Halcome v. Cincinnati Ins. Co., 42249

• Decision Date: 05 September 1985
• Docket Number: No. 42249,42249
• Citation: 334 S.E.2d 155,254 Ga. 742
• Parties: HALCOME et al. v. CINCINNATI INSURANCE COMPANY.
• Court: Georgia Supreme Court

Page 155

334 S.E.2d 155

254 Ga. 742

HALCOME et al. v. CINCINNATI INSURANCE COMPANY.

No. 42249.

Supreme Court of Georgia.

Sept. 5, 1985.

Rehearing Denied Oct. 1, 1985.

[254 Ga. 745] Stephen E. Shepard, Augusta, for Patricia B. Halcome et al.

Raymond G. Chadwick, Jr., Ted H. Clarkson, Knox & Zacks, P.C., Augusta, for Cincinnati Ins. Co.

GREGORY, Justice.

The United States Court of Appeals for the Eleventh Circuit has certified the following question to this court:

STATEMENT OF THE FACTS

"On Friday evening, February 25, 1983, Patricia and Charles Halcome, along with their son and a friend of their son, left their home in Augusta, Georgia, to visit Walt Disney World in Florida. The Halcomes travelled by car. Their stated intention was to arrive back in Augusta in time for their son and his friend to attend school Monday morning. The total driving time for the round trip is approximately eighteen hours.

"The Halcomes testified that on Sunday, February 27, 1983, they packed their automobile at the Holiday Inn where they were staying and, at eleven o'clock a.m., they left the car in the parking lot of the motel. They testified that they were going to visit the Epcot Center. They further testified that when they returned at approximately 9:30 p.m., their car was missing.

"Subsequently, the Halcomes filed insurance claims with The Cincinnati Insurance Company (Cincinnati) for a total property loss of $128,495.66, the major portion of which was for jewelry allegedly contained in the automobile.

"Cincinnati claims that during the investigation of the Halcomes' claim, they learned the following which, in addition to the facts surrounding the alleged theft, led them to be suspicious of the veracity of the claim:

"(1) The Halcomes previously had filed an insurance claim with another carrier for a burglary loss from their residence in 1980. They claimed $136,000.00, the bulk of which was for jewelry.

"(2) Charles Halcome previously had submitted an insurance claim with another carrier for fire loss in 1978. This claim was filed shortly after he had increased the limits of his insurance on the contents of his home. Mr. Halcome failed to disclose this claim in the sworn statements he submitted to Cincinnati.

"(3) In December, 1982, Patricia Halcome increased the coverage on her jewelry with Cincinnati from $82,085 to $120,785.

"(4) In March, 1980, Charles Halcome had been sued for delinquent rental payments.

"(5) In February, 1982, Patricia Halcome, as representative of her son, had filed a suit against Sizemore Security and The Kroger Company in the amount of $250,000. A jury verdict was entered in favor of defendants.

"(6) At the time of the alleged theft, neither Charles nor Patricia Halcome was employed. Mr. Halcome had been disabled since 1976 due to a heart condition and was receiving disability payments from undisclosed sources.

"(7) The Halcomes' insurance policy contained the following provisions:

"SECTION I-CONDITIONS:

2. Your Duties After Loss. In case of loss to insured property, you agree to the following ...

d. as often as we reasonably require:

... (2) provide us with records and documents we request, permit us to make copies; and (3) submit to examination under oath and subscribe the same.

"SECTION I AND II-CONDITIONS:

3. Concealment or Fraud. We do not provide coverage for any insured who has intentionally concealed or misrepresented any material fact or circumstance relating to this insurance.

8. Insured's Duties in the Event of Loss-Part III:

... (b) File with the company, within ninety-one (91) days after loss, his sworn proof of loss in such form and including such information as the company may reasonably require and shall, upon the company's request, exhibit the damaged property and submit to examination under oath.

"Pursuant to the above quoted provisions, a representative of Cincinnati requested that the Halcomes submit to an examination under oath. The Halcomes answered numerous questions regarding their activities at the time of the loss, and they produced appraisals estimating the value of the stolen jewelry and the comparable data for an automobile similar to their 1981 Cadillac. The Halcomes, however, refused to answer questions or otherwise to supply information with regard to: (1) their income and...