Erber v. Insurance Co. of North America
| Citation | 134 Ga.App. 632,215 S.E.2d 528 |
| Decision Date | 24 April 1975 |
| Docket Number | No. 1,No. 50044,50044,1 |
| Parties | Leo ERBER v. INSURANCE COMPANY OF NORTH AMERICA |
| Court | Georgia Court of Appeals |
Daniel C. B. Levy, Atlanta, for appellant.
Long, Weinberg, Ansley & Wheeler, J. Kenneth Moorman, Edward C. Stone, Atlanta, for appellee.
Syllabus Opinion by the Court
Plaintiff sued for medical payments under an automobile insurance policy. Defendant denied liability for failure of the plaintiff to comply with the requirement of the policy that written proof of the claim should be given as soon 'as practicable.' Defendant's motion for summary judgment was granted.
There is no dispute that plaintiff was involved in a collision on January 26, 1971. On December 22, 1972 (22 months after the collision) defendant received plaintiff's written notice of claim for medical payment under the policy. The defendant by its evidence showed that it had received no other notice of any kind of the accident. Plaintiff's wife in an affidavit stated that she felt 'sure' that when the collision occurred 'I must have called and reported the matter' to plaintiff's insurance agent by telephone, 'but in view of the length of time that has passed since the collision . . ., it is difficult for me to be positive as to whether I called the agency on this particular incident.' Plaintiff in his affidavit set forth reasons why he did not submit an earlier report of his injuries to the defendant. Plaintiff testified by deposition that he, at some unspecified time, reported to his insurance company that his car was damaged in an accident. Held:
1. The affidavit of plaintiff's wife is insufficient to raise any jury question as to whether oral notice of the accident was given or that there was a waiver of the written notice requirement of the policy. The statement of the wife has no probative value. Stating that she felt 'sure' she made the report is a mere conclusion or opinion and not admissible in evidence. Aldridge v. Dixie Fire etc., Ins. Co., 223 Ga. 130, 132, 153 S.E.2d 723. Nor does the testimony of plaintiff that he had reported that his car was damaged in an accident raise a material question of fact as to whether notice was given of his claim for medical payments under the policy.
2. Generally, the time limitations in an insurance policy requiring a written report of a claim, the diligence of the beneficiary in giving notice and the sufficiency of an offered excuse in making a delayed...
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...714, 717, 209 S.E.2d 6, 9. for summary judgment, the court may rule on the question as a matter of law. See Erber v. Ins. Co. of North America, 134 Ga.App. 632(2), 215 S.E.2d 528; Edwards v. Fidelity Etc. Co. of N.Y., 129 Ga.App. 306(1), 199 S.E.2d 570. In the instant case the uncontradicte......
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