DocketNumber: A19A0547
Citation Numbers: 830 S.E.2d 235, 350 Ga. App. 734
Judges: Reese
Filed Date: 6/21/2019
Status: Precedential
Modified Date: 7/29/2022
*734Beryl Taylor appeals from the trial court's grant of summary judgment to the Government Employees Insurance Company ("GEICO"), her uninsured motorist carrier. Taylor contends that the trial court erred in finding that there was no evidence of GEICO's frivolous or unfounded refusal to pay her demand for the $ 25,000 limit of her uninsured motorist policy and, thus, she was not entitled to bad faith penalties under OCGA § 33-7-11 (j). For the reasons set forth infra, we affirm.
*236Viewing the evidence in the light most favorable to Taylor,
*735Edwards's insurance carrier tendered the limits of his policy - $ 25,000 - to Taylor on March 3, 2015. In consideration, Taylor signed a limited release of Edwards's liability.
At the time of the collision, Taylor held an uninsured motorist policy ("policy") with GEICO that had a $ 25,000 coverage limit. On March 3, 2015, Taylor sent a demand letter to GEICO, pursuant to OCGA § 33-7-11, demanding the full amount of benefits under the policy. According to the letter, Taylor had "incurred more than $ 20,800.00 in current medical expenses and lost wages and will incur future medical expenses related to her back and neck herniations . Although [Taylor] has endured more than ten months of physical therapy and objective testing, she continues to experience back and neck pain and will require future medical treatment ."
On March 10, 2015, a GEICO claim examiner, Elizabeth Saucillo, received the demand letter and began her investigation of the claim. Based upon her investigation and calculations, and after consulting with her supervisor, on March 30, Saucillo contacted Taylor's attorney in response to the demand letter and offered Taylor $ 750 as an initial offer to settle. Taylor rejected the offer out-of-hand, did not make a counteroffer, and refused to negotiate further with GEICO. A few days later, on April 10, 2015, Taylor filed suit against Edwards to establish the amount of her damages ("underlying case"). The underlying case proceeded to trial in December 2016, and a jury ultimately awarded Taylor $ 120,131.97. Based upon the jury verdict, GEICO paid Taylor the limits of the policy, $ 25,000.
Then, on January 2, 2017, Taylor filed suit against GEICO (the "bad faith claim"), asserting that GEICO's failure to pay her $ 25,000 within 60 days of her demand letter constituted bad faith as a matter of law, and seeking a 25 percent bad faith penalty and attorney fees under OCGA § 33-7-11 (j). OCGA § 33-7-11 (j) provides, in relevant part, as follows:
If the insurer shall refuse to pay any insured any loss covered by this Code section within 60 days after a demand has been made by the insured and a finding has been made that such refusal was made in bad faith,[4 ] the insurer shall *736be liable to the insured in addition to any recovery under this Code section for not more than 25 percent of the recovery and all reasonable attorney's fees for the prosecution of the case under this Code section. The question of bad faith, the amount of the penalty, if any, and the reasonable attorney's fees, if any, shall be determined in a separate action filed by the insured against the insurer after a judgment has been rendered against the uninsured motorist in the original tort action.
GEICO answered Taylor's complaint and moved for summary judgment, asserting that there was no evidence to support a finding that its refusal to pay Taylor the $ 25,000 policy limit was made in bad faith or was otherwise frivolous or unfounded.
After conducting a hearing on August 21, 2018,
In Taylor's sole allegation of error, she contends that the trial court erred in granting summary judgment to GEICO on her claim for bad faith penalties, arguing that a jury issue existed as to whether there was a frivolous or unfounded refusal to pay by GEICO. According to Taylor, the trial court erred in basing its denial of her claim for bad faith penalties "solely on [GEICO's] averment that it fairly evaluated [Taylor's] claim." These arguments lack merit.
