Weis v. International Ins. Co., Inc.
| Decision Date | 28 March 1983 |
| Docket Number | Civ. A. No. C82-1539A. |
| Parties | Helen M. WEIS, Plaintiff, v. INTERNATIONAL INSURANCE COMPANY, INC., Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
Stroud P. Stacy, Stacy & Sanders, Decatur, Ga., for plaintiff.
Clayton H. Farnham, Richard O'Donnell, Swift, Currie, McGhee & Hiers, Atlanta, Ga., for defendant.
This diversity action on an insurance contract is presently before the Court on defendant insurer's motion for summary judgment. Defendant argues that plaintiff failed to notify it immediately of her alleged theft loss and thus did not satisfy one of the conditions precedent to recovery under the terms of the policy. Plaintiff responds that (1) defendant waived the immediate notice requirement; and (2) in any case, the question of whether she complied with the immediate notice provision is one of fact for the jury.
The undisputed facts material to the resolution of defendant's summary judgment motion are briefly set out below.
On October 7, 1981, plaintiff Helen M. Weis was informed by the manager of the Suburban Storage Mini-Warehouse that the two storage units she rented there had been broken into and a large amount of the property stored therein had been stolen. On the same day Mrs. Weis notified the DeKalb County Police of the theft, and an investigating officer subsequently interviewed both Mrs. Weis and her husband, as well as the managers of Suburban Storage. The officer did not, however, physically inspect the two storage units.
At the time of the theft, Mrs. Weis was the named insured under a homeowner's insurance policy then in force issued by defendant International Insurance Company (International) and obtained through the Fortenberry Insurance Agency (Fortenberry) (Policy No. 216 028865 7). Mrs. Weis, however, did not notify defendant or its agent of the theft until November 6, 1981, when her present attorney, Mr. Stroud Stacy, informed Fortenberry by telephone. Mr. Stacy mailed formal written notice to Fortenberry on November 9, 1981, which was received on November 10.
Prior to notifying defendant's agent of the theft, plaintiff had sought counsel from another attorney, Mr. William T. Hudson, on November 3, 1981, concerning a possible suit against Suburban Storage. The possibility that Mrs. Weis's theft loss might be covered by her homeowner's insurance was not raised during her interview with Mr. Hudson. Instead, he simply referred plaintiff to Mr. Stacy. It was during an interview with Mr. Stacy later that same day that Mr. Stacy inquired whether Mrs. Weis owned a homeowner's insurance policy, suggesting that it might cover the theft. Mrs. Weis stated then that it had not occurred to her before that her homeowner's policy might cover the theft from the mini-warehouse storage units.
On November 16, 1981, shortly after it had been notified of the loss, one of defendant's claims representatives, Ms. Sandra Robinson, took a recorded statement from Mrs. Weis regarding the circumstances of the theft. A month later, at defendant's request, Mrs. Weis showed Ms. Robinson the two storage units from which the property had been stolen, as well as the property that remained after the theft. Finally, in compliance with the terms of the insurance policy and at the request of defendant, Mrs. Weis compiled a list of items stolen, their replacement cost and receipts showing purchase price. This information was mailed to defendant over a period of time ranging from November 10, 1981, to March 9, 1982.
On April 6, 1982, defendant's attorney sent plaintiff's attorney a letter informing him that Mrs. Weis's claim was being denied because, inter alia, she had failed to notify defendant of the loss immediately, as required by the terms of the policy. Plaintiff shortly thereafter filed the instant lawsuit, and defendant now raises the same contention in support of its motion for summary judgment.
The provisions of plaintiff's homeowner's insurance policy relevant to the pending motion for summary judgment appear at pages 6 through 8 of the policy under the heading, "SECTION 1 — CONDITIONS." Paragraphs 2 and 8 thereof provide in relevant part:
Defendant argues that plaintiff's failure to notify it of her loss until more than 30 days after she learned of the theft constitutes, as a matter of law, failure to provide the "immediate notice" required by the plain terms of the insurance contract. Accordingly, defendant argues, this suit is barred under paragraph 8 quoted above.
