Howard v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 22 October 1986
• Docket Number: No. 72692,72692
• Citation: 180 Ga.App. 802,350 S.E.2d 776
• Parties: HOWARD v. ST. PAUL FIRE & MARINE INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 776

350 S.E.2d 776

180 Ga.App. 802

HOWARD v. ST. PAUL FIRE & MARINE INSURANCE COMPANY.

No. 72692.

Court of Appeals of Georgia.

Oct. 22, 1986.

Rehearing Denied Nov. 10, 1986.

Certiorari Denied Feb. 17, 1987.

Jonathan O. Oden, Atlanta, for appellant.

Eugene A. Medori, Jr., Decatur, Burton L. Tillman, Jr., Atlanta, for appellee.

POPE, Judge.

Appellee St. Paul Fire & Marine Insurance Company brought this action against appellant John L. Howard seeking recovery of insurance proceeds previously paid to Howard on a 1980 claim filed against St. Paul's insured. The complaint alleged that Howard had submitted false and fraudulent documentation in the 1980 claim and thus had wrongfully received the insurance proceeds. Howard counterclaimed against St. Paul alleging malicious prosecution and at the same time brought in the Insurance Crime Prevention Institute and its agent, M. Wayne Walker, as defendants in counterclaim. Following extensive and protracted pretrial discovery, St. Paul moved for summary judgment as to Howard's counterclaim. St. Paul also moved to strike certain documents submitted by Howard in response to the summary judgment motion. The trial court granted both the summary judgment and the motion to strike, and Howard brings this appeal.

The facts show that in February of 1978 Howard filed a claim for loss of property with Aetna Life & Casualty Company. In support of this claim, Howard produced receipts as evidence of ownership of certain photographic equipment lost as the result of a burglary of his residence. In October 1980, as a result of an employment transfer to Atlanta, Howard sustained another loss of property and filed a claim with the moving company's insurer, St. Paul. In support of the 1980 claim for loss, Howard submitted as evidence of ownership some of the same documents which had been filed in support of his 1978 claim. An independent adjuster evaluated Howard's claim, and the claim was approved for payment in due course.

In 1981 St. Paul referred the Howard file to the Insurance Crime Prevention Institute (ICPI) for further investigation to determine whether or not Howard had committed insurance fraud by filing duplicate claims. ICPI is a non-profit, independent organization supported by assessments levied against approximately 400 companies within the insurance industry and whose purpose is to investigate cases of potential insurance fraud on referral from participating companies where there is a suspicion on the part of the referring company that the insured party may be guilty of fraud. The Howard case was assigned to M. Wayne Walker, a special agent of ICPI, who investigated the matter and recommended criminal prosecution. Upon approval of this action by his superiors at ICPI, Walker presented the case to a magistrate, who ruled that probable cause existed for the issuance of a warrant for the arrest of Howard for the crime of theft by taking. A preliminary hearing was held and the case then bound over to the grand jury. The district attorney's office, after reviewing the matter, decided not to present the matter to the grand jury as that office felt there was insufficient evidence for a criminal conviction.

1. In granting St. Paul's motion for summary judgment, the trial court found that St. Paul was "not a proper party to ... Howard's action for malicious prosecution as [it] in no way participated in nor directed said prosecution...." Howard's first three enumerations of error attack this ruling, arguing that a genuine issue of fact remains as to whether or not an agency relationship existed between St. Paul and ICPI.

By affidavit in support of its motion for summary judgment, St. Paul effectively denied any agency relationship between it and ICPI. To counter this factual assertion, Howard cites only the following testimony of ICPI Agent Walker: "Q. You were the individual who signed the warrant on behalf of St. Paul? A. On behalf of the Insurance Crime Prevention Institute. Q. But they weren't the victim, were they? A. No. St. Paul was the victim. Q. So, the nature of your complaint was that...