Safeco Ins. Co. v. Parrish, 52624
| Decision Date | 04 October 1976 |
| Docket Number | No. 2,No. 52624,52624,2 |
| Citation | 140 Ga.App. 544,231 S.E.2d 562 |
| Parties | SAFECO INSURANCE COMPANY v. Russ PARRISH et al |
| Court | Georgia Court of Appeals |
Dennis, Corry, Webb, Carlock & Williams, Dennis J. Webb, Douglas Dennis, H. James Winkler, Atlanta, for appellant.
Hatcher, Meyerson, Oxford & Irvin, Stanley P. Meyerson, Atlanta, for appellees.
Safeco Insurance Co. insured property of Russ and Maxine H. Parrish for damages resulting from fire loss. The dwelling was used as rental property and the premises were left partially destroyed by fire. Proof of loss was thereafter submitted by the owners, claiming it would cost approximately $39,000 to repair the premises, and they demanded payment of the face amount of the polciy, $30,000. The insurer rejected the proof of loss, contending that all items damaged by the fire could be repaired by a contractor who had furnished the insurer an agreed contract price in the amount of $20,805.41, and that the company was ready and willing to settle based on the estimate of $20,805.41, less $951.61 for depreciation. This offer was rejected.
Thereafter the owners sued the insurer in the amount of $30,000, which was the maximum coverage, together with 25% penalty and reasonable attorneys fees.
The case came on for trial and the jury returned a verdict of the plaintiff in the principal amount of $28,000 for repairs and replacement and further found the defendant Defendant paid the $28,000 actual damages and filed a motion for new trial challenging the jury verdict as to bad faith, penalties and attorneys fees. Motion for new trial was denied and defendant appeals. Held:
in bad faith and recommended a penalty of $4,000 plus attorneys fees of $1500. The judgment followed the verdict.
All of the enumerations of error relate to the question of whether or not there is any evidence of bad faith so as to authorize the findings of the jury. The insurance contract specifically covered up to $250.00 per month for the loss of rental value, yet the defendant insurance company did not offer anything for rent. Defendant also deducted from its written offer $951.61 for depreciation, although the contract did not provide for a depreciation deduction, which it unjustifiably sought to be deducted from the estimate of repairs. The repair estimate attached to a letter offer to plaintiff of $19,853.80 was based upon a repair estimate of a construction company in the amount of $20,805. However, the repair estimate shws a considerably higher amount for the actual repairs, and some of the items shown thereon do not meet the original construction of the dwelling in regard to substituted items. For instance, it eliminates plaster and substitutes sheet rock. Nor did the defendant ever pay any funds into court and more than a year from the date of the proof of loss as to the firs to the date of trial would result in considerable lost interest on the amount of damages. The award of $28,000 by the jury has not been contested and is within $2,000 of the actual amount claimed by the plaintiff under the policy limits. The above evidence shows clearly that the jury was authorized to make an award of bad faith and attorneys fees. See Reserve Life Ins. Co. v. Ayers, 217 Ga. 206(2), 212, 121 S.E.2d 649; U.S. Fidelity & Guaranty Co. v. Evans, 223 Ga. 789, 158 S.E.2d 243; Watertown Fire Ins. Co. v. Grehan, 74 Ga. 642, 657; Metropolitan Life Ins. Co. v. Lathan, 77 Ga.App. 6, 9, 47 S.E.2d 596; Jackson v. Motors Ins. Corp., 97 Ga.App. 658, 104 S.E.2d 253; North British & Merchantile Ins. Co. v. Mercer, 90 Ga.App. 143, 145, 82 S.E.2d 41; Lumbermen's Underwriting Alliance v. First Nat. Bank & Trust Co., 100 Ga.App. 217, 228-229, 110 S.E.2d 782.
Judgment affirmed.
In defendant's original brief it argued enumerations of error 2 and 3 together with reference to the trial court's instructions to the jury, contending that the instructions were 'improper, confusing and argumentative.' The first portion of the argument in the brief in regard thereto concerned itself with the fact that the issue of bad faith, penalty and attorney fees should not have been submitted to the jury at all, inasmuch as the evidence did not authorize it. Consequently, in our opinion and decision above we thought we had covered completely all of the arguments of the defendant with reference to its enumerations of error. On motion for rehearing defendant contends that we failed to deal with defendant's complaint found in enumerations of error 2 and 3; that the trial court's instructions in regard to bad faith, penalty and attorney fees were confusing and argumentative. We now consider these enumerations of error.
The court in its original charge iinstructed the jury the law that in the event of a loss which is covered by a policy of insurance and refusal of the insurer to pay the same within 60 days after demand has been made by the holder of the policy, and a finding has been made that such refusal was in bad faith, the insurer shall be liable to pay such holder, in addition to the loss, not more than 25% of the liability of the insurer for the loss; and if the jury should find that the insurer had acted in bad faith, 'and if you further find that you want to award 25% plus attorneys fees, the 25% would be added to any amount that you would determine that the plaintiffs would be entitled to recover, provided you find that they are entitled to recover more than $22,000.' The court added that 'if they are entitled to the penalty and you find over $22,000, then the 25% penalty would be attached to the gross amount you find that the plaintiff is entitled to.' As to the form of verdict the jury was to return 'for the defendant' up to $22,000, or in an amount in excess of that 'if you so determine and if you determine that they are entitled to collect a penalty as given you in charge,...
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