Canal Ins. Co. v. Savannah Bank & Trust Co.

Decision Date15 January 1987
Docket NumberNo. 73229,73229
Citation352 S.E.2d 835,181 Ga.App. 520
CourtGeorgia Court of Appeals

Harry W. Bassler, Atlanta, for appellant.

Roland B. Williams, W. Brooks Stillwell III, J. Micheal Hall, Savannah, for appellee.

CARLEY, Judge.

Appellee-plaintiff Savannah Bank and Trust Company (Bank) brought the instant action, alleging that it was both the loss payee and the assignee of a claim under an insurance policy issued to one of its debtors by appellant-defendant Canal Insurance Company (Canal). The Bank sought to recover for the loss resulting from the theft of two automobiles, plus interest and attorney fees. After hearing the evidence presented at a bench trial, the trial court made findings of fact and conclusions of law and entered judgment in favor of the Bank. Canal appeals from the judgment entered in favor of the Bank.

1. The parties stipulated that a policy of insurance was in effect on December 14, 1982. The trial court found that, on that date, the two automobiles involved in the suit were stolen from the Bank's assignor-debtor by persons unknown and that such theft was, under the clear language of the policy, a covered loss. This finding is enumerated as error.

Citing Executive Auto Leasing v. Guaranty Nat. Ins. Co., 170 Ga.App. 860, 318 S.E.2d 733 (1984), Canal urges that the only evidence adduced was that the cars had mysteriously disappeared or were missing and that such evidence was insufficient to prove a theft. However, there was testimony by the president of the Bank's assignor-debtor that the cars were taken at a particular time without his knowledge or consent. This "testimony was sufficient to make a prima facie case of loss by theft within the policy terms." Lewis v. American Rd. Ins. Co., 119 Ga.App. 507, 510(2a), 167 S.E.2d 729 (1969). See also Executive Auto Leasing v. Guaranty Nat. Ins. Co., supra 170 Ga.App. at 863, 318 S.E.2d 733; Sentry Ins. v. Henderson, 138 Ga.App. 495, 226 S.E.2d 759 (1976); Hanover Fire Ins. Co. v. Scroggs, 92 Ga.App. 548, 88 S.E.2d 703 (1955). The Bank's evidence having made a prima facie case that the cars were stolen, "the burden was then shifted to [Canal] to bring the case within any exception of the policy by reason of which liability may have been denied." Staten v. Gen. Exchange Ins. Corp., 38 Ga.App. 415, 416(2), 144 S.E. 53 (1928). Since Canal introduced no testimony or other evidence to carry this burden, the trial court's finding was not erroneous.

2. The trial court found that the only defenses advanced by Canal at trial were "allegations of rumors ... and non-material technicalities under the policy." Canal enumerates the trial court's finding in this regard as erroneous, first asserting that, under the evidence, proper notice of loss was never given in compliance with the requirements of the policy.

The policy specified that, in the event of loss, the named insured was to "give notice thereof as soon as practicable to the company or any of its authorized agents and also in the event of theft or larceny to the police...." The evidence was clearly sufficient to show full compliance with this requirement. However, the policy further provided that there would be "file[d] with the company, within 91 days after loss, [a] sworn proof of loss in such form and including such information as the company may reasonably require...." Canal urges there was no timely compliance with this requirement. "[A] mere failure to furnish [to the insurer] proper proofs of loss [within the period specified in the policy] will not work a forfeiture of the policy unless there is an express stipulation to that effect. [Cits.]" Progressive Mut. Ins. Co. v. Burrell Motors, 112 Ga.App. 88(1), 143 S.E.2d 757 (1965). See also Parris v. Great Central Ins. Co., 148 Ga.App 277(1), 251 S.E.2d 109 (1978). There was no such express stipulation in the instant policy. Moreover, Canal's own failure to furnish proof of loss forms in a timely manner after receiving written notice of the loss from both its own adjuster and the Bank's assignor-debtor would constitute a waiver of strict compliance with this requirement. See OCGA § 33-24-39; Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga.App. 697(2b), 172 S.E.2d 159 (1969). Once the proof of loss forms were finally provided by Canal on January 31, 1985, both the Bank and its assignor-debtor filed sworn proof of loss statements within 91 days.

Canal rejected the proof of loss submitted by the Bank's assignor-debtor and contends that it was justified in doing so because the addition thereon of the words "to the best of my personal knowledge" was an unacceptable "qualification" of the ostensibly sworn statement. However, the Bank's assignor-debtor was a corporation and the proof of loss form was signed by its secretary. The testimony of a corporate officer must be based on his own personal knowledge. See generally Lubbers v. Tharpe & Brooks, 160 Ga.App. 709, 711, 288 S.E.2d 54 (1981). The trial court thus correctly held that Canal's rejection of the proof of loss was without justification.

Canal's further contention that the Bank and its assignor-debtor failed to cooperate in the investigation and thus did not satisfy a prerequisite to recovery under the policy is not supported by the record. Accordingly, the trial court's ultimate conclusion that Canal's defenses related solely to "technical or inconsequential" noncompliance with the policy requirements was not erroneous. See H.Y. Akers & Sons v. St. Louis Fire, etc., Ins. Co., 120 Ga.App. 800, 802(1), 172 S.E.2d 355 (1969).

3. Canal contests as erroneous the finding of the trial court that the evidence established a loss of $15,600 and further urges error in the admission of hearsay evidence concerning "Blue Book" values to prove fair market value.

Two witnesses gave opinion testimony as to value. Neither based his opinion on "Blue Book" values, but each agreed that his personal evaluation fell within the range of "Blue Book" valuations. "Direct testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer in the article in question but may testify as to its value if he has had an opportunity for forming a correct opinion." OCGA § 24-9-66. Both witnesses were clearly qualified to form their own opinions and their further testimony regarding "Blue Book" value was not a ground for objection. Burch v. Lawrence, 150 Ga.App. 351(1), 258 S.E.2d 35 (1979). The evidence was sufficient to calculate the amount of damages and, the amount awarded was within the range of the evidence adduced. We find no error. Cf. B & L Svc. Co. v. Gerson, 167 Ga.App. 679(4), 307 S.E.2d 262 (1983); Smith v. Gen. Fin. Corp., 143 Ga.App. 390(1), 238 S.E.2d 694 (1977).

4. Canal contends that the Bank cannot recover because no valid assignment of the policy occurred. Canal relies upon the general policy provision that an assignment of interest would not bind it until its consent was endorsed thereon. "It is, however, a general proposition that ' "[a]ny provision of a policy made for the company's benefit may be waived by the company either expressly or impliedly by the company's action." [Cits.]' [Cit.] Provisions which require the consent of the insurer to an assignment of the policy are clearly for the insurer's benefit--such assignments change the risk which the insurer has assumed under the terms of the policy. [Cit.]" State Farm Fire, etc., Co. v. Mills Plumbing Co., 152 Ga.App. 531, 533(1), 263 S.E.2d 270 (1979). Canal's prolonged course of conduct in dealing with the Bank, both before and after it had been...

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