McCauley v. Boston Old Colony Ins. Co., 57014

• Decision Date: 27 June 1979
• Docket Number: No. 57014,57014
• Citation: 256 S.E.2d 19,149 Ga.App. 706
• Parties: McCAULEY et al. v. BOSTON OLD COLONY INSURANCE COMPANY et al.
• Court: Georgia Court of Appeals

Page 19

256 S.E.2d 19

149 Ga.App. 706

McCAULEY et al. v. BOSTON OLD COLONY INSURANCE COMPANY et al.

No. 57014.

Court of Appeals of Georgia.

Submitted Jan. 3, 1979.

Decided April 4, 1979.

Rehearing Denied April 30, 1979.

Certiorari Denied June 27, 1979.

Neely, Player, Hamilton & Hines, Ronald D. Reemsnyder, Atlanta, for appellants.

Swift, Currie, McGhee & Hiers, John R. Gaughen, Henning, Chambers & Mabry, Rex Smith, Atlanta, for appellees.

BANKE, Judge.

The appellants, Richard and Patricia McCauley, contracted with appellee Aero-Mayflower Transit to move their household belongings to Atlanta, Georgia. Their home in Atlanta was damaged when the moving van backed up too far in the driveway and hit the carport roof. Certain personalty was also damaged as a result of the collision. Appellants sued appellee Boston Old Colony Insurance Company to recover for these losses under their homeowners' policy. They also sued Mayflower and its insurer appellee Hartford Accident & Indemnity Company. By agreement of the parties, the suits were consolidated for trial. The trial judge entered directed verdicts against the appellants on all their claims, except the question of Mayflower and Hartford's liability for the damages to the appellant's personal property. The jury returned a verdict of $1 for the appellants on that claim. The appellants now appeal the judgments entered on all these verdicts. Held :

1. In their first enumeration of error, the appellants contend that the trial judge erred in directing a verdict for Boston Old Colony.

(a) The evidence introduced at trial established that while the appellants gave Boston's local agent prompt oral notice of the July 5, 1976, injury to their home, they also informed him that they did not want to file a claim under their homeowner's policy since Mayflower and Hartford would cover the loss. It was not until five months after the loss, when the appellants were unable to work out a satisfactory settlement with the other parties, that they filed a written notice of claim against Boston. Boston's motion for directed verdict was based on the appellants' failure to submit a signed and sworn proof of loss ". . . within 60 days after the loss, unless such time is extended in writing by the company." Boston also relied on the additional policy provision that "(n)o suit or action under . . . this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with . . ."

Boston did not waive its right to assert the proof-of-loss requirement by investigating the loss, obtaining an independent appraisal, and entering into negotiations looking toward a possible settlement of the loss or claim after receiving the appellants' written notice in December 1976. See Code Ann. § 56-2428 (3); Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga.App. 697 (2) (d), 172 S.E.2d 159 (1969). The fact that Boston's adjustor may have made an oral offer of settlement (an allegation denied by Boston) in January 1977 does not require a contrary ruling since the alleged offer was made more than 60 days after the loss. See Reserve Ins. Co. v. Campbell, 107 Ga.App. 311, 130 S.E.2d 236 (1963). Waiver of the proof-of-loss requirement occurs only when it appears ". . . that the refusal to pay (or what amounted to a refusal to pay) occurred within the same period (i. e. 60 days), for nothing short of an express waiver by the insurer can be effective after expiration of the time for performing the condition precedent, i. e., the filing of a proof of loss." Reserve Ins. Co. v. Campbell, supra, at 314, 130 S.E.2d at 239. See also Travelers Indem. Co. v. Marks, 111 Ga.App. 388 (1), 141 S.E.2d 911 (1965); Sou. Ins. Co. v. Martin, 118 Ga.App. 608 (3) (c), 164 S.E.2d 887 (1968); Buffalo Ins. Co. v. Star Photo Finishing Co., supra, Div. 1 (b).

