will be written off if defendant acquitted of bad faith.
- Where the questions of law made in a case were of such character as to acquit the defendant of bad faith in refusing to pay the loss within the time limited by law, the Supreme Court will direct that, upon or before the entering of the remittitur, the plaintiff shall write off the items allowed for attorney's fees and damages in the finding of the jury and that the verdict thereupon will stand affirmed. Phenix Ins. Co. v. Clay, 101 Ga. 331, 28 S.E. 853, 65 Am. St. R. 307 (1897).
Defendant having judgment modified is entitled to cost of appeal.
- Where there was no evidence to authorize a verdict for attorney's fees under this section, this will not require a reversal, but direction will be given to write off the attorney's fees, and the defendant, having obtained a material modification of the judgment of the court below, is entitled to the cost of bringing the case to the Supreme Court. Empire Life Ins. Co. v. Allen, 141 Ga. 413, 81 S.E. 120 (1914).
Modification of penalty award when refusal not unfounded as to one claim.
- In action to recover double indemnity benefits for alleged accidental death of insured, where jury found in favor of the plaintiff and awarded penalty and attorney's fees against the insurer, the appellate court would divide the penalty and attorney's fees as between the death benefit claim and the double indemnity claim, and direct a write-off of one-half this amount, where the refusal of the insurer to pay the double indemnity benefit did not appear to be frivolous or unfounded. Progressive Life Ins. Co. v. Smith, 71 Ga. App. 157, 30 S.E.2d 411 (1944).
Finding evidence insufficient to show bad faith does not necessarily modify judgment.
- A finding by the appellate court that the evidence was insufficient to show bad faith is not necessarily a modification of the original judgment. National-Ben Franklin Fire Ins. Co. v. Darby, 48 Ga. App. 394, 172 S.E. 819 (1934).
Modifying award of fees set in notes modifies original judgment.
- Attorney's fees in notes are fees which arise by contract, and a modification of a judgment awarding such fees is a modification of the judgment on the original contract. National-Ben Franklin Fire Ins. Co. v. Darby, 48 Ga. App. 394, 172 S.E. 819 (1934).
Judgment on appeal reversed where not supported by record.
- Where the Court of Appeals ruled that there was support in the record for determining that the insurer has followed a strained interpretation of its contract by always paying only the lesser amount, but nothing in the record supports the ruling of the Court of Appeals that the insurance company has followed any particular practice with reference to the payment of the claims of other persons under the policy, the resulting judgment of the Court of Appeals as to penalties and attorney's fees will be reversed. Guarantee Trust Life Ins. Co. v. Davis, 244 Ga. 541, 261 S.E.2d 336 (1979).
Reversal on "bad faith" penalties and attorney's fees does not affect underlying award.
- When the only error in the case is the award of "bad faith" penalties and attorney's fees, the judgment will be affirmed with direction that the portion thereof awarding such penalties and attorney's fees be written off. Progressive Cas. Ins. Co. v. Avery, 165 Ga. App. 703, 302 S.E.2d 605 (1983).
RESEARCH REFERENCES
Am. Jur. 2d.
- 44 Am. Jur. 2d, Insurance, §§ 107, 108.
Actions Against Insurer for Bad Faith Failure to Settle Claim, 21 Am. Jur. Trials 229.
C.J.S.- 46A C.J.S., Insurance, §§ 2166 et seq., 2169 et seq.
ALR.
- Validity of statutory provision for attorneys' fees, 90 A.L.R. 530.
Remedy and measure of recovery where insurer breaches its contract to pay indemnity periodically, 99 A.L.R. 1171.
Validity, construction, and effect of statutory or policy provisions which give injured or damaged person right of action against insurer in respect of indemnity or liability insurance voluntarily carried, 106 A.L.R. 516.
What persons or corporations, contracts or policies, are within statutory provisions allowing recovery of attorney's fee penalty against insurance companies or against companies dealing in specified kinds of insurance, 126 A.L.R. 1439.
Refusal of automobile liability or indemnity insurer to assume defense of action against insured upon ground that claim upon which action is based is not within coverage, 133 A.L.R. 1516; 49 A.L.R.2d 694; 50 A.L.R.2d 458.
Effect of insurer's wrongful rejection of insured's claim under disability clause of life policy, 140 A.L.R. 781.
Compromise by insured as affecting right to recover against liability or indemnity insurer, either where claim exceeds limit of liability under policy, or where insurer denies liability on policy, refuses to defend, or otherwise delays taking action, 142 A.L.R. 809.
Necessity and sufficiency, or waiver, of demand as a condition of statutory liability of insurer for failure to pay delay in paying loss, 145 A.L.R. 343.
Liability of insurer based upon its act of withdrawal after assumption of defense, 167 A.L.R. 243.
Remedies of insured other than direct action on policy where fire or other property insurer refuses to comply with policy provisions for appointment of appraisers to determine amount of loss, 44 A.L.R.2d 850.
Consequences of liability insurer's refusal to assume defense of action against insured upon ground that claim upon which action is based is not within coverage of policy, 49 A.L.R.2d 694; 50 A.L.R.2d 458.
Insurer's liability under accident policy which terminated after accidental injury but prior to completion of medical treatment, hospitalization, and the like, 75 A.L.R.2d 876.
Liability insurer's liability for interest and costs on excess of judgment over policy limit, 76 A.L.R.2d 983.
