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

• Decision Date: 10 April 1980
• Docket Number: No. 59158,59158
• Citation: 153 Ga.App. 623,266 S.E.2d 299
• Parties: GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. NELSON.
• Court: Georgia Court of Appeals

Page 299

266 S.E.2d 299

153 Ga.App. 623

GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. NELSON.

No. 59158.

Court of Appeals of Georgia.

Argued Jan. 16, 1980.

Decided Feb. 27, 1980.

Certiorari Denied April 10, 1980.

Denmark Groover, Jr., Macon, for appellant.

Neal D. McKenney, Jane M. Jordan, Macon, for appellee.

McMURRAY, Presiding Judge.

On November 3, 1977, Bill Chambers, d/b/a Chambers Dairy Company, was insured by Georgia Farm Bureau Mutual Insurance Company under one of its policies which contains coverage of a tractor-trailer, a type of motor vehicle, scheduled on that policy. The policy contains coverage pursuant to the Georgia Motor Vehicle Accident Reparations Act. The Georgia Farm Bureau Mutual Insurance Company is a mutual insurance corporation of the State of Georgia having a principal office and place of business in Bibb County, Georgia.

On November 3, 1977, James R. Nelson was engaged by the insured, Bill Chambers, to take a 1971 GMC tractor, owned by the said Chambers, and a 1961 flat bed trailer, owned by the said Chambers, to a business in Milledgeville, Georgia, for the purpose of getting a load of lumber, to be hauled by Nelson to a location in North Carolina on November 4, 1977. The tractor-trailer proceeded to Milledgeville, was loaded and returned to the farm of Chambers Dairy Company where Nelson disconnected the tractor from the flat bed load of lumber. Nelson was in the process of reconnecting the trailer to the tractor when a portion of the load of lumber shifted and fell on him and killed him. This tractor-trailer was scheduled on the policy of insurance and the policy was in full force and effect at the time of the occurrence. There were no eyewitnesses at the time of the occurrence but at that time the trailer was not attached to the tractor. The front end of the trailer, when not connected to the tractor, is held up by two dollies and after the occurrence it was discovered that one of the dollies which held up the trailer had collapsed and there was a hydraulic jack near the trailer where the load of lumber had fallen on the deceased. The widow made demand upon the insurer for payment under its Georgia Motor Vehicle Accident Reparations Act clauses in the insurance policy (no-fault), but the insurer has refused to make any payment.

Mrs. James R. Nelson, alleging that her husband was killed in the act of connecting one of the insured's tractors to one of the insured's trailers, which trailer was loaded with lumber for the purpose of transporting same to North Carolina, and that her husband was killed in attempting to engage the trailer to the fifth wheel of the tractor, the dolly having collapsed on the trailer, and it was necessary to jack up the front end of the trailer to engage it with the tractor, sued Georgia Farm Bureau Mutual Insurance Company for sums due under the Georgia Motor Vehicle Accident Reparations Act clauses of the policy, that is, for $2,320 as her husband's funeral expenses and for other compensation due resulting from the injuries causing his death under the policy without regard to fault, in the aggregate sum of $20,000. Plaintiff also contends that proof of loss of income and funeral expenses was sent to defendant and more than 30 days has elapsed although demand was made upon the defendant. Plaintiff seeks the penalty and reasonable attorney fees as a result of defendant's bad faith in refusing to pay under the policy.

The defendant answered, admitting jurisdiction and coverage of the tractor-trailer involved to the employer Bill Chambers, as principal insured. It denied the claim otherwise in its entirety contending that while there was coverage if the trailer was connected with the tractor but that at a time when it was not being drawn by the tractor the decedent was performing some operation of the trailer, the exact nature of which is not known, although it was advised that he was attempting to jack the trailer up. It thus contends there was no coverage when the lumber apparently fell on the decedent, who was on the ground, and which killed him. It admitted, however, that the personal injury protection and the additional personal injury protection clauses of the policy did provide both the statutory minimum coverage plus an additional aggregate of $5,000 optional coverage. It further contends that a trailer is included in the definition of a motor vehicle only when the same is "drawn by or attached to such a vehicle," and since decedent's death occurred when the trailer was neither being drawn by nor attached to the motor vehicle there was no coverage under the policy, hence the defendant is not indebted to the plaintiff in any sum. Defendant further defended by showing the coverage under the policy, if there was coverage, which it denied, was $1,500 funeral expenses under its basic protection and "up to a maximum of an additional $2,000" under the optional coverage; and during plaintiff's widowhood, payment of 85% of the husband's weekly earnings up to a maximum benefit of $200 per week with "an aggregate loss of earnings benefit of $1,000.00," under the basic protection clause and "up to a maximum total of such benefits of $5,000, less any amount applied for funeral expenses above and beyond the basic protection" as to the additional optional coverage. It further defended by contending "it would not be indebted to the Plaintiff for any sum as penalty or attorney's fees for the reason that: (a) proper proof of loss, as required by the statute and the policy, have not been provided; and (b) even had proper proof been furnished, Defendant's failure or refusal to pay was in good faith."

Defendant also defended on the ground that payments of survivor's benefits were to be paid weekly. Hence, plaintiff would only be entitled to funeral benefits covered by the policy plus the weekly benefits up to the time of trial and that "it will make future payments in accordance with the policy and the statute," if it be finally determined to be indebted for weekly survivor's benefits.

The parties entered into a stipulation in general agreeing to the above set forth facts as being correct and setting forth in the stipulation that a copy of the policy of insurance was attached. The case was tried before the court without a jury. A finding of facts was entered in accordance with the stipulation that the decedent was covered by the policy, was employed at the time of his death by the principal insured at a weekly wage of $200 per week, decedent was plaintiff's husband at the time of his death and she is entitled to the proceeds of the survivor's loss provision in said policy issued by the defendant. The court further found that plaintiff's husband was using the vehicle insured by the defendant "for the purpose for which it was intended, and that he was in the process of reconnecting the trailer to the tractor when a portion of the lumber shifted and fell on him, resulting in his death." The court then found that the decedent's death arose out of the operation, maintenance and use of the insured's motor vehicle which was covered by defendant's insurance policy. The court also found that the defendant had notice (by reason that the insurance company representative investigated the same as early as November 11, 1977, and learned there were no eyewitnesses at the time of the occurrence) and that "a demand was made upon defendant by letter dated July 14, 1978" (attached to the stipulation). It then further found that the "defendant failed to carry the burden of showing its good faith in refusal of payment." The court then determined that as a result of its failure to pay, plaintiff was entitled to 85% of the deceased's weekly wages ($200), that is, $170 per week beginning November 3, 1977, and that the number of weeks having elapsed to cover the maximum amount provided in said policy, that is, the sum of $10,000. As a penalty, 25% of that amount was also assessed, or a total of $12,500 awarded. As the parties had stipulated that if the defendant was found to have acted in bad faith, $4,000 would be a reasonable amount for attorney fees, this amount was likewise awarded. A total judgment of $16,500 was awarded, and defendant appeals, contending that the judgment in favor of plaintiff is contrary to the terms of the insurance policy and the no-fault statute. Defendant also enumerates as error that a judgment of more than $7,500 in personal injury protection benefits should not have been awarded, and the finding of damages and attorney fees. Held :

1. The Georgia Motor Vehicle Accident Reparations Act, Code Ann. § 56-3402b (Ga.L.1974, pp. 113, 114; 1975, pp. 1202, 1203), defines a motor vehicle to be not only a vehicle having more than three load-bearing wheels and required to be registered under the laws of this state relating to motor vehicles designed primarily for operation upon the public streets,...