The appellants' contention that this 60-day rule should not apply to them since they had only an insurance binder at the time of the accident (and did not receive the policy until October 1976) is without merit since, even if the 60-day period was measured from this latter date, the alleged offer was still made after expiration of the period. Furthermore, Boston's local agent had no duty to give the appellants a proof-of-loss form upon being orally notified of the loss, since he was specifically informed that no claim would be filed. See Buffalo Ins. Co. v. Star Photo Finishing Co., supra, Div. 2 (e). Accordingly, the trial judge did not err in directing a verdict for appellee Boston.

(b) In light of our preceding ruling, the trial judge did not err in entering judgment for Boston on the appellants' claim to recover a bad faith penalty. See generally State Farm Mut. Auto. Ins. Co. v. Harper, 125 Ga.App. 696 (3), 188 S.E.2d 813 (1972).

2. (a) Appellants' enumerations 2 and 3 relate to the trial judge's direction of verdicts in favor of appellees Mayflower and Hartford, finding them not liable for the injury to the appellants' home.

"The correct measure of damages for injury to a building is the cost to repair or to restore the building to its condition before the injury. See Harrison v. Kiser, 79 Ga. 588 (8), 4 S.E. 320 (1887); NEDA Const. Co. v. Jenkins, 137 Ga.App. 344 (4), 223 S.E.2d 732 (1976). The only stated exception to this rule is when restoration of the building is impractical because of its 'dilapidated condition' at the time of the injury. See Mercer v. J. & M. Transp. Co., 103 Ga.App. 141 (2), 118 S.E.2d 716 (1961); NEDA Const. Co. v. Jenkins, supra." Buhl v. Sandy Springs Medical Center, 147 Ga.App. 176, 177, 248 S.E.2d 238 (1978). The exception was not shown to be applicable in this case.

Sufficient evidence upon which the jury could have made a determination as to the cost of repair was provided by Hartford's adjustor. Called by the appellants for cross examination, this witness testified that he had been in the business for 26 years, that he had attended numerous training sessions for adjustors during that period, and that he specialized in the area of damage to properties and buildings. He also testified that he had personally observed the damage to the appellants' home from the outside and that he had communicated with another expert concerning the extent of the structural damage which could not be seen from the outside. During the course of this conversation, the other expert expressed his opinion as to the cost of repair. Based on this conversation and on his own personal observations and experience, the adjustor testified that the house could be made structurally sound for $2,800.

An expert may give an opinion upon the facts testified to by other witnesses, but not upon Their opinions. Walker v. Fields, 28 Ga. 237 (2) (1859). See 31 Am.Jur.2d 546, Expert and Opinion Evidence, § 42. Although Hartford's adjustor did receive the benefit of another expert's opinion in this case, which opinion he related to the jury without objection, there is nothing in the witness' testimony to indicate that his own opinion was based on this other opinion, rather than upon his own personal observations, combined with the factual information to which he received from the other expert. Accordingly, his testimony cannot be held to have been without at least some probative value, and the trial court erred in granting a directed verdict to Mayflower and Hartford on the issue of their liability for the damage to the plaintiffs' home.

[b] A bona fide controversy existed as to the amount of the appellants' loss in this case. See Buffalo Cab Co. v. Williams, 126 Ga.App. 522, 191 S.E.2d 317 (1972). Thus, the trial judge did not err in directing a verdict for appellees Mayflower and Hartford on the issue of bad faith and attorney fees. See Tift v. Towns, 63 Ga. 237 (3) (1879); Ga. Farm Bur. Mut. Ins. Co. v. Boney, 113 Ga.App. 459 (1) 148 S.E.2d 457 (1966).

3. The jury returned a verdict of $1 in favor of appellants for injury to their furniture. In their fourth enumeration of error, the appellants seek reversal of this verdict as being inadequate as a matter of law.

As a common carrier, Mayflower was...