Benton Express, Inc. v. Royal Insurance Co. of America

457 S.E.2d 566, 217 Ga. App. 331, 95 Fulton County D. Rep. 1529, 1995 Ga. App. LEXIS 441
CourtCourt of Appeals of Georgia
DecidedMarch 31, 1995
DocketA94A1957
StatusPublished
Cited by7 cases

This text of 457 S.E.2d 566 (Benton Express, Inc. v. Royal Insurance Co. of America) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Benton Express, Inc. v. Royal Insurance Co. of America, 457 S.E.2d 566, 217 Ga. App. 331, 95 Fulton County D. Rep. 1529, 1995 Ga. App. LEXIS 441 (Ga. Ct. App. 1995).

Opinions

Smith, Judge.

Benton Express, Inc. brought a multi-count action against its insurers, Royal Insurance Company of America and Royal Indemnity Company (collectively called “Royal”), seeking a declaration of its liability for additional premiums under its insurance policies and asserting claims for relief based on breach of contract, negligence, breach of the duty of good faith, and violation of the covenant of good faith and fair dealing.1 Benton sought compensatory and punitive damages. Royal answered and counterclaimed against Benton for breach of contract and bad faith.2 At the hearing on the motion, the trial court granted Royal’s motion for summary judgment from the bench. In a nunc pro tunc order entered several days later, the trial court corrected the amount of the judgment. Benton appeals.

Royal provided insurance coverage for Benton, a trucking company, for many years. During the time period relevant to this appeal, [332]*332Royal provided workers’ compensation and truckers’ commercial liability insurance coverage to Benton for claims up to $100,000 under retrospective premium insurance policies. Under such policies, the insurer adjusts and handles claims against the insured and later charges the insured a premium based upon the claims actually adjusted and paid. All claims over $100,000 were covered under traditional liability policies. To calculate the premium, Royal estimated the value of the claim and Benton’s potential liability and established a “reserve” in that amount. It then charged Benton the amount of the reserve. In addition, it charged Benton 14 percent of the established reserve and a premium tax based on the amount of the reserve. If a claim was ultimately concluded for an amount less than the reserve, Royal credited or refunded the difference. The additional charges were not refunded. If, on the other hand, the reserve needed to be increased, Royal would bill Benton for the additional reserve and the requisite charges based on that additional reserve.

In this suit, Benton contended Royal did not properly investigate or handle claims, that it settled claims unreasonably, overpaying claimants, and that it systematically “over-reserved,” resulting in excessive unrefunded charges to Benton. In Count 1, the complaint as amended sought a declaration of the rights and duties of the parties. Count 2 alleged breach of contract; Count 3 alleged negligence; Counts 4 and 5 alleged bad faith; Count 6 alleged wilful misconduct and fraud and sought punitive damages; and Count 6 sought an accounting. The trial court granted summary judgment on all claims. We conclude the trial court correctly granted summary judgment to Royal on all counts except Count 2.

1. This appeal presents an issue of first impression in Georgia regarding an insurer’s duty of acting in good faith in dealing with retrospective premium policies.

This type of underwriting has both advantages and disadvantages to the insurer. A disadvantage is that if the insured is displeased with the retrospective premium requested, as occurred in this case, the insured may cancel coverage and use its refusal to pay ongoing retrospective premiums as leverage to force the insurer to lower the premiums, knowing that the insurer must still handle the claims made against the insurer. On the other hand, potential exists for the insurer to overcharge the insured.

Although no Georgia cases have addressed an insurer’s duty to deal with the insured in this situation in good faith, several other jurisdictions have imposed such a duty on the insurer. See, e.g., Nat. Surety Corp. v. Fast Motor Svc., 572 NE2d 1083 (Ill. App. 1991); Deerfield Plastics Co. v. The Hartford Ins. Co., 536 NE2d 322 (Mass. 1989); Transit Cas. Co. v. Topeka Transp. Co., 663 P2d 308 (Kan. App. 1983); Ins. Co. of North America v. Binnings Constr. Co., 288 [333]*333S2d 359 (La. App. 1974). We are persuaded by the reasoning of these cases that because of the potential for conflict of interest, in dealing with retrospective premium policies, a duty is imposed upon the insurer to act reasonably and in good faith.

2. A majority of jurisdictions that have addressed this issue also place the burden upon the insurer to show that it acted in good faith. We agree with Benton and with the view of the majority of jurisdictions that because the insurer is in possession of the documents relating to premium calculation and the settlement of claims, the burden should be placed upon the insurer to show that in setting the retrospective premiums, it complied with its duty to act reasonably and in good faith. Compare The Austin Co. &c. v. Royal Ins. Co., 842 SW2d 608 (Tenn. App. 1992) (duty of good faith exists but burden is on insured to show insurer acted in bad faith).

3. Nevertheless, a review of the record also persuades us that the trial court properly granted summary judgment to Royal in this case on Counts 4, 5 and 6.

Benton originally claimed lack of good faith in settling a large number of cases, and 57 files were originally requested in discovery. By the time of the hearing on Royal’s motion for summary judgment, Benton had reduced its allegations of bad faith to eight cases, all but one of which are workers’ compensation cases. Royal satisfied its burden to show that it acted reasonably and in good faith in these cases through evidence presented in affidavits and deposition testimony. In support of its motion for summary judgment, Royal produced the affidavits of various Royal personnel, including experienced regional claims managers and a senior casualty specialist. This evidence established that these persons were knowledgeable regarding settlement of the particular disputed claims and the setting of reserves. They also testified concerning the factors considered by Royal in setting reserves. Good faith was also demonstrated by Royal’s various efforts on Benton’s behalf to contain costs. Royal also showed it had waived certain challenges to coverage and cancellation penalties and accepted payments from Benton in installments. Regarding the allegation of “over-reserving,” Royal showed it assigned claims to adjusters based upon the severity and complexity of the case, with the most complex cases assigned to the adjusters with the most experience.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... If [334]*334the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

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Benton Express, Inc. v. Royal Insurance Co. of America
457 S.E.2d 566 (Court of Appeals of Georgia, 1995)

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Bluebook (online)
457 S.E.2d 566, 217 Ga. App. 331, 95 Fulton County D. Rep. 1529, 1995 Ga. App. LEXIS 441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benton-express-inc-v-royal-insurance-co-of-america-gactapp-1995.