Jones v. AUTOMOBILE INS. CO. OF HARTFORD, CONN., 1:88-CV-03-RHH.
| Decision Date | 30 May 1989 |
| Docket Number | No. 1:88-CV-03-RHH.,1:88-CV-03-RHH. |
| Citation | 725 F. Supp. 528 |
| Parties | Albert JONES, Plaintiff, v. The AUTOMOBILE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
David E. Tuszynski, Nickerson & Tuszynski, Atlanta, Ga., for plaintiff.
William Lewis Spearman, Webb Carlock Copeland Semler & Stair, Atlanta, Ga., for defendant.
This action is currently before the court on defendant's Motion to Deposit Money With Court, To Dismiss Complaint and For Other Relief. For the reasons stated below, the court GRANTS defendant's motion.
On April 24, 1986, plaintiff Albert Jones, while stopped in his pick-up truck at a red light, was struck from behind by another vehicle. As a result of this collision, Mr. Jones suffered injuries to his head, neck and back.
At the time of the accident, Mr. Jones had basic No-Fault/Personal Injury Protection ("PIP") insurance supplied by defendant (hereinafter "Aetna").
Mr. Jones received treatment for his injuries from Dr. Roger Curry, a chiropractor. Mr. Jones filed a claim for No-Fault/PIP benefits with Aetna. Aetna reimbursed plaintiff for $1,704.00 in medical expenses. Aetna also paid Mr. Jones No-Fault loss of income benefits for the period of disability as established by Dr. Curry1 from April 24, 1986 through July 29, 1986 as follows:
WEEK 1 (Partial week—
4/24/86 only) $ 58.41
WEEK 2 (4/28-5/2/86) $200.00
WEEK 3 (5/5-5/9/86) $200.00
WEEK 4 (5/12-5/16/86) $200.00
WEEK 5 (5/19-5/23/86) $200.00
WEEK 6 & 7 (5/26-6/6/86) $400.00
WEEK 8 (6/9-6/13/86) $200.00
WEEK 9 (6/16-6/20/86) $200.00
WEEK 10 & 11 (6/23-7/4/86) $400.00
WEEK 12 (7/7-7/11/86) $-0-
WEEK 13 (7/14-7/18/86) $-0-
WEEK 14 (7/21-7/25/86) $-0-
WEEK 15 (partial week—
7/28-7/29/86 only) $-0-
By order dated November 2, 1988, 698 F.Supp. 226, this court held that O.C.G.A. § 33-34-4 merely requires the insurer to pay $200.00 per week to injured insureds throughout the period in which they are disabled, or until the $5,000.00 limitation on aggregate benefits is met. Thus, as reflected above, defendant paid plaintiff $200.00 per week for loss of income benefits from April 24 through July 4, 1986.
Defendant claims, however, that plaintiff was not disabled after July 4, 1986 and therefore was not entitled to loss of income benefits for the period from July 4-July 29, 1988. Plaintiff claims, in rebuttal, that he was unable to work until July 30, 1986. Plaintiff therefore seeks to recover loss of income benefits for the period from July 4-July 29, 1986, in addition to the period from April 24-July 4, 1986. Plaintiff also seeks statutory penalties and punitive damages from defendant for defendant's alleged bad faith failure to pay the claim for loss of wages within the period required under O.C.G.A. § 33-34-6(b) (25% penalty) and § 33-34-6(c) (punitive damages).
Defendant has now offered to pay plaintiff $700.00 for loss of wages from the period of July 4-July 29, 1986. Defendant states that, although it believes it had a good faith reason for failing to pay plaintiff on demand for this period, defendant will now tender the disputed amount. Defendant has therefore filed its Motion to Dismiss this action as moot since defendant is offering to pay the outstanding loss of wages claim.
Plaintiff maintains that this action is not moot, because a jury should determine whether defendant's failure to pay plaintiff's loss of wage claim was in bad faith, thereby entitling plaintiff to statutory penalties and punitive damages.
