Boston-Old Colony Ins. Co. v. Warr

• Decision Date: 20 September 1972
• Docket Number: 2,No. 47057,3,Nos. 1,BOSTON-OLD,47057,s. 1
• Parties: COLONY INSURANCE COMPANY v. T. Cooper WARR, Jr
• Court: Georgia Court of Appeals

Page 624

193 S.E.2d 624

127 Ga.App. 364

BOSTON-OLD COLONY INSURANCE COMPANY v. T. Cooper WARR, Jr.

No. 47057.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Sept. 20, 1972.

Rehearing Denied Oct. 19, 1972.

Fulcher, Hagler, Harper & Reed, Gould B. Hagler, Augusta, for appellant.

Allgood & Childs, Thomas F. Allgood, Augusta, for appellee.

Syllabus Opinion by the Court

HALL, Presiding Judge.

In an action to collect on an automobile collision insurance policy, the defendant appeals from the award of interest, penalty and attorneys' fees.

The plaintiff had purchased a new 1969 Cadillac on June 30, 1969. It was damaged in a collision on August 12, 1969, at which time it had been driven 2,604 miles. He made a claim on his insurance carrier in October for the value of a new automobile. The defendant inspected the damaged car and tendered a draft for the estimated repair cost which was several thousand dollars less than the cost of replacement. The plaintiff refused the tender and brought this action for an amount which was the list price of a new 1970 Cadillac, minus the amount he had received for his damaged car, minus the $50 deductible of his policy. The jury returned a verdict for a sum close to the plaintiff's claim, plus interest from the date of the occurrence, a 12% penalty and $1,000 for attorneys' fees.

1. The defendant contends that the interest, if allowable at all, should only begin on the date of the verdict as the amount was not liquidated until then. However, when an insurance company admits liability in some amount, interest may be had on that amount from the date of the admission of liability. Fireman's Ins. Co. v. Oliver, 53 Ga.App. 638, 186 S.E. 706. Accordingly, the plaintiff here would be entitled to interest on the $2,208.10 tendered by the defendant, from November 10, 1969. That part of the judgment representing interest is affirmed with direction that all interest recovered in excess of the amount authorized above be written off.

2. The court erred in authorizing the jury to award a penalty and attorneys' fees for bad faith refusal to pay. The evidence on the extent of damages was conflicting and did not demand a finding for the plaintiff.

'It is elementary that, 'If the evidence is such that a finding in accordance with the contentions of the defendant would have been authorized, a finding of bad faith is not authorized. Royal Ins. Co. v. Cohen, 105 Ga.App. 746, 747, 125 S.E.2d 709.' St. Paul Fire, etc., Ins. Co. v. Postell, 113 Ga.App. 862, 863, 149 S.E.2d 864; American Cas. Co. v. Seckinger, 108 Ga.App. 262, 132 S.E.2d 794; Lincoln Life Ins. Co. of Georgia v. Anderson, 109 Ga.App. 238(3), 136 S.E.2d 1; U.S. Fidel., etc., Co. v. Biddy Lumber Co., 114 Ga.App. 358, 359, 151 S.E.2d 466; U.S. Fire Ins. Co. v. Tuck, 115 Ga.App. 562, 574, 155 S.E.2d 431 . . . If there is any reasonable ground for contesting the claim there is no bad faith and it is error to award penalty and attorney's fees. Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 316, 127 S.E.2d 454; Belch v. Gulf Life Ins. Co., 219 Ga. 823, 828, 136 S.E.2d 351.' Home Indemnity Co. v. Godley, 122 Ga.App. 356, 363, 177 S.E.2d 105, 111, certiorari denied 122 Ga.App. 905.

We therefore direct that the penalty and attorneys' fees be written off.

Judgment affirmed with direction.

BELL, C.J., EBERHARDT, P.J., and DEEN, CLARK and STOLZ, JJ., concur.

PANNELL, J., concurs in the judgment.

QUILLIAN and EVANS, JJ., dissent.

QUILLIAN, Judge (dissenting).

There was evidence that the plaintiff received an offer in the amount of $2208.10 from the appellant on or about December 3, 1969, in settlement of the damage to his automobile. The evidence further shows that he contacted the appellant on December 3, 1969, and rejected the offer of settlement. The claims adjuster for the appellant testified that the amount offered the plaintiff was approximately $400 or $500 less than the amount to which the plaintiff was entitled. She stated that the reason for the error was that she did not know that the plaintiff was entitled to depreciation of the automobile.

Thus, there would be a question for the jury whether the offer of payment by the appellant was so inadequate as to amount to an absolute...