Interstate Life & Acc. Ins. Co. v. Brown

• Decision Date: 10 July 1978
• Docket Number: 56021,Nos. 56020,s. 56020
• Citation: 146 Ga.App. 622,247 S.E.2d 205
• Court: Georgia Court of Appeals
• Parties: INTERSTATE LIFE & ACCIDENT INSURANCE COMPANY v. BROWN. BROWN v. INTERSTATE LIFE & ACCIDENT INSURANCE COMPANY.

Page 205

247 S.E.2d 205

146 Ga.App. 622

INTERSTATE LIFE & ACCIDENT INSURANCE COMPANY v. BROWN.

BROWN v. INTERSTATE LIFE & ACCIDENT INSURANCE COMPANY.

Nos. 56020, 56021.

Court of Appeals of Georgia.

Submitted May 23, 1978.

Decided July 10, 1978.

Rogers, Magruder & Hoyt, J. Clinton Sumner, Jr., Rome, for appellant.

Gammon & Anderson, Joseph N. Anderson, Cedartown, for appellee.

BIRDSONG, Judge.

This is the second appearance of this case before this court. See Interstate Life etc. Ins. Co. v. Brown, 141 Ga.App. 195, 233 S.E.2d 44. After the second retrial of the case (following a mistrial and then a reversal by this court), Interstate Life etc. Ins. Co. (Interstate) appeals from an adverse jury verdict; Brown also filed a cross appeal. Held:

1. In the main appeal, Interstate's first three enumerations of error contest the judgment on general grounds. This issue initially was decided adversely to Interstate in Interstate Life etc. Ins. Co. v. Brown, supra, and we agree with that conclusion.

2. The trial court adequately instructed the jury as to the meaning of "accidental death" as contemplated by the insurance policy. See Jackson v. Nat. Life etc. Ins. Co., 130 Ga.App. 208, 202 S.E.2d 711; Johnson v. Nat. Life etc. Ins. Co., 92 Ga.App. 818, 90 S.E.2d 36. Interstate's contention to the contrary is without merit.

3. "In an action to recover penalties and attorney fees for the refusal of an insurer to pay a claim, it must be shown that the refusal was in 'bad faith'. Code Ann. § 56-1206 . . ., and the burden is on the insured to show that such refusal was made in bad faith. (Cits.) 'Bad faith', as the term is defined in Code Ann. § 56-1206 . . . means 'any frivolous and unfounded refusal in law or in fact to comply with the demand of the policyholder to pay according to the terms of the policy.' (Cits.) . . . (T)he mere fact that the insurer did not comply with the demand is not evidence of bad faith, nor is any burden thereby cast on the insurer to prove good faith." Interstate Life etc. Ins. Co. v. Williamson, 220 Ga. 323, 324, 138 S.E.2d 668, 670.

This court has previously determined that "there was a valid question of fact as to whether or not the insured's death was caused by accidental means". Interstate Life etc. Ins. Co. v. Brown, supra. Clearly, "(t)he issue before this court was doubtful and there was reasonable and probable cause for the defense raised. Hence, there is no basis for the grant of penalty and attorney fees as contended for by the plaintiff. (Cit.)" Poe v. Founder's Life Assurance Co., 145 Ga.App. 757, 760, 245 S.E.2d 166, 168. "No evidence of bad faith having been introduced, the issue should not have been presented to the jury, and an award under Code Ann. § 56-1206 is...