Dixieland Truck Brokers, Inc. v. International Indem. Co.
| Decision Date | 01 September 1993 |
| Docket Number | No. A93A1547,A93A1547 |
| Parties | DIXIELAND TRUCK BROKERS, INC. v. INTERNATIONAL INDEMNITY COMPANY. |
| Court | Georgia Court of Appeals |
Simpson & Gray, Joseph B. Gray, Jr., Elizabeth B. Gibbs, Tifton, for appellant.
Clark & Mascaro, Mike A. Aziz, Atlanta, for appellee.
This is an appeal from a grant of summary judgment to plaintiff International Indemnity Company, in its suit against Dixieland Truck Brokers, Inc., for insurance premiums allegedly owed. The trial court awarded International $73,016 principal, $25,566.71 interest, and 12 percent post-judgment interest. Apparently, International was assigned by the Automobile Insurance Assigned Risk Pool to issue automobile coverage for Dixieland beginning in September 1989. This suit was filed in December 1990.
Attached to the original complaint is a June 22, 1990, letter from an insurance agent to International, stating that Mr. Hollowell, the owner of Dixieland, "disputes this bill." The agent's letter gave reasons for Hollowell's repudiation of "this bill," to-wit, that International had not filed government-required documents, that "the Assigned Risk Department stated that there had not been any rate increase." The agent also stated that Dixieland had secured coverage from another carrier. Also attached to the complaint is a June 25, 1990 reply from International, asserting that indeed Dixieland owes the premium, and that Dixieland's coverage commenced September 1, 1989. There is no "bill" or other original statement of account in the record.
Dixieland denied the material allegations and filed interrogatories to discover all motor carrier filings relating to the policies; the reasons for International's failure to make such filings; the specific basis on which International calculated any debt; a list of all documents on which International relied; and other specific material information supporting International's claim.
Instead of answering those interrogatories, International hired new counsel and filed a motion for summary judgment. The motion asserts: "The defense is totally and completely overcome by the Affidavit of Benny Byrd, Jr., which sets forth the transactions with regard to this case and completely accounts for said indebtedness." This affidavit of Benny Byrd states he is vice president of International with supervision over its books and records, and that his review of those records "reveals an account balance due [from Dixieland] in the principal amount of $73,016.00." Attached to the affidavit is only a short writing on International's letterhead, stating: The writing then names three policies and states a premium amount due for each.
Dixieland responded with an affidavit of its owner, Mr. Hollowell, denying that Dixieland owed International any premiums and stating that part of the premiums Dixieland had paid were assessed for regulatory filings which International never made; that International had not applied certain credits; and that when the insurance contract was entered, "I was assured that there would be no increase in premiums over [previous coverage]," but International's premium was "an increase of approximately 300 percent."
Dixieland also presented the affidavit of the insurance agent, averring that he procured insurance for Dixieland, and in his opinion, International's demand for "coverage allegedly provided" during portions of 1989-91 was "excessive for the coverage provided [and has] been improperly calculated."
Dixieland moved to strike the affidavit of International's vice president, Benny Byrd, as mere conclusion unsupported by sworn or certified copies of account records as required by OCGA §§ 9-11-56(e) and 24-3-14. The trial court did later strike Benny Byrd's affidavit, but not before Benny Byrd filed another affidavit stating: "I have reviewed the affidavit of [Dixieland's owner] and find that it is flawed and incorrect." Benny Byrd stated that the reason no regulatory filings were made by International was that Dixieland refused to pay the premiums, which was fully explained to Hollowell in a March 1989 letter, attached; that he never told Dixieland there would be no increase in premiums and he did not know who did; that Hollowell had not specified any credits; and that the agent's affidavit had been completely refuted by the aforesaid and by the June 25, 1990 letter to the agent "in which the details of these policies were explained." Held:
1. International's motion for summary judgment was wholly unjustified and unsupported. The only evidence of any debt is International's ipse dixit. There is no contract...
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