Sentry Ins. v. Henderson

• Decision Date: 16 April 1976
• Docket Number: No. 51901,No. 2,51901,2
• Citation: 226 S.E.2d 759,138 Ga.App. 495
• Parties: SENTRY INSURANCE v. D. E. HENDERSON
• Court: Georgia Court of Appeals

Page 759

226 S.E.2d 759

138 Ga.App. 495

SENTRY INSURANCE v. D. E. HENDERSON.

No. 51901.

Court of Appeals of Georgia, Division No. 2.

April 16, 1976.

Rehearing Denied April 29, 1976.

James H. Weeks, Atlanta, for appellant.

Karp & Karp, Barry A. Karp, Atlanta, for appellee.

EVANS, Judge.

David E. Henderson owned a Dodge van automobile, which was insured against theft by Sentry Insurance, a Mutual Company. In September, 1973, during a trip to Florida, the automobile was either stolen or disappeared from a motel where it was allegedly parked. Henderson immediately notified the local police that the truck had been stolen and he returned to Atlanta the same day. The following day he notified his insurance company that the truck had been stolen. It was later located and impounded by the Sheriff's Department of Palm Beach, Florida, as it contained a load of marijuana.

The Florida authorites demanded impoundment fees of $485.97 for the release of the vehicle, and on Henderson's request of the insurance company that it pay same, the insurer refused to do so. The automobile was then released to the Bank of the South, the first lien-holder, who paid the impoundment charges of $485.97. Henderson then notified the insurance company that the first lien-holder had possession of the automobile and refused to deliver same to him unless the sum of $485.97 was paid. He requested the insurance company to pay same. The insurer refused. Henderson advised the insurance company that the bank was going to sell the van unless the bank was reimbursed for the sum it had paid out; in which case he would hold the insurance company liable for any and all damages sustained as a result thereof.

The automobile was sold by the bank, and Henderson, as plaintiff sued Sentry Insurance, as defendant, for the breach of the policy, plus 25% penalty as damages for defendant's bad faith, plus reasonable attorney fees for prosecution of the claim.

Defendant denied liability and after discovery and trial before a jury, a verdict and judgment was rendered in favor of the plaintiff for the sum of $5,191.95 (reduced to $4,900 in the judgment) as actual damages, $1,298 for bad faith, and $2,163 as attorney fees. Defendant appeals. Held:

1. The first two enumerations of error complain of the failure of the court to grant its motions for directed verdict (at the conclusion of plaintiff's evidence and again at the close of all evidence). Defendant contends that its theft policy did not cover a legal confiscation, but the evidence before the jury and the court was sufficient to authorize a finding that the vehicle was first stolen, then recovered and confiscated by the Florida Police authorities. Neither of the litigants has cited any Georgia cases in support of their positions. As to defendant's claim of a failure of the plaintiff to prove the value of said vehicle prior to its disappearance, the evidence was ample to authorize the jury to make a finding as to that value. Plaintiff never did recover the vehicle, hence it was not necessary to prove the value of same after it was recovered. The evidence authorized the verdict.

2. The third enumeration of error is that the court erred in overruling the defendant's motion for directed verdict on the issue of bad faith and attorney fees, contending this was not a loss covered by the policy-the vehicle having been confiscated because of possession of marijuana by the plaintiff. Yet the insurer knew that plaintiff was tried and acquitted of the charge. The evidence was ample to show the vehicle was first stolen or disappeared under mysterious circumstances. This, plus the cancellation of plaintiff's insurance policy, constituted evidence sufficient to authorize the jury's finding against the insurer on the issues of bad faith and attorney fees. The defendant contends that if the question of liability is a close one in the furtherance of justice, the court should see to it that verdicts which legally carry a penalty of bad faith are not allowed to stand. But this is not one of those cases in which the question of liability is close or the facts are in dispute so that the insurer has reasonable grounds to contest the claim that no penalty should be permitted. Here there was no reason or propable cause submitted in evidence that the automobile was not in fact stolen. The mere fact that marijuana was later found in the vehicle, and plaintiff was charged with possession of marijuana, is of no aid to the insurer as it knew he was tried and acquitted of such charge, and is totally insufficient to create a reasonable ground on the part of the defendant to contest the claim of liability. See in this connection Hartford Fire Ins. Co. v. Lewis, 112 Ga.App. 1(2), 143 S.E.2d 556. As stated in Home Indemnity Co. v. Godley, 122 Ga.App. 356(3), 177 S.E.2d 105 there must be a reasonable ground for an insurer to contest a claim. A mere suspicion of wrongdoing is insufficient. The insurer continued to litigate even after it knew plaintiff was acquitted of the marijuana charge.

3. The fourth enumeration of error complains of failure to charge of the measure of damages as to the loss of the vehicle. The defendant cites Ryder Truck Rental, Inc. v. Gianotos, 113 Ga.App. 81, 85, 147 S.E.2d 448. But here no property was recovered, and defendan...