Insurer's liability as affected by refusal of public authorities to permit reconstruction or repair after fire, 90 A.L.R.2d 790.
What constitutes "trial," "final trial," or "final hearing" under statute authorizing allowance of attorneys' fees as costs on such proceeding, 100 A.L.R.2d 397.
Beneficiary's ignorance of existence of life or accident policy as excusing failure to give notice, make proofs of loss, or bring action within time limited by policy or statute, 28 A.L.R.3d 292.
Insurer's failure to pay amount of admitted liability as precluding reliance on statute of limitations, 41 A.L.R.3d 1111.
Insurer's liability for consequential or punitive damages for wrongful delay or refusal to make payments due under contracts, 47 A.L.R.3d 314.
Amount of attorney's compensation, 57 A.L.R.3d 475; 57 A.L.R.3d 550; 57 A.L.R.3d 584; 58 A.L.R.3d 201; 58 A.L.R.3d 235; 58 A.L.R.3d 317; 17 A.L.R.5th 366; 23 A.L.R.5th 241.
Insured's payment of excess judgment, or portion thereof, as prerequisite of recovery against liability insurer for wrongful failure to settle claim against insured, 63 A.L.R.3d 627.
Right of injured person recovering excess judgment against insured to maintain action against liability insurer for wrongful failure to settle claim, 63 A.L.R.3d 677.
Construction and application of state statute or rule subjecting party making untrue allegations or denials to payment of costs or attorney's fees, 68 A.L.R.3d 209.
Validity of statute allowing attorney's fee to successful claimant but not to defendant, or vice-versa, 73 A.L.R.3d 515.
Recoverability of punitive damages in action by insured against liability insurer for failure to settle claim against insured, 85 A.L.R.3d 1211.
Insured's right to recover attorney's fees incurred in declaratory judgment action to determine existence of coverage under liability policy, 87 A.L.R.3d 429.
Allocation of defense costs between primary and excess insurance carriers, 19 A.L.R.4th 107.
Modern status of rules requiring liability insurer to show prejudice to escape liability because of insured's failure or delay in giving notice of accident or claim, or in forwarding suit papers, 32 A.L.R.4th 141.
What constitutes bad faith on part of insurer rendering it liable for statutory penalty imposed for bad faith in failure to pay, or delay in paying, insured's claim, 33 A.L.R.4th 579.
Excess carrier's right of action against primary carrier for improper or inadequate defense of claim, 49 A.L.R.4th 304.
Liability of independent or public insurance adjuster to insured for conduct in adjusting claim, 50 A.L.R.4th 900.
Duty of insurer to pay for independent counsel when conflict of interest exists between insured and insurer, 50 A.L.R.4th 932.
Credit life insurer's punitive damage liability for refusing payment, 55 A.L.R.4th 246.
Emotional or mental distress as element of damages for liability insurer's wrongful refusal to settle, 57 A.L.R.4th 801.
Liability insurance: third party's right of action for insurer's bad-faith tactics designed to delay payment of claim, 62 A.L.R.4th 1113.
Liability insurer's postloss conduct as waiver of, or estoppel to assert, "no-action" clause, 68 A.L.R.4th 389.
Computation of net "loss" for which fidelity insurer is liable, 5 A.L.R.5th 132.
Liability of insurer, or insurance agent or adjuster, for infliction of emotional distress, 6 A.L.R.5th 297.
Admissibility of polygraph or similar lie detector test results, or willingness to submit to test, on issues of coverage under insurance policy, or insurer's good-faith belief that claim was not covered, 7 A.L.R.5th 143.
Excessiveness or adequacy of attorneys' fees in matters involving real estate - modern cases, 10 A.L.R.5th 448.
What constitutes mental illness or disorder, insanity, or the like, within provision limiting or excluding coverage under health or disability policy, 19 A.L.R.5th 533.
Liability of insurer for prejudgment interest in excess of policy limits for covered loss, 23 A.L.R.5th 75.
What constitutes bad faith on part of insurer rendering it liable for statutory penalty imposed for bad faith in failure to pay, or delay in paying, insured's claim - Particular conduct of insurer, 115 A.L.R.5th 589.
What constitutes bad faith on part of insurer rendering it liable for statutory penalty imposed for bad faith in failure to pay, or delay in paying, insured's claim - Particular grounds for denial of claim: matters relating to policy, 116 A.L.R.5th 247.
Calculations of attorneys' fees under Federal Tort Claims Act - 28 USCS sec. 2678, 86 A.L.R. Fed. 866.
Pre-emption by Federal Longshore and Harbor Workers' Compensation Act of state law claims for bad-faith dealing by insurer or agent of insurer, 90 A.L.R. Fed. 723.
Construction and application of Longshore and Harbor Workers' Compensation Act (LHWCA) - Supreme Court cases, 72 A.L.R. Fed. 2d 1.
Federal Common Law and Preemption Under National Flood Insurance Act 42 U.S.C.A. §§ 4001 et seq., 36 A.L.R. Fed. 3d Art. 6.
Nature and Limitation of Insurance Coverage Under National Flood Insurance Act, 42 U.S.C.A. § 4013, 37 A.L.R. Fed. 3d Art. 5.
Employee as Entitled to Title VII Protections Despite Being Citizen of Foreign Country, 37 A.L.R. Fed. 3d Art. 8.