Georgia Farm Bureau Mut. Ins. Co. v. Fowler

• Decision Date: 17 February 1986
• Docket Number: No. 71281,71281
• Citation: 341 S.E.2d 491,177 Ga.App. 834
• Parties: GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY et al. v. FOWLER.
• Court: Georgia Court of Appeals

Page 491

341 S.E.2d 491

177 Ga.App. 834

GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY et al. v. FOWLER.

No. 71281.

Court of Appeals of Georgia.

Feb. 17, 1986.

Duross Fitzpatrick, Cochran, for appellants.

James G. Maddox, Jeffersonville, for appellee.

SOGNIER, Judge.

Tom Fowler brought suit against Georgia Farm Bureau Mutual Insurance Company (GFB) seeking payment for property damage allegedly covered under a contract of homeowners' insurance. GFB's motion to dismiss for failure to state a cause of action was denied by the trial court and we granted GFB's interlocutory appeal.

The trial court properly denied appellant's motion to dismiss. " ' "A motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient." [Cit.]' [Cit.]" Oliver v. Irvin, 230 Ga. 248, 249(1), 196 S.E.2d 429 (1973). See also Snooty Fox v. First American Invest. Corp., 144 Ga.App. 264, 265, 241 S.E.2d 47 (1977). The basis for appellant's motion to dismiss was its contention that appellee's failure to file suit against it within 12 months of the date of the loss precluded appellee's assertion of this claim. Although this court has upheld the validity of contractual periods of limitation in insurance policies when not in contravention of any statute or public policy, see Fidelity etc., Co. v. Sun Life Ins. Co., 174 Ga.App. 258, 261(3), 329 S.E.2d 517 (1985), we have also determined that an insurer has waived the contractual limitation under a variety of factual situations. See, e.g., Ga. Farm etc., Ins. Co. v. Mikell, 126 Ga.App. 640, 642(2), 191 S.E.2d 557 (1972); Laughinghouse v. First of Ga. Ins. Co., 123 Ga.App. 189, 191(1), 179 S.E.2d 675 (1971). We note, however, that the typical case concerning contractual limitations or the waiver thereof appears before this court at a procedural stage where all possible factual issues have been put to rest. See Fidelity etc., Co., supra (motion for summary judgment); Mikell, supra (appeal from jury verdict); Laughinghouse, supra (motion for directed verdict). " 'Under the CPA, a pleading should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' [Cit.]" Leitzke v. Leitzke, 239 Ga. 17, 19(2), 235 S.E.2d 500 (1977). Although appellee's complaint does not allege appellant engaged in activities constituting a...