New York Underwriters Ins. Co. v. Noles

• Decision Date: 14 June 1960
• Docket Number: No. 38298,No. 2,38298,2
• Citation: 101 Ga.App. 922,115 S.E.2d 474
• Parties: NEW YORK UNDERWRITERS INSURANCE COMPANY v. Horace NOLES et al
• Court: Georgia Court of Appeals

Page 474

115 S.E.2d 474

101 Ga.App. 922

NEW YORK UNDERWRITERS INSURANCE COMPANY v. Horace NOLES et al.

No. 38298.

Court of Appeals of Georgia, Division No. 2.

June 14, 1960.

Rehearing Denied June 29, 1960.

Syllabus by the Court

Every insurer shall have the right to prescribe regulations as to notice and preliminary proofs of loss, which shall be substantially complied with by the insured, but conduct by the insurance company inconsistent with an intention to enforce strict compliance will be deemed a waiver of a contractual provision which provides, as a condition prerequisite to any valid claim against the company, that the insured shall file sworn proofs of loss with the company within 90 days after the date of loss.

Horace Noles and others, filed a petition in the City Court of Newnan, for $7,500 alleged to be due under the provisions of an insurance policy issued by the defendant, New York Underwriters Insurance Company. Carroll Realty Insurance Company and the West Georgia National Bank are only nominal parties. Hereinafter Horace Noles will be referred to as the plaintiff, and New York Underwriters Insurance Company will be referred to as the defendant. Succinctly, the petition alleged that the defendant issued a policy of insurance to insure the plaintiff against loss by fire to a caterpillar tractor; that on October 20, 1958, the plaintiff's tractor was damaged by fire in the amount prayed for. The plaintiff attached to the petition a copy of the insurance policy which contained the following provision: 'The assured shall as soon as practicable report to this company or its agent every loss or damage which may become a claim under this policy and shall also file with the company or its agent within ninety (90) days from date of loss a detailed sworn proof of loss. Failure by the assured to report the said loss or damage and to file such sworn proof of loss as hereinbefore provided shall invalidate any claim under this policy for such loss.' The plaintiff's petition, as amended, alleged that the defendant by its conduct and action waived the requirement of filing a sworn proof of loss. Paragraph 7 of the petition, as amended, alleged that on notice of the fire the defendant's authorized agent directed the plaintiff to transport the tractor to a concern in Atlanta, Georgia; that the plaintiff complied with the directions of the defendant's agent and transported the tractor to the Atlanta concern; that the defendant authorized repairs of certain damage to the tractor; that, on notification that the tractor had been repaired the plaintiff brought the tractor to his home and placed it in use. It is further alleged that immediately on use of the tractor the plaintiff discovered that the tractor had not been completely repaired and so notified the adjustor for the defendant. The adjustor directed the plaintiff to continue to use the tractor but it continued to operate improperly. Whereupon the plaintiff again notified the adjustor fot the defendant who directed the plaintiff to retransport the tractor to the Atlanta concern. After re-examination by the Atlanta concern additional damages were discovered, and the plaintiff continued to negotiate with the defendant's adjustor; that at no time during the negotiations did either of the defendant's two adjustors state that the plaintiff would be required to file a sworn proof of loss and that such negotiations were continuous between the plaintiff the plaintiff's attorney and the defendant's adjustors to and after the time for the filing of a sworn proof of loss as required by said policy had elapsed; that the defendant has waived all conditions imposed upon the plaintiff to file a sworn proof of loss, and the defendant is estopped from requiring that that plaintiff file a proof of loss.

The trial court overruled the defendant's general demurrer. To such ruling the insurance company excepts.

Charles L. Weltner, Smith, Swift, Currie, McGhee & Hancock, Atlanta, for plaintiff in error.

Charles L. Goodson, Welborn B. Davis, Jr., Newnan, for defendant in error.

FRANKUM, Judge.

The sole question to be determined, as admitted by the attorneys for both parties, is whether or not the conduct of the defendant's agent and adjustors will amount to a waiver of a contractual provision in a policy of insurance that requires the insured to submit sworn proofs of loss within a specified time as a prerequisite to any claim against the insurance company.

'Waiver is a voluntary relinquishment of some known right, benefit, or advantage, which, except for such waiver, the party otherwise would have enjoyed.' Gray Lumber Co. v. Harris, 8 Ga.App. 70, 68 S.E. 749, 752; Barnes v. Goodner, 77 Ga.App. 448, 49 S.E.2d 128. The legal principles announced in Corporation of Royal Exchange Assurance of London v. Franklin, 158 Ga. 644, 124 S.E. 172, 176, 38 A.L.R. 626, is the leading case in this jurisdiction on this problem. In this decision Judge Hines stated: '* * * Clauses in insurance policies which prohibit waivers unless indorsed thereon refer only to the provisions which enter into the contract of insurance, and do not affect conditions which are to be performed after loss, such as furnishing proofs of loss and giving notice. These may be expressly waived, or may be waived by conduct inconsistent with an intention to enforce a strict compliance with the condition, by which the insured is led to believe that the insurer does not intend to require such compliance.'...