O.C.G.A. §§ 33-34-6(b) and (c) provide for the imposition of penalties should an insurer fail to prove that it acted in good faith in failing or refusing to pay benefits sought.2 The burden of proving good faith is placed on the insurer. Atlanta Casualty Co. v. Jones, 247 Ga. 238, 241, 275 S.E.2d 328 (1981), Bituminous Casualty Corp. v. Mowery, 145 Ga.App. 45, 54, 244 S.E.2d 573 (1978). In this context, good faith requires a showing of reasonable or probable cause for not paying the claim on time. Id. Generally, the question of the insurer's good faith is one of fact for the jury. Binns v. MARTA, 250 Ga. 847, 848, 301 S.E.2d 877 (1983). However, where there is no evidence of a frivolous or unfounded refusal to pay, the court should not allow the imposition of bad faith penalties. Government Employees Insurance Co. v. Presley, 174 Ga.App. 562, 566, 330 S.E.2d 779 (1985).
Defendant contends that, as a matter of law, its refusal to plaintiff's loss of income claim for the period from July 4 through July 29, 1986 was not in bad faith. Defendant asserts that it made a good faith objection to plaintiff's construction of O.C. G.A. § 33-34-4.3 "(T)he court's determination that defendant's contentions in regard to such construction are correct establishes, as a matter of law, that defendant's contentions were not in bad faith." Motion to Dismiss, p. 4.
While this court has determined that defendant's construction of the statute to limit plaintiff's loss wage benefits to $200.00 per week was correct, the court finds that the reason for defendant's delay in paying benefits was not the dispute regarding the construction of O.C.G.A. § 33-34-4. Rather, it appears from the deposition testimony of Ms. Elizabeth Griswold, a claims adjuster for Aetna, that defendant's failure to pay the loss of income claim was due entirely to the report of Independent Medical Examiner Dr. Belcher.
Upon the request of Aetna, Dr. Belcher conducted an independent medical exam ("IME") of plaintiff in early June, 1986. In his report dated June 13, 1986, Dr. Belcher remarks:
The lumbar strain is healing in a timely manner. The cervical spine has evidence of residuals which will probably require treatment for another four to six weeks. The visual symptoms are not responsive to my discipline. In my opinion, the neck/back symptoms will heal without residual impairment. I see no medical reason that would prohibit the claimant from working at this time. (emphasis added).
Deposition of Ms. Griswold, Plaintiff's Exhibit 1, p. 65.
When questioned as to why AETNA conducted an IME, Ms. Griswold, the Aetna adjuster with primary responsibility for processing Mr. Jones' claim stated on behalf of Aetna:
Q. And what else did you note in the running notes?
A. We needed a second opinion.
Q. What did you mean by needs a second opinion?
A. We need him evaluated for a second opinion on his condition.
Q. And what was it that—why is it that Aetna felt that you were—you or Aetna felt a need for a second opinion at this junction?
A. Because Dr. Curry did not give us any idea of how long he would be under treatment or how long he would be disabled.
After obtaining Dr. Belcher's report, Aetna evidently felt that payment of plaintiff's loss of income claim was no longer justified:
Q. Why were no benefits paid to Mr. Jones, lost wage benefits paid to Mr. Jones after July 4, 1986?
A. Because we had a report from Dr. Belcher that said that Mr. Jones could return to his work.
Q. Is that the only reason? I want to make sure there are no other reasons that aren't somehow reflected in what we've been talking about.
A. That's the only reason.
Deposition of Elizabeth Griswold, p. 78.
The court finds that the reason Aetna did not pay plaintiff's claims for lost wages between July 4 and July 29, 1986 was that Dr. Belcher's report indicated that plaintiff could return to work. The issue remains, however, whether Aetna's decision not to pay loss of income claims could be considered to have been made in bad faith such that pla...
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