Hoffman v. Insurance Co. of North America
| Decision Date | 17 May 1978 |
| Docket Number | No. 33371,33371 |
| Citation | 241 Ga. 328,245 S.E.2d 287 |
| Parties | HOFFMAN et al. v. INSURANCE COMPANY OF NORTH AMERICA et al. |
| Court | Georgia Supreme Court |
Phillips, Hart & Mozley, Donald R. Andersen, J. Arthur Mozley, Atlanta, for appellants.
Long, Weinberg, Ansley & Wheeler, Charles Goetz, Hunter S. Allen, Jr., Robert G. Tanner, T. M. Smith, Jr., Atlanta, for appellees.
We granted certiorari in Hoffman v. Ins. Co. of N. A., 144 Ga.App. 420, 241 S.E.2d 303 (1977), wherein the Court of Appeals held that the statute of limitation in a suit by an insured against its agent, for negligent breach of the agent's duty to the insured to obtain adequate insurance coverage, begins to run on the date the agent breaches its duty rather than on the date the resulting damage occurs. The Court of Appeals reached this decision by analogizing to the rule in malpractice cases against attorneys that the claim accrues and the statute begins to run from the date of the breach of the duty and not from the time when the extent of the resulting injury is ascertained. Gould v. Palmer & Read, 96 Ga. 798, 22 S.E. 583 (1895).
For reasons which follow, we have determined that this decision of the Court of Appeals rests on a faulty premise. That is, for the purposes of ascertaining when the statute of limitation begins to run, a malpractice suit against an attorney and a suit against an insurance agent for negligently breaching his duty to his principal, the insured, by failing to obtain adequate insurance coverage are not analogous.
The statute of limitation begins to run on any given claim on the date the claim accrues in other words, on the date that suit on the claim can first be brought. "When the question is raised as to whether an action is barred by a statute of limitations, the true test to determine when the cause of action accrued is 'to ascertain the time when the plaintiff could first have maintained his action to a successful result.' " Mobley v. Murray County, 178 Ga. 388(1), 173 S.E. 680 (1934).
The statute of limitation in malpractice suits against attorneys begins to run from the date the attorney breached the duty owed to the client, because the client can bring suit immediately upon the occurrence of this conduct giving rise to the action without waiting until the extent of the resulting injury is ascertained. Gould v. Palmer & Read, supra. This is the reason why the statute of limitation in such a case begins to run from the date of the breach of duty rather than from the date actual damages are sustained by the client. Gould v. Palmer & Read, supra.
We are called upon in this case to determine when the statute of limitation begins to run in an action by an insured against its agent for breach of duty by the agent in failing to obtain adequate insurance coverage. In answering this question, we must analyze the nature of such an action. An action of this nature, which is based on the agent's negligence, sounds in tort; and if the agency is contractual as well as consensual, the action also sounds in contract. Restatement 2d, Agency, § 401, Comment a, p. 237 (1958). "This choice of remedy may be important for procedural reasons, or because of a difference between the statute of limitations for torts and for contracts." Id., p. 238. The action by the principal against the insurance agent in contract is based solely on the breach of duty and may, therefore, be maintained in the absence of actual damages for nominal damages only. Restatement 2d, Agency, § 401, Comment b (1958). The action in tort for negligence depends upon the presence of damages and, therefore, may not be maintained until the principal suffers a loss. Id. It is fundamental that before the plaintiff in a negligence action may recover he must show, in addition to negligence on the part of the defendant, damages and proximate cause. Albright v. Powell, 113 Ga.App. 363, 368(2), 147 S.E.2d 848 (1966). See also Owens v. Nichols, 139 Ga. 475(1), 77 S.E. 635 (1913).
In an earlier case involving these very parties, Hoffman v. Ins. Co. of N. A., 130 Ga.App. 777, 204 S.E.2d 520 (1974), the Court of...
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Stafford-Fox v. Jenkins, No. A06A1090.
...have successfully maintained the action. (Citations omitted.) Jankowski, 246 Ga. at 805, 273 S.E.2d 16; Hoffman v. Ins. Co. of North America, 241 Ga. 328, 329, 245 S.E.2d 287 (1978). It follows that the date on which Stafford-Fox's medical malpractice action accrued and she could have succe......
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Hamilton v. Powell, Goldstein, Frazer & Murphy, 65663
...at bar, we conclude that appellant did set forth a cause of action sounding in tort as well as in contract. Cf. Hoffman v. Ins. Co. of N.A., 241 Ga. 328, 245 S.E.2d 287 (1978), revg. 144 Ga.App. 420, 241 S.E.2d 303 (1977); Mattair v. St. Joseph's Hospital, 141 Ga.App. 597, 234 S.E.2d 537, a......
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Schroeder v. Dekalb Cnty.
...Generally, "the date the claim accrues [is] the date that suit on the claim can first be brought." Hoffman v. Ins. Co. of North America , 241 Ga. 328, 329, 245 S.E.2d 287 (1978). Specifically, a negligence cause of action "accrues ... when there is a negligent act coupled with a proximately......
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...for breach of duty is that the alleged negligence be a proximate cause of the plaintiff's injury. See Hoffman v. Insurance Co. of North America, 241 Ga. 328, 329–330, 245 S.E.2d 287 (1978). The trial court held that proximate cause could not be established because Textile's act of signing t......
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...(rejecting the continuous representation rule). 18. Id. at 793 (Benham, J., dissenting). 19. See id. at 794. 20. Id. 21. See id. 22. 241 Ga. 328, 245 S.E.2d 287 (1978). 23. Id. at 330 (emphasis added). 24. Gingold v. Allen, ___ Ga. App. ___, 613 S.E.2d 173 (2005) (quoting Hamilton v. Powell......