Davis v. Auto-Owners Insurance

Court of Appeals of Georgia

Davis v. Auto-Owners Insurance

411 S.E.2d 84, 201 Ga. App. 331, 1991 Ga. App. LEXIS 1355

CourtCourt of Appeals of Georgia

DecidedSeptember 13, 1991

DocketA91A1077

StatusPublished

This text of 411 S.E.2d 84 (Davis v. Auto-Owners Insurance) 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.

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Davis v. Auto-Owners Insurance, 411 S.E.2d 84, 201 Ga. App. 331, 1991 Ga. App. LEXIS 1355 (Ga. Ct. App. 1991).

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Opinion

Carley, Presiding Judge.

Appellant-plaintiff filed a claim for no-fault income benefits pursuant to an automobile liability insurance policy issued by appelleedefendant. When appellee denied the claim, appellant initiated the instant action to recover not only those benefits, but also statutory penalties, attorney’s fees, and punitive damages. Appellant appeals from the trial court’s order granting appellee’s motion for summary judgment.

OCGA § 33-34-4 (a) (2) (B) provides for no-fault benefits for “the loss of income or earnings. . . .” It is undisputed that, at the time of his injury, appellant derived his income or earnings from “store [d] salvageable metal on [his] property” which he sold “in Atlanta when [he was] able to obtain transportation.” According to appellant, he “now possesses] scrap metal in [his] salvage yard sufficient to make several more trips to Atlanta but [he is] unable to do so because of [his] physical disability.” Appellant urges that this evidence sufficiently demonstrates that he has suffered a compensable “loss of income or earnings” and that the trial court erred, therefore, in granting summary judgment in favor of appellee.

[332]*332Decided September 13, 1991 Reconsideration denied September 27, 1991 Joseph M. Todd, for appellant. Cannon & Meyer Von Bremen, William E. Cannon, Jr., for appellee.

When a claimant is seeking to recover no-fault income benefits pursuant to OCGA § 33-34-4 (a) (2) (B) and he is paid periodically by the job rather than regularly at a fixed rate, he must “show that he had ‘. . . jobs waiting for him at the times he was unable to work [and] . . . what they were, [and] that . . . he did not have the opportunity later to do these yo6s[.]. . [Cit.]” (Emphasis supplied.) State Farm Mut. Ins. Co. v. Moss, 152 Ga. App. 84, 85 (2) (262 SE2d 248) (1979). Obviously, appellant will have the opportunity later to sell such scrap metal as he already possesses and stores in his salvage yard. Construing the evidence most favorably for appellant, he has suffered, at most, a delay in such income or earnings as he derives from his inventory of scrap metal, rather than a compensable loss of any income or earnings. Accordingly, the trial court correctly granted summary judgment in favor of appellee.

Judgment affirmed.

Beasley and Andrews, JJ., concur.

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Carley, Presiding Judge.

Appellant-plaintiff filed a claim for no-fault income benefits pursuant to an automobile liability insurance policy issued by appelleedefendant. When appellee denied the claim, appellant initiated the instant action to recover not only those benefits, but also statutory penalties, attorney’s fees, and punitive damages. Appellant appeals from the trial court’s order granting appellee’s motion for summary judgment.

OCGA § 33-34-4 (a) (2) (B) provides for no-fault benefits for “the loss of income or earnings. . . .” It is undisputed that, at the time of his injury, appellant derived his income or earnings from “store [d] salvageable metal on [his] property” which he sold “in Atlanta when [he was] able to obtain transportation.” According to appellant, he “now possesses] scrap metal in [his] salvage yard sufficient to make several more trips to Atlanta but [he is] unable to do so because of [his] physical disability.” Appellant urges that this evidence sufficiently demonstrates that he has suffered a compensable “loss of income or earnings” and that the trial court erred, therefore, in granting summary judgment in favor of appellee.

[332]*332Decided September 13, 1991 Reconsideration denied September 27, 1991 Joseph M. Todd, for appellant. Cannon & Meyer Von Bremen, William E. Cannon, Jr., for appellee.

When a claimant is seeking to recover no-fault income benefits pursuant to OCGA § 33-34-4 (a) (2) (B) and he is paid periodically by the job rather than regularly at a fixed rate, he must “show that he had ‘. . . jobs waiting for him at the times he was unable to work [and] . . . what they were, [and] that . . . he did not have the opportunity later to do these yo6s[.]. . [Cit.]” (Emphasis supplied.) State Farm Mut. Ins. Co. v. Moss, 152 Ga. App. 84, 85 (2) (262 SE2d 248) (1979). Obviously, appellant will have the opportunity later to sell such scrap metal as he already possesses and stores in his salvage yard. Construing the evidence most favorably for appellant, he has suffered, at most, a delay in such income or earnings as he derives from his inventory of scrap metal, rather than a compensable loss of any income or earnings. Accordingly, the trial court correctly granted summary judgment in favor of appellee.

Judgment affirmed.

Beasley and Andrews, JJ., concur.

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411 S.E.2d 84, 201 Ga. App. 331, 1991 Ga. App. LEXIS 1355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-auto-owners-insurance-gactapp-1991.

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