Fidelity & Cas. Ins. Co. of New York v. Massey
| Decision Date | 03 May 1982 |
| Docket Number | No. 63807,63807 |
| Citation | 291 S.E.2d 97,162 Ga.App. 249 |
| Court | Georgia Court of Appeals |
| Parties | FIDELITY & CASUALTY INSURANCE COMPANY OF NEW YORK v. MASSEY, et al. |
David B. Higdon, Joseph H. Davis, John B. Harris, III, Macon, for appellant.
S. Phillip Brown, William M. Flatau, Bejamin M. Garland, Charles M. Stapleton, Macon, for appellee.
This is a suit on a policy of insurance covering a house which was damaged by vandalism.
Turea Massey's husband died leaving their house in the country in trust with Mrs. Massey beneficiary for life and their children as remaindermen. The Georgia Bank and Trust Company (bank) and Mrs. Massey were co-trustees, responsible for managing the corpus of the trust. Mrs. Massey continued to live in the house for some years until she moved into a rented apartment in town. The trustees decided to rent the house and Fickling and Walker, Inc. (F & W), a real estate agency, was engaged to rent the property. Tenants were obtained but in October, 1977 they vacated the house. While the house was vacant prospective tenants sent to see the property in late October, 1977 discovered that the house had been badly damaged by vandals.
Mrs. Massey had a hazard insurance policy on the house in her own name from appellant Fidelity & Casualty Insurance Company (insurer). There was no other insurance and Mrs. Massey had notified the bank that the house was covered by insurance. Because Mrs. Massey was ill her family, with the bank's concurrence, decided not to inform her of the damage to the house. The policy required that the insurer be notified of the loss within 60 days of its occurrence. The insurer did not receive notice of the loss until January, 1978, more than 60 days after the loss, and therefore refused payment of a claim against the policy.
About two years after the loss, Mrs. Massey commenced this action, individually and as trustee, against the bank and F & W, alleging that they were negligent in failing to file proof of loss within the 60 days required by the insurer, resulting in the insurer's denial of liability for the loss. The bank's and F & W's answers contended that Mrs. Massey could not sue them until she pursued her claim against the insurer and pointed out that she had a valid claim because she was not competent during the notice of loss and commencement of suit time provisions of the policy. Mrs. Massey thereupon added the insurer as a party defendant, alleged she was incompetent until just prior to commencing suit, and demanded payment of her claim. The trial court by pretrial order bifurcated the case for trial, with Mrs. Massey to proceed against the insurer only, and precluding the insurer from exploring any alleged negligent acts of the bank or F & W. The only issues to be tried were the competency of Mrs. Massey and the amount of damages.
A jury trial was had in which the insurer stipulated the incompetency of Mrs. Massey during all relevant times set forth in the policy. After the evidence was closed, the insurer moved for a directed verdict based on a failure of the evidence to show the damage to the house had occurred within 30 days after the house became vacant as required by the policy. The motion was denied. The jury returned a verdict for Mrs. Massey for $12,590, upon which judgment was entered and from which this...
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