Plaintiff does not dispute that, absent a waiver by defendant, compliance with the immediate notice requirement is a condition precedent to recovery under the policy. She argues, however, that (1) by its conduct defendant waived compliance with the immediate notice provision or, at least, a factual question exists as to whether there was a waiver; and (2) even absent a waiver, a factual question remains as to whether the notice actually given satisfied the immediate notice requirement. Each of these arguments is addressed in turn below.
Plaintiff contends that the following conduct on the part of defendant implies a waiver of the immediate notice provision: (1) interviewing plaintiff shortly after receiving notice of the loss; (2) asking plaintiff to accompany a claims representative to the site of the theft; and (3) requesting that plaintiff submit a proof of loss, as provided for under the terms of the policy, including compilation of lists of the items stolen, their replacement cost and purchase price.
Defendant argues that, pursuant to O.C.G.A. § 33-24-40, these are acts of claims administration that are not to be deemed a waiver of any defense it may have under the terms of the policy. Section 33-24-40 provides:
The Court agrees with defendant that its acts were clearly within the purview of § 33-24-40. See, e.g., McCauley v. Boston Old Colony Insurance Co., 149 Ga.App. 706, 256 S.E.2d 19 (1979); Buffalo Insurance Co. v. Star Photo Finishing Co., 120 Ga.App. 697, 172 S.E.2d 159 (1969); Progressive Mutual Insurance Co. v. Burrell Motors, Inc., 112 Ga.App. 88, 143 S.E.2d 757 (1965).
The cases relied on by plaintiff do not support her position. Both New York Underwriters Insurance Co. v. Noles, 101 Ga. App. 922, 115 S.E.2d 474 (1960), and Cordell v. Metropolitan Life Insurance Co., 54 Ga. App. 178, 187 S.E. 292 (1936), were decided before § 33-24-40 (formerly Ga.Code Ann. § 56-2428) became effective on January 1, 1961. See 1960 Ga.Laws 289, 296; Ga.Code Ann. § 56-115. Accordingly, insofar as these cases may be interpreted as applying a rule contrary to § 33-24-40, they have been superseded and are no longer good law.
The third case cited by plaintiff, Browder v. Aetna Life Insurance Co., 126 Ga.App. 140, 190 S.E.2d 110 (1972), does not even mention § 33-24-40 but relies on Cordell, supra, in finding that the insured's procuring and submitting certain medical information at the insurer's request amounted to a waiver by the insurer of the timeliness of notice. Apart from Browder's failure to consider the effect of § 33-24-40 on the Cordell ruling, its applicability here is also undermined because the Browder court based its finding of a waiver at least in part on the fact that the insurer had denied plaintiff's claim on grounds other than the timeliness of notice, and "an ultimate denial of liability on another ground constitutes a waiver of forfeiture based on lack of timely notice." 126 Ga.App. at 144, 190 S.E.2d 110. Hence Browder is both distinguishable on its facts from the instant case, as well as questionable in its legal conclusion that the insurer's investigation constituted a waiver. Accordingly, this Court finds that it supplies no authority for the proposition that under Georgia law defendant's actions in the instant case implied a waiver of the immediate notice provision of its policy.1
Defendant cites only two cases in direct support of its contention that plaintiff's one month delay in notifying it of her loss was, as a matter of law, a violation of the condition precedent as to notice contained in the policy. The first, Bailey v. First National Fire Insurance Co., 18 Ga. App. 213, 89 S.E. 80 (1916), applied a similar "immediate notice" provision and affirmed a dismissal of the action for failure to provide the requisite notice. However, Bailey is of no precedential value on this issue, because the court's syllabus opinion contains no discussion of the circumstances of the case nor of the basis of its holding. Thus it cannot be determined how late notice was given after the loss occurred, or whether the notice was found deficient because it was untimely or because it was not in writing, as was required by the policy. Without these details the Bailey opinion can provide no guidance in deciding the instant case.
The second case cited by defendant is more helpful. Atlanta International...
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