Modern Carpet Industries, Inc. v. Factory Ins. Ass'n, 46533
| Decision Date | 15 November 1971 |
| Docket Number | No. 3,No. 46533,46533,3 |
| Citation | 186 S.E.2d 586,125 Ga.App. 150 |
| Parties | MODERN CARPET INDUSTRIES, INC. v. FACTORY INSURANCE ASSOCIATION et al |
| Court | Georgia Court of Appeals |
Powell, Goldstein, Frazer & Murphy, C. B. Rogers, D. N. Love, Atlanta, for appellant.
Smith, Cohen, Ringel, Kohler, Martin & Lowe, Sam F. Lowe, Jr., J. Arthur Mozley, Atlanta, for appellees.
Syllabus Opinion by the Court
In a suit against its insurer (), plaintiff appeals from the grant of summary judgment and the dismissal of the insurer as a defendant.
Plaintiff's suit against Factory Insurance Association is in two counts. The first alleges liability under the policy for an alleged explosion and asks as damages the amount of the loss. The second count alleges bad faith in refusal to pay the loss, and asks for additional damages of 25% of the loss and attorney's fees.
The loss occurred in October of 1968, when, due to a disputed cause, a hydraulic fork lift sprayed fluid over a substantial quantity of plaintiff's carpeting inventory. Plaintiff notified the local agents who had obtained the policy and they presumably notified Factory since Factory then designated an independent adjusting agent to investigate the claim. A good deal of correspondence (submitted by plaintiff on the motion) passed among all those involved. There is some suggestion in these letters that the claim may have been informally denied even before plaintiff filed its formal proof of loss (which was late), and that subsequently, plaintiff requested further investigation and reconsideration. However, the documentary evidence shows that the claim was definitely and finally denied by April, 1969. Nevertheless, plaintiff did not file suit until February, 1970.
The policy contains a clause which limits the time for an action on the policy for recovery of a claim to a period of 12 months following the inception of the loss.
Plaintiff contends that Factory's waiver of a timely filed proof of loss, plus the 5 1/2 month delay in denying the claim, led it to believe that Factory would not insist upon strict compliance with the 12 month limitation period. In other words, plaintiff contends the above actions of Factory created a waiver of the 12 month limitation. Plaintiff cites several cases in which courts have either found a waiver or a tolling of the limitation period. None of these cases is applicable here. Each involved...
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