Boston-Old Colony Insurance v. Warr

193 S.E.2d 624, 127 Ga. App. 364, 1972 Ga. App. LEXIS 888

• Court: Court of Appeals of Georgia
• Decided: September 20, 1972
• Docket: 47057
• Status: Published

Opinions

Hall, Presiding Judge.

In an action to collect on an automobile collision insurance policy, the defendant appeals from the award of interest, penalty and attorneys’ fees.

The plaintiff had purchased a new 1969 Cadillac on June 30, 1969. It was damaged in a collision on August 12, 1969, at which time it had been driven 2,604 miles. He made a claim on his insurance carrier in October for the value of a new automobile. The defendant inspected the damaged car and tendered a draft for the estimated repair cost which was several thousand dollars less than the cost of replacement. The plaintiff refused the tender and brought this action for an amount which was the list price of a new 1970 Cadillac, minus the amount he had received for his damaged car, minus the $50 deductible of his policy. The jury returned a verdict for a sum close to the plaintiff’s claim, plus interest from the date of the occurrence, a 12% penalty and $1,000 for attorneys’ fees.

1. The defendant contends that the interest, if allowable at all, should only begin on the date of the verdict as the amount was not liquidated until then. However, when an insurance company admits liability in some amount, interest may be had on that amount from the date of the admission of liability. Fireman’s Ins. Co. v. Oliver, 53 Ga. App. 638 (186 SE 706). Accordingly, the plaintiff here would be entitled to interest on the $2,208.10 tendered by the defendant, from November 10, 1969. That part of the judgment representing interest is affirmed with direction that all interest recovered in excess of the amount authorized above be written off.

2. The court erred in authorizing the jury to award a penalty and attorneys’ fees for bad faith refusal to pay. The evidence on the extent of damages was conflicting and did not demand a finding for the plaintiff.

"It is elementary that, 'If the evidence is such that a finding in accordance with the contentions of the defendant would have been authorized, a finding of bad faith is not authorized. Royal Ins. Co. v. Cohen, 105 Ga. App. 746, 747 (125 SE2d 709).’ St. Paul Fire &c. Ins. Co. v. Postell, 113 Ga. App. 862, 863 (149 SE2d 864); American Cas. Co. v. Seckinger, 108 Ga. App. 262 (132 SE2d 794); Lincoln Life Ins. Co. of Georgia v. Anderson, 109 Ga. App. 238 (3) (136 SE2d 1); U. S. Fidel. &c. Co. v. Biddy Lumber Co., 114 Ga. App. 358, 359 (151 SE2d 466); U. S. Fire Ins. Co. v. Tuck, 115 Ga. App. 562, 574 (155 SE2d 431). If there is any reasonable ground for contesting the claim there is no bad faith and it is error to award penalty and attorney’s fees. Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 316 (127 SE2d 454); Belch v. Gulf Life Ins. Co., 219 Ga. 823, 828 (136 SE2d 351).” Home Indemnity Co. v. Godley, 122 Ga. App. 356, 363 (177 SE2d 105), cert. den. 122 Ga. App. 905.

Submitted April 7, 1972 Decided September 20, 1972 Rehearing denied October 19, 1972 Fulcher, Hagler, Harper & Reed, Gould B. Hagler, for appellant. Allgood & Childs, Thomas F. Allgood, for appellee.

We therefore direct that the penalty and attorneys’ fees be written off.

Judgment affirmed with direction.

Bell, C. J., Eberhardt, P. J., Deen, Clark and Stolz, JJ., concur. Pannell, J., concurs in the judgment. Quillian and Evans, JJ., dissent.