Republic Ins. Co. v. Cook, 48520
| Citation | 201 S.E.2d 668,129 Ga.App. 833 |
| Decision Date | 05 October 1973 |
| Docket Number | No. 3,No. 48520,48520,3 |
| Parties | REPUBLIC INSURANCE COMPANY v. Albert COOK |
| Court | United States Court of Appeals (Georgia) |
G. Ralph Burger, Atlanta, for appellant.
Levine, D'Alessio & Cohn, Jack J. Geldbart, Morton P. Levine, Atlanta, for appellee.
Syllabus Opinion by the Court
The defendant appeals from the judgment of the State Court of DeKalb County sustaining the plaintiff's motion for summary judgment as to liability and damages.
The defendant issued a fire insurance policy covering certain property owned by the plaintiff on October 19, 1971, for one year, through their agent, Lomas & Nettleton, of Virginia Beach, Virginia, but produced by the W. S. Holloman Insurance Agency of Atlanta, Georgia. The policy was mailed to W. S. Holloman Insurance Agency for delivery to the plaintiff. On August 27, 1972, a fire damaged the insured property in the amount of $9,047.12. On September 6, 1972, the plaintiff notified the defendant of the loss and damage, and requested a proof of loss form, which the defendant refused to furnish, precipitating the present litigation.
Evidence showed that the original insurance policy was returned to the defendant's local office marked 'Cancelled' on January 27, 1972. The cancellation ticket and returned premium due were thereupon mailed to Lomas & Nettleton in Virginia.
The issues before us are: (1) whether or not the plaintiff cancelled the policy or received notice of the defendant's cancellation, as provided by law, and (2) whether the trial court was authorized to grant plaintiff's motion for summary judgment as to the amount of damages. In his affidavit, the plaintiff testified that '(a)t no time herein did this deponent request that the policy herein be cancelled, nor was deponent ever notified of any cancellation of said policy.' The defendant, while giving some internal reasons for cancelling the policy, does not contend that the plaintiff initiated the cancellation, and does not offer any evidence to show that the plaintiff was notified of the cancellation. Plaintiff's affidavit also contained a statement that his loss as a result of defendant's failure to pay was $9,047.12. Held:
1. The issue of liability is controlled by Code Ann. § 56-2430 (), which provides in part that for cancellation to be effective, '(w)ritten notice, stating the time when the cancellation will be effective, . . . may be delivered in person, or by depositing such notice in the United States mails to be dispatched by at least first class...
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