Atlanta Intern. Properties, Inc. v. Georgia Underwriting Ass'n, 57495
| Decision Date | 24 April 1979 |
| Docket Number | No. 57495,57495 |
| Citation | 256 S.E.2d 472,149 Ga.App. 701 |
| Parties | ATLANTA INTERNATIONAL PROPERTIES, INC. v. GEORGIA UNDERWRITING ASSOCIATION. |
| Court | Georgia Court of Appeals |
Kirby G. Bailey, Decatur, for appellant.
Swift, Currie, McGhee & Hiers, John R. Gaughen, Atlanta, for appellee.
In March, 1976, the appellant in writing requested of appellee insurance coverage for fire, extended coverage, vandalism and malicious mischief (designated on the application as "Fire, E.C. & V&MM") on each of 39 pieces of property and was issued 39 policies. Stated on the face of each was: "Insurance is provided against only those perils and for only those coverages indicated by a premium charge." Below this appears the following:
Amount Premium Perils insured against &
coverages provided
$6,000 $ 28 Fire and lightning
$ 6 Extended Coverage and *
Vandalism and malicious mischief
Totals $ 35 Minimum Premium
In December, 1976, and January, 1977, the properties involved suffered from vandalism and/or malicious mischief. An officer of appellant examined his policies and concluded there was no coverage. He did not mention this to his insurance broker, however, until the end of the following August, and was then informed that there was indeed coverage in accordance with the original insurance applications. Claims were then filed. The insurer denied liability because of failure to comply with the policy requirement that "the insured shall give immediate written notice to this Company of any loss." The policy further specified that no action for recovery of any claim is sustainable unless all policy requirements have been complied with.
Upon suit being brought and on the basis of the facts set out above the insurer moved for and was granted summary judgment. This appeal followed.
1. It is not contested that failure to comply with notice of loss provisions will in the absence of waiver or estoppel or other facts constituting a justification to the insured or making it unreasonable to demand full compliance, be a bar to an action on the policy where such provision is made a condition precedent by the terms of the contract. Bituminous Cas. Corp. v. J. B. Forrest etc., 132 Ga.App. 714(3), 209 S.E.2d 6 (1947); Wolverine Ins. Co. v. Sorrough, 122 Ga.App. 556, 177 S.E.2d 819 (1970); Edwards v. Fidelity etc., Co., 129 Ga.App. 306, 199 S.E.2d 570 (1973); Allstate Ins. Co. v. Edwards, 237 F.Supp. 195 (1964). There appears to be no onus on the insurer to prove its defenses have been prejudiced by the...
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