Modestino v. Allstate Ins. Co.

• Decision Date: 08 March 1972
• Docket Number: Nos. 1,3,2,No. 46684,46684,s. 1
• Citation: 125 Ga.App. 665,188 S.E.2d 830
• Parties: Anna M. MODESTINO v. ALLSTATE INSURANCE COMPANY
• Court: Georgia Court of Appeals

Page 830

188 S.E.2d 830

125 Ga.App. 665

Anna M. MODESTINO v. ALLSTATE INSURANCE COMPANY.

No. 46684.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

March 8, 1972.

James F. Becton, Savannah, for appellant.

Kennedy & Sognier, John W. Sognier, Savannah, for appellee.

Syllabus Opinion by the Court

BELL, Chief Judge.

1. The appellant apparently through inadvertence attached her argument and citation of authority to the enumerations of error rather than incorporating it in Part II of her brief. See Rule 18(c)(2). Under these circumstances, this court does not consider that the enumeration of errors have been abandoned.

2. The plaintiff here, suing the defendant insurer for damage by hailstorm to the roof of a building covered under this policy, alleged in an affidavit opposing the defendant's motion for summary judgment that the damage was not discovered until a heavy rain fell which was some weeks after the hailstorm; that she then, and within 30 to 60 days from the date of the hailstorm, gave notice to a named agent from whom she had purchased the policy and who was the only person connected with the defendant corporation with whom she had had any dealings; that the agent 'told her he would have the matter handled for her' and that thereafter several adjusters of the defendant corporation and a roofing supplier at their behest examined and tested the roof.

The policy provides in part: '. . . within 60 days after the loss, unless such time is extended in writing by this Company, the insured shall render to this Company a proof of loss, signed and sworn to by the insured . . . No suit or action on this policy for the recovery of any claim shall be sustainable unless all the requirements of this policy shall have been complied with . . .'

The defendant's motion for summary judgment is based on the sole ground that no proof of loss was filed or waived, nor was the loss reported immediately or in writing. Affidavits of the defendant's property loss supervisor and an employee show that the latter received notice by telephone on August 3, 1970 and 'that neither she nor Allstate Insurance Company had received any other notice of said loss which is now claimed to have occurred on March 31, 1970.' So much of the affidavit as recited that Allstate Insurance Company had received no other notice is a conclusion beyond the competence of the affiant's testimony. Burton v. National Indemnity Co., 123 Ga.App. 402, 181 S.E.2d 107. There is no affidavit which would establish that the person plaintiff swears she notified was not in fact notified or was not an agent with real or apparent authority to receive notice. The plaintiff shows that the notice resulted in action because of the fact that an adjuster and a roofing supplier examined the roof on behalf of the defendant. This latter, of course, does not of itself constitute a waiver of proof of loss. Code Ann. § 56-2428(3). But taken in connection with the assurance of the agent Dickson that he would handle the matter for the plaintiff and the presumption in Georgia that an adjuster sent to adjust a loss has the authority to waive proof of loss (Aetna Casualty & Surety Co. v. Sampley, 108 Ga.App. 617, 623, 134 S.E.2d 71), there are matters here which require jury resolution. Was the loss promptly reported on discovery? Did Dickson have apparent authority to 'handle the matter' for the plaintiff? Did he in fact make this assurance to her, and, if so, would not good faith at least require that he inform her that another act (obtaining a proof of loss form, filing it out and returning it) remained to be performed before the insurer became liable under the terms of the policy? Did Dickson send out the insurance adjusters and the roofing supplier? For whom were they acting? Did this course of dealing cause the plaintiff to believe that she need not get out her insurance contract and read the fine print in order to ascertain whether she had in fact done what was required of her? The benefit of all reasonable doubts arising from these questions must be given to the plaintiff (Cotton States Mut. Ins. Co. v. Proudfoot, 123 Ga.App. 397, 181 S.E.2d 305) and it cannot be said as a matter of law that nothing remains for jury determination.

The trial court erred in granting the defendant's motion for summary judgment.

Judgment reversed.

JORDAN, P.J., and DEEN, EVANS and CLARK, JJ., concur.

HALL, P.J., and EBERHARDT, PANNELL and QUILLIAN, JJ., dissent.

EBERHARDT, Judge, dissenting in part.

I am in agreement with Division 1 of the majority opinion, but I cannot agree with the holding in Division 2.

Modestino held a policy of fire and extended coverage insurance on a restaurant building. The extended coverage included loss by hail or windstorm.

In her petition plaintiff alleges that 'on or about March 31, 1970 the roof structure . . . was severely damaged as a result of a heavy hailstorm, greatly damaging the roof and interior ceiling of said building,' the repairing of which cost $2,002.00, and that 'forthwith after the happening of said loss and damage, plaintiff gave notice thereof to the defendant, and has duly performed all conditions in said policy contained on her part to be kept and performed.'

Defendant denied all allegations of the petition, save that it had issued to plaintiff a policy of insurance, copy of which was attached as an exhibit to plaintiff's petition. As affirmative defenses defendant asserted that plaintiff had failed to give notice of the loss as required by the policy, and had failed to file a proof of loss within 60 days after the loss as required by the policy.

The question here is whether the facts appearing disclose a waiver, or the absence thereof, of the filing of the proof of loss. Under my view they demand a finding that there has been no waiver, and since it is conceded that the policy provision was not otherwise complied with it must follow that a summary judgment for the defendant was proper.

It is the duty of a policyholder to read his policy and familiarize himself with its provisions, conditions, etc. Security Life Ins. & Annuity Co. v. Gober, 50 Ga. 404(2); Massey v. Cotton States Life Ins. Co., 70 Ga. 794. The policy here was issued to plaintiff June 30, 1967, and she had had it for a period of nine months before the loss is alleged to have occurred. Thus, she had ample time within which to acquaint herself with its terms and provisions. Thomson v. Southern Mutual Ins. Co., 90 Ga. 78, 15 S.E. 652. 'It is presumed that the insured knew of the policy provisons.' Hatfield v. Colonial Life & Accident Ins. Co., 102 Ga.App. 630, 632, 116 S.E.2d 900, 901). 'Having the policy in its possession prior to the fire plaintiff was charged with the knowledge of the terms and conditions of the policy . . .' S. & A. Corp. v. Berger & Co., 111 Ga.App. 39, 40, 140 S.E.2d 509, 511. Accord: Field v. Goldstein, 97 Ga.App. 286, 288, 102 S.E.2d 921, affirmed in Fields v. Goldstein, 214 Ga. 277, 104 S.E.2d 337. Failure of an insured toacquaint himself with the policy provisions does not excuse his compliance with the requirements of the policy. Equitable Life Assur. Soc. of United States v. Adams, 56 Ga.App. 5(2), 192 S.E. 90.

Plaintiff, therefore, was not unaware of her obligation to give written notice of the loss to the company, and to file with it a sworn proof of loss.

Concerning the requirement of a written notice of the loss see Stubbs v. State Farm Mut. Auto Ins. Co., 120 Ga.App. 750, 172 S.E.2d 441. A written notice of loss is called for by the policy, and is contemplated by the provisions of Code Ann. § 56-2427.

By her affidavit plaintiff says that the notice of the loss was by a telephone call...