State Farm Mut. Auto. Ins. Co. v. Sills

• Decision Date: 24 February 1993
• Docket Number: No. A92A1711,A92A1711
• Citation: 208 Ga.App. 184,430 S.E.2d 32
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. SILLS et al.
• Court: Georgia Court of Appeals

Page 32

430 S.E.2d 32

208 Ga.App. 184

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. SILLS et al.

No. A92A1711.

Court of Appeals of Georgia.

Feb. 24, 1993.

Reconsideration Denied March 25, 1993.

Certiorari Denied July 1, 1993.

Young, Clyatt, Turner, Thagard & Hoffman, F. Thomas Young, Sherry S. Harrell, Valdosta, for appellant.

Berrien L. Sutton, Homerville, for appellees.

POPE, Chief Judge.

On September 9, 1990, plaintiff Barbara Sills' husband was struck and killed by a truck. On June 21, 1991, plaintiff filed suit against defendant State Farm Mutual Automobile Insurance Company seeking to recover, inter alia, attorney fees, punitive damages and a 25 percent penalty under former OCGA § 33-34-6. On February 4, 1992, State Farm filed a partial motion for summary judgment contending that the October 1, 1991 repeal of the Georgia Motor Vehicle Accident Reparations Act (No-Fault Act), of which OCGA § 33-34-6 was a part, precluded plaintiff's recovery of penalties, punitive damages and attorney fees under that section. The trial court denied State Farm's motion, but granted a certificate of immediate review. This appeal follows our grant of State Farm's application for interlocutory appeal.

"[T]his court has recently held that, in the absence of a contractual term in the policy providing for bad faith damages, there can be no post-repeal recovery of penalties, attorney fees, or punitive damages for an insurer's bad faith failure to pay under the repealed No-Fault Act. See Terry v. State Farm & c. Ins. Co., 205 Ga.App. 224, 422 S.E.2d 212 (1992). Although the repeal is not retroactive with respect to coverage, it is retroactive with respect to available remedies. Id." Green v. State Farm Ins. Cos., 206 Ga.App. 478, 481(2), 426 S.E.2d 3 (1992). Consequently, the trial court's denial of State Farm's motion for partial summary judgment must be reversed. See also Khosravi v. Aetna Cas. etc. Co., 206 Ga.App. 481, 425 S.E.2d 905 (1992).

Judgment reversed.

CARLEY, P.J., and JOHNSON, J., concur.