Eberhardt v. Georgia Farm Bureau Mut. Ins. Co., A96A1345
| Decision Date | 06 November 1996 |
| Docket Number | No. A96A1345,A96A1345 |
| Citation | 223 Ga.App. 478,477 S.E.2d 907 |
| Parties | , 96 FCDR 3999 EBERHARDT et al. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY. |
| Court | Georgia Court of Appeals |
Stewart, Melvin & Frost, J. Douglas Stewart, Gainesville, for appellants.
Carey, Jarrard & Walker, Christopher J. Walker, III, Gainesville, for appellee.
Plaintiffs Myron Eberhardt and Jane Eberhardt filed an action against defendant Georgia Farm Bureau Mutual Insurance Company to recover sums allegedly due as the proceeds of an insurance policy covering certain real property which was damaged by a tornado. Plaintiffs filed this direct appeal from a judgment in their favor in the amount of $5,000. Held:
1. These circumstances create a first impression that we lack jurisdiction to consider this appeal due to the failure to follow the procedure set forth by OCGA § 5-6-35(b). We would generally expect the discretionary appeal procedure to be applicable since the amount of the judgment seems to place this case in the category identified by OCGA § 5-6-35(a)(6), that is, an action for damages in which the judgment is $10,000 or less. Nonetheless, under the following analysis, we have concluded that OCGA § 5-6-35 is inapplicable and that the direct appeal is proper under the circumstances of the case sub judice.
Upon consideration of defendant's motion for summary judgment the contested issues in the case were resolved in favor of defendant and against plaintiffs. The superior court then concluded that the uncontroverted amount of damages in the case was $40,888.96, an amount well in excess of the threshold set out in OCGA § 5-6-35(a)(6). Nonetheless, defendant was credited with a set-off to the judgment based upon prior payments by defendant to plaintiffs, resulting in the final award of $5,000.
In the tort case of Bales v. Shelton, 260 Ga. 335, 391 S.E.2d 394, the Supreme Court of Georgia held that for the purpose of determining whether a judgment falls within the range defined in OCGA § 5-6-35(a)(6), we must look to the amount of damages involved in the case rather than to the remainder left after the amount of damages is reduced by a set-off such as a prior payment. While the present case involves a contract claim, we see no reason to avoid applying here the reasoning expressed in Bales.
2. The primary issue presented by plaintiffs on appeal is whether an appraisal clause in the insurance policy issued by defendant was enforceable. This clause of the policy provided a procedure for determining the amount of plaintiffs' loss. Defendant invoked the appraisal clause, and each side...
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