Penalties for bad faith are not authorized where the insurance company has any reasonable ground to contest the claim and where there is a disputed question of fact. Ordinarily, the question of bad faith is one for the jury. However, when there is no evidence of unfounded reason for *737the nonpayment, or if the issue of liability is close, the court should disallow imposition of bad faith penalties. Moreover, the mere fact of nonpayment is not evidence of bad faith, nor is any burden thereby cast on the insurer to prove good faith. Rather, bad faith is shown by evidence that under the terms of the policy upon which the demand is made and under the facts surrounding the response to that demand, the insurer had no good cause for resisting and delaying payment. In addition, a defense going far enough to show reasonable and probable cause for making it would vindicate the good faith of the company as effectually as would a complete defense to the action.7
In this case, the record does not support Taylor's argument that the only evidence to support the court's finding that GEICO did not act in bad faith was GEICO's "averment that it fairly evaluated [Taylor's] claim." Instead, the undisputed evidence showed that Saucillo, an experienced GEICO claim examiner, began her investigation of the claim on March 10, 2015, the day she was assigned Taylor's case. As part of her investigation, Saucillo obtained information about the collision and Taylor's settlement with Edwards; contacted Taylor's employer and verified that Taylor had incurred $ 2,661.13 in lost wages; requested that Taylor provide a recorded statement;
Consequently, the record does not support Taylor's argument that GEICO avoided bad faith penalties merely by asserting "that it [had] fairly evaluated [Taylor's] claim." More importantly, Taylor has not identified what else, if anything, Saucillo or GEICO should have done - based on the information available to GEICO at that time - to avoid liability for bad faith penalties, other than paying Taylor the full $ 25,000 policy limit within the 60-day demand period.
Taylor suggests, however, that her medical records proved that her damages far exceeded Saucillo's calculations and settlement offer, so GEICO must have acted in bad faith by forcing Taylor to go to trial in the underlying case, instead of paying her $ 25,000 under the policy pursuant to her demand.
As shown above, Taylor's demand letter stated that Taylor had "endured more than ten months of physical therapy and objective testing," that she "continue[d] to experience back and neck pain and will require future medical treatment[,]" and that she "will incur future medical expenses related to her back and neck herniations."
Still, Taylor argues that, despite the evidence outline above, the fact that the jury awarded her significantly more than GEICO's $ 25,000 policy limit proved that GEICO's failure to pay her the $ 25,000 in benefits within the 60-day period following her demand constituted "bad faith as a matter of law [.]" However, Taylor has failed to cite to any evidence in the record or legal authority in support of this argument.
Moreover, there is no trial transcript in the record to show what evidence Taylor presented at trial in the underlying case to support the jury's award. This is especially significant because the complaint against GEICO in the instant case avers that Taylor obtained the "trial deposition testimony" of a physician on December 7, 2016, in which the physician opined that Taylor's disc herniations were "a direct result of the collision[,]" and that she presented such testimony at trial in the underlying case.
Consequently, given the undisputed evidence of GEICO's investigation following receipt of Taylor's demand letter and the medical records that were available to GEICO at the time of that demand, the trial court did not err in finding that there was no evidence to support bad faith penalties against GEICO under OCGA § 33-7-11 (j). As a result, the trial court properly granted summary judgment to GEICO.
Judgment affirmed.
Miller, P. J., and Rickman, J., concur.
See Flynt v. Life of the South Ins. Co. ,
Edwards is not a party to the instant appeal.
(Emphasis in original.)
When a bad faith claim is made pursuant to OCGA § 33-7-11 (j), "[t]he insurer's bad faith, if any, in failing to pay, would be that involved in not paying within 60 days of the demand." Lewis v. Cherokee Ins. Co. ,
See Flynt ,
Taylor did not designate in her notice of appeal that a transcript of the summary judgment hearing was to be included in the appellate record.
American Safety Indem. Co. v. Sto Corp. ,
Taylor never provided a recorded statement to GEICO.
(Emphasis omitted.)
Contrary to Taylor's suggestion in her brief that the undisputed evidence shows that the collision caused the problems with her discs, there is no expert or other competent evidence in the record to support such a finding.
See Court of Appeals Rules 25 (c) (2) ("Any enumeration of error that is not supported in the brief by citation of authority or argument may be deemed abandoned."); 25 (c) (2) (i) ("Each enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of a specific reference, the Court will not search for and may not consider that enumeration."); see also Guilford v. Marriott Intl. ,
Although the physician's deposition is not in the record, there are medical records from four office visits with the physician by Taylor between June 12, 2014, and October 9, 2014. However, the physician did not state in those records that Taylor's herniated discs (or any other neck or back problem) had been caused by the collision.
See generally McClaskey v. Jiffy Lube ,
See Isbell v. Credit Nation Lending Svc., LLC ,