Steptoe v. Auto-Owners Ins. Co., AUTO-OWNERS

Decision Date21 October 1993
Docket NumberAUTO-OWNERS,No. A93A1205,A93A1205
Citation437 S.E.2d 626,210 Ga.App. 756
PartiesSTEPTOE et al. v.INSURANCE COMPANY.
CourtGeorgia Court of Appeals

Dodd & Kinsey, Jack E. Dodd and James B. Kinsey, Gainesville, for appellants.

Bonnie C. Oliver, Gainesville, for appellee.

JOHNSON, Judge.

In 1990, Brian Derek Steptoe, a minor, was injured in an automobile accident while riding as a passenger in a car insured by Auto-Owners Insurance Company. Brian Steptoe and his mother, Jalayne Steptoe, eventually settled their claims arising out of the accident with Auto-Owners; however, the settlement excluded personal injury protection (PIP) coverage. Auto-Owners subsequently failed to make timely payment for two medical bills for Brian Steptoe. In September 1991, the Steptoes brought suit seeking to recover those expenses as well as penalties and punitive damages pursuant to former OCGA § 33-34-6 for the late payment of no-fault benefits. Jalayne Steptoe also sought to recover punitive damages under OCGA § 51-12-5.1 for mental stress she allegedly suffered due to Auto-Owners' bad faith failure to pay.

The trial court granted Auto-Owners' motion to dismiss, relying on this court's decision in Terry v. State Farm Mut. Auto. Ins. Co., 205 Ga.App. 224, 422 S.E.2d 212 (1992), holding that in the absence of a contractual term in the policy providing for bad faith damages, the October 1991 repeal of OCGA § 33-34-6 bars recovery of penalties and punitive damages for an insurer's bad faith failure to pay under the No-Fault Act. The trial court also found Jalayne Steptoe could not maintain an action in tort against Auto-Owners because its duty to make payments was owed to Brian Steptoe and was of a contractual nature. The Steptoes appeal.

1. The Steptoes attack the trial court's application of Terry to this case on a number of grounds, all of which we find to lack merit. They first contend this court's decision in Terry is inconsistent with the general rule that laws that exist at the time of the making of a contract form a part of the contract. This rule, however, simply stands for the proposition that the contract must be construed in light of the laws which exist at the time it is made. See Dorsey v. Clements, 202 Ga. 820, 825, 44 S.E.2d 783 (1947).

The Steptoes also contend the decision in Terry, which established that a contract must specifically include the right to collect statutory penalties before that right can be vested by the contract, is erroneous. As this court noted in Terry, supra 205 Ga.App. at 227, 422 S.E.2d 212, the privilege to seek penalties against insurers is not generally a bargained-for element of insurance contracts. Here, as in Terry, the insurance policy simply mentioned the No-Fault Act; it did not mention the insured's ability to seek penalties and damages against the insurer. The court in Terry found that the "mere mention within a contract of an act which contains a statute authorizing penalties is not sufficient to secure the right to collect penalties by contract.... Any other interpretation of that language would be inconsistent with the aversion to forfeitures and penalties consistently recognized by the Georgia appellate courts." Id. 205 Ga.App. at 226, 422 S.E.2d 212.

The Steptoes next contend the trial court's application of Terry to this case effectively impaired a contract in violation of the Georgia Constitution because their right to receive 25 percent of the medical bills owed and reasonable attorney fees under former OCGA § 33-34-6 became "vested" when Auto-Owners refused to pay within 30 days. However, this court addressed such constitutional concerns in Terry when it noted that the Supreme Court has recognized that "construing a statute so as to relieve against penalties and forfeitures does not violate the constitutional rights of the complaining party because a person has no vested rights to a forfeiture or penalty." (Citation and punctuation omitted.) Terry, supra 205 Ga.App. at 227, 422 S.E.2d 212; see also State Farm Mut. Auto. Ins. Co. v. Young, 207 Ga.App. 355, 427 S.E.2d 835 (1993).

Finally, the Steptoes contend this court's decision in Terry to apply the repeal retroactively is erroneous because the legislature did not indicate that it intended for the repeal to so apply. This court addressed this argument on rehearing in Terry and found it to be without merit. See Terry, supra 205 Ga.App. at 225, n. 1, 422 S.E.2d 212; see also State Farm Mut. Auto. Ins. Co. v. Sills, 208 Ga.App. 184, 430 S.E.2d 32 (1993); Khosravi v. Aetna Cas., etc., Co., 206 Ga.App. 481, 425 S.E.2d 905 (1992).

2. The Steptoes contend the trial court erred in refusing to consider the settlement release as evidence that their right to recover penalties was vested because that document was not included in the record before the court. The Steptoes argued to the trial court that Terry was distinguishable because their right to recover penalties and punitive damages was vested contractually by virtue of the release agreement they entered into with Auto-Owners which specifically excluded PIP coverage. We find the trial court correctly declined to consider the release because that document was not included in the record before it. See Judge v. Wellman, 198 Ga.App. 782, 783, 403 S.E.2d 76 (1991). We reject the Steptoes' contention on appeal that the release did not need to be made a part of the record because the parties agreed that PIP coverage was excluded...

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3 cases
  • Price v. State Farm Mut. Auto. Ins. Co.
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • 26 Enero 1995
    ...272, 276, 439 S.E.2d 34 (1993) (claim denied); insurance companies that refuse to pay their claims, Steptoe v. Auto-Owners Ins. Co., 210 Ga.App. 756, 757, 437 S.E.2d 626 (1993) (claim denied); claim adjusters who call them names and accuse them of deception, Bekele v. Ryals, 177 Ga. App. 44......
  • Georgia Farm Bureau Mut. Ins. Co. v. Croley, A03A0876.
    • United States
    • United States Court of Appeals (Georgia)
    • 17 Octubre 2003
    ...S.E.2d 641 (1967). Lane v. Corbitt Cypress Co., 215 Ga.App. 388, 389, 450 S.E.2d 855 (1994). See also Steptoe v. Auto-Owners Ins. Co., 210 Ga.App. 756, 758(3), 437 S.E.2d 626 (1993) (physical precedent); Nodvin v. West, 204 Ga.App. 280, 281(1), (2) (419 S.E.2d 120) Farm Bureau was entitled ......
  • Fire & Cas. Ins. Co. of Connecticut v. Government Employees Ins. Co.
    • United States
    • United States Court of Appeals (Georgia)
    • 10 Junio 1994
    ...so specifying. Terry v. State Farm Mut. Auto. Ins. Co., 205 Ga.App. 224, 422 S.E.2d 212 (1992); Steptoe v. Auto-Owners Ins. Co., 210 Ga.App. 756, 757(1), 437 S.E.2d 626 (1993). FCICC urges us to follow the rule of statutory construction set forth in Gold v. Pioneer Fund, Inc., 107 Ga.App. 8......

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