International Indem. Co. v. Coachman, 72267

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtCARLEY; McMURRAY, P.J., and POPE
Citation181 Ga.App. 82,351 S.E.2d 224
Docket NumberNo. 72267,72267
Decision Date06 November 1986

Page 224

351 S.E.2d 224
181 Ga.App. 82
No. 72267.
Court of Appeals of Georgia.
Nov. 6, 1986.
Rehearing Denied Dec. 2, 1986.
Certiorari Denied Jan. 15, 1987.

Page 226

[181 Ga.App. 92] Michael L. Wetzel, Decatur, for appellant.

James E. Butler, Jr., Sandra S. Laszlo, Columbus, for appellee.

[181 Ga.App. 82] CARLEY, Judge.

In August of 1981, appellee resided in the household of his grandmother, Mrs. Willie Mae Rambo. Mrs. Rambo owned a vehicle which was insured by appellant-defendant International Indemnity Company. She had applied for this policy with appellant in 1980. The application form presented for Mrs. Rambo's submission in 1980 did not comply with the requirements of former OCGA § 33-34-5(b), as that statutory provision was subsequently construed in Jones v. State Farm, etc., Ins. Co., 156 Ga.App. 230, 274 S.E.2d 623 (1980) and Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 300 S.E.2d 673 (1983). However, in apparent reliance upon former OCGA § 33-34-5(c), appellant had in 1981 mailed to Mrs. Rambo written notification of its offer to provide optional no-fault PIP coverages under her policy. No timely response to this notification had been forthcoming from Mrs. Rambo.

On August 24, 1981, appellee-plaintiff was seriously injured in the wreck of an automobile that was owned by another. He received $5,000 in basic no-fault PIP benefits under the automobile owner's policy. On March 9, 1982, a demand letter was sent to appellant by an [181 Ga.App. 83] attorney who stated that he was the legal representative of both appellee and Mrs. Rambo. This letter expressed his clients' "wish to accept the statutory continuing offer of optional benefits, and ... [the] elect[ion of] the maximum optional personal injury protection benefits of $50,000.00." Counsel's letter further requested that appellant "[p]lease let us know as soon as possible the exact amounts which the named insured would have been required to pay in the referenced time period or time periods to obtain such benefits, and we will immediately remit said sums to you. Please accept this as our unconditional tender of such sums. We await only your specification of the amount due to place the cash in your hands." (Emphasis supplied.) Appellant's response to this demand letter did include the information that the "additional coverage would have cost $150.00." (Emphasis supplied.) However, appellant unequivocally stated that it was denying appellee's claim for maximum optional no-fault PIP benefits on the basis that Mrs. Rambo had been offered but had rejected that coverage. As the result of this unequivocal denial of any coverage, Mrs. Rambo did not undertake to effect an actual tender of $150 to appellant.

In October of 1982, appellee filed the instant action against appellant, seeking to recover maximum optional no-fault benefits, a 25% penalty and attorney fees, and

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punitive damages. Appellant answered and asserted, among its other defenses, the applicability of former OCGA § 33-34-5(c) as a bar to appellee's recovery under Mrs. Rambo's policy. During the pre-trial stage of the instant case, this court issued an opinion, the effect of which was to uphold the viability of appellant's former OCGA § 33-34-5(c) defense in such circumstances as existed in the instant case. See International Indem. Co. v. Enfinger, 170 Ga.App. 443, 317 S.E.2d 841 (1984). That decision was, however, reversed by our Supreme Court. "We hold [former OCGA § 33-34-5(c) ] was intended to apply to policies in existence on March 1, 1975 and not those which came into existence after that date." Enfinger v. Intl. Indem. Co., 253 Ga. 185, 186, 317 S.E.2d 816 (1984). After the motion for rehearing in Enfinger was denied by our Supreme Court on July 25, 1984, an application for a writ of certiorari was filed with the Supreme Court of the United States. On November 13, 1984, that application was denied.

On December 18, 1984, appellee and appellant reached a partial settlement of the instant case. In consideration of the promise that Mrs. Rambo would subsequently tender $150 as additional premiums, appellant agreed to and did make a present $45,000 payment to appellee of optional no-fault benefits under Mrs. Rambo's policy. However, it was agreed that all remaining issues concerning appellee's entitlement to recover penalties, attorney fees, and punitive damages would be reserved for trial. These issues were tried before a jury and [181 Ga.App. 84] a verdict in favor of appellee was returned. Judgment was entered on the verdict and appellant filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. Appellant's motion was denied in its entirety. It is from that order of the trial court that appellant brings the instant appeal.

