Progressive Mut. Ins. Co. v. Burrell Motors, Inc.

• Decision Date: 02 July 1965
• Docket Number: No. 1,No. 41188,41188,1
• Citation: 143 S.E.2d 757,112 Ga.App. 88
• Parties: PROGRESSIVE MUTUAL INSURANCE COMPANY v. BURRELL MOTORS, INC
• Court: Georgia Court of Appeals

Page 757

143 S.E.2d 757

112 Ga.App. 88

PROGRESSIVE MUTUAL INSURANCE COMPANY v. BURRELL MOTORS, INC.

No. 41188.

Court of Appeals of Georgia, Division No. 1.

July 2, 1965.

Rehearing Denied July 16, 1965.

Smith, Ringel, Martin & Lowe, H. A. Stephens, Jr., Atlanta, for plaintiff in error.

Bullock, Yancey & Mitchell, Kyle Yancey, Atlanta, for defendant in error.

Syllabus Opinion by the Court

FELTON, Chief Judge.

1. Forfeitures are not favored by the law. Where a policy of insurance provides that when loss occurs, the insured shall file a sworn proof of loss within sixty days after the occurrence, and also provides that 'payment for loss may not be required nor shall action lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy nor until thirty days after proof of loss is filed and the amount of loss is determined as provided in this policy,' a mere failure to furnish proper proofs of loss within the 60-day period will not work a forfeiture of the policy unless there is an express stipulation to that effect. Southern Fire Ins. Co. v. Knight, 111 Ga. 622, 36 S.E. 821, 52 L.R.A. 70, 78 Am.St.Rep. 216; Harp v. Firemans Ins. Co., 130 Ga. 726(1), 61 S.E. 704; Godley v. North River Ins. Co., 51 Ga.App. 242(1), 180 S.E. 385; Pooser v. Norwich Union Fire Ins. etc. Co., 51 Ga.App. 962(2), 182 S.E. 44; Columbian National Life Ins. Co. v. Miller, 140 Ga. 346(2), 78 S.E. 1079. But where no proof of loss is filed, in the absence of waiver or estoppel the condition precedent to an action on the policy has not been met and the petition is subject to general demurrer.

2. An absolute refusal to pay on the part of an insurer, to constitute a waiver of its right to require filing of proof of loss forms, must be made within the 60 day period during which proof of loss forms are required to be filed, and a subsequent refusal after such time has elapsed will not obviate the necessity of filing. Reserve Ins. Co. v. Campbell, 107 Ga.App. 311, 130 S.E.2d 236. An admission of liability and an expression of willingness to pay the loss, even though not in the amount insisted upon by the insured, does not necessarily have a like effect. A refusal to pay may itself be based on the fact that the policy provisions as to proofs of loss have not been met, or that delay in their tender has prejudiced the rights of the company. A failure on the part of the company to furnish proof of loss forms after written notice of the loss also constitutes a waiver. Code Ann. § 56-2427. Where an insurance adjuster stated, within the 60 day period following the loss and after notice and investigation, that a prompt settlement would be made, a waiver by implication of the right to require proof of loss forms resulted and the insurer had no right to demand at a later time, but prior to the bringing of the action, that such forms be filled out. Sentinel Fire Ins. Co. v. McRoberts, 50 Ga.App. 732, 179 S.E. 256. And, while there is authority to the contrary, the better view appears to be that where the insurance company is promptly notified of the loss, makes its investigation and thereafter admits liability or enters into negotiations for settlement, the jury may find that a waiver of the insurer's right to insist on the filing of such forms has been waived. See Nathan Miller, Inc. v. Northern Ins. Co., 3 Terry 523, 42 Del. 523, 39 A.2d 23; Fink v. Lancashire Ins. Co., 66 Mo.App. 513; Hasterlik v. N. J. Fidelity & Plate Glass Ins. Co., 229 Ill.App. 604; Johnston v. Manhattan F. & M. Ins. Co., 294 Mich 550, 293 N.W. 747; Van Allen v. Farmers' Joint Stock Ins. Co., 10 Hun. 397, aff. 72 N.Y. 604; American Ins. Co. v. Rector, 172 Ark. 767, 290 S.W. 367; Nebraska Drillers, Inc. v. Westchester Fire Ins. Co., D.C., 123 F.Supp. 678; Providence Washington Ins. Co. v. Wolf, 168 Ind. 690, 80 N.E. 26, 120 Am.St.Rep. 395; Reliance Motor Co. v. St. Paul F. & M. Ins. Co., 165 Minn. 442, 206 N.W. 655; Security Ins. Co. v. McAlister, 139 Okl. 176, 281 P. 766; Kinney v. Hudson Ins. Co., 127 Kan. 264, 273 P. 416; City of Pittsburgh v. Firemen's Ins. Co. of Newark, 366 Pa. 49, 76 A.2d 368; Lusk v. American Central Ins. Co., 80 W.Va. 39, 91 S.E. 1078; Johnston Mfg. Co. v. Great American Ins. Co., D.C., 84 F.Supp. 20. In this connection see generally 49 A.L.R.2d, Anno., PP. 87 et seq. This rule has been abrogated in this state by statute in cases involving mere negotiations and investigation as will hereinafter appear.

3. In the present case it appears that an automobile insured by the defendant showing Cecil Glover as named insured and the plaintiff as loss payee as its interest might appear was a total loss as the result of a collision occurring October 21 1963. The plaintiff learned of the collision about two weeks later and immediately notified the defendant. The petition fails to show that the notice was in writing, or that, if so, the insurer thereafter failed to forward proof of loss forms, both of which would have been necessary to constitute a waiver under Code Ann. § 56-2427. Within a few days the defendant's adjusters investigated the claim and were furnished all information requested. On March 19, 1964, the plaintiff obtained an assignment of the claim from Glover, the named insured. On March 25th plaintiff's attorney wrote the adjuster requesting to be notified if it was incorrect in thinking that the loss had been reported; the claim had been investigated and the automobile inspected; that it was agreed to be a total loss; that there was no dispute about liability of the insurance company for the loss; that there was no dispute about further requesting instructions about selling the wrecked automobile. The letter was answered March 28th, the adjuster stating that he had talked to Burrell Motors and also to Mr. Burrell, that he needed information regarding ownership by Burrell Motors, that the insurance company had authorized payment between $300 and $400, and giving instructions regarding the sale of the property. The assignment of ownership was forwarded on April 17th and a demand for...