1. Among its 28 enumerations of error, appellant raises the general grounds and numerous evidentiary rulings that are tangentially related to the general grounds. It is those enumerations that will be addressed first.

Appellant's primary contention concerns the date that Enfinger became "final" for purposes of determining an insurer's compliance with OCGA § 33-34-6. Applying the rationale of Cotton States Mut. Ins. Co. v. McFather, 251 Ga. 739, 743(3), 309 S.E.2d 799 (1983), appellee should have been paid benefits within 30/60 days of July 25, 1984, since that is the date our Supreme court denied the motion for rehearing in Enfinger and thereby "finally" determined the non-viability of appellant's former OCGA § 33-34-5(c) defense. According to appellant, however, McFather is inapplicable authority upon which to predicate a recovery by appellee of OCGA § 33-34-6(c) punitive damages, since unlike McFather, the evidence in the instant case shows that an application for a writ of certiorari from our Supreme Court's Enfinger decision was filed with the Supreme Court of the United States. This, according to appellant, is sufficient proof that Enfinger could not have become "final" until disposition of the application for certiorari filed in the U.S. Supreme Court. See Dorsey v. West, 252 Ga. 92, 94 fn. 3, 311 S.E.2d 816 (1984). Appellee was paid the benefits within 60 days of November 13, 1984, the date that this application for federal certiorari was denied. Accordingly, the issue for resolution is whether the "finality" of Enfinger for purposes of determining appellant's liability for punitive damages is controlled by the McFather rationale or by the Dorsey rationale.

In International Indem. Co. v. Terrell, 178 Ga.App. 570, 573, 344 S.E.2d 239 (1986), this court applied the Dorsey rationale and held that the "failure to tender the optional no-fault benefits until final disposition of Enfinger, which turned out to be denial of a writ of certiorari by the United States Supreme Court, was reasonable as a matter

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of law." However, the evidentiary posture of Terrell differs from that of the instant case. Apparently unlike Terrell, supra at 572-573, 344 S.E.2d 239, appellee in the instant case undertook to adduce such additional evidence for the jury's consideration as would "warrant ... an inference that [appellant's] decision to petition for certiorari was a dilatory tactic...." To this end, appellee produced, over appellant's objections, two witnesses who were shown to be attorneys and members of the bar of the Supreme Court of the United States and who were duly qualified as legal experts. These witnesses offered opinions that, [181 Ga.App. 85] insofar as the record in Enfinger demonstrated that no "federal question" issue was ever raised until the motion for rehearing was filed, the Supreme Court of the United States lacked the requisite jurisdiction to review the decision rendered by our Supreme Court.

As to this jurisdictional issue which was not presented in Terrell, appellant offered nothing at trial which was specifically to the contrary. Moreover, appellant makes no compelling contention on appeal that the experts' testimony constituted an erroneous statement of the law as regards the federal statutory grant of jurisdiction applicable for securing the review of a state court decision by the Supreme Court of the United States. See generally 28 U.S.C.A. § 1257; Susquehanna Boom Co. v. West Branch Boom Co., 110 U.S. 57, 3 S.Ct. 438, 28 L.Ed. 69 (1884). By way of substantive opposition to the expert's testimony, appellant relied at trial, and relies on appeal, only on the general legal principle that a denial of certiorari should not be construed as the expression of an opinion by the appellate court on the merits of the decision. The validity of this legal principle is beyond dispute. We nonetheless do not construe it as necessarily foreclosing the pursuit of an otherwise relevant inquiry into the legal sufficiency of a litigant's invocation of an appellate court's statutory jurisdiction.

Having offered no substantive evidence in opposition, appellant enumerates the admission of the testimony of appellee's experts on several evidentiary grounds. With regard to relevance, it is clear that, by virtue of predicating its "good faith" refusal to pay upon the fact of the pending application for certiorari, appellant itself rendered expert testimony as to the underlying legal viability of that application potentially relevant and admissible evidence. See generally Stewart v. State, 246 Ga. 70, 75(4a), 268 S.E.2d 906 (1980). We are aware of no authority for the proposition that the mere filing of an application for the grant of certiorari by the Supreme Court of the United States is irrebutable evidence of an insurer's "good faith" and cannot be shown to be a possible dilatory tactic under the existing circumstances. The witnesses themselves gave no opinion as to the ultimate jury issue, which was whether the application for certiorari was sought in good or in bad faith. "The witness[es] merely gave [their] opinion[s] as to matters involved with the federal...

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