Equipco International, LLC v. Certain Underwriters at Lloyd's

739 S.E.2d 797, 320 Ga. App. 345, 2013 Fulton County D. Rep. 793, 2013 WL 1137044, 2013 Ga. App. LEXIS 188
CourtCourt of Appeals of Georgia
DecidedMarch 13, 2013
DocketA12A2048
StatusPublished
Cited by3 cases

This text of 739 S.E.2d 797 (Equipco International, LLC v. Certain Underwriters at Lloyd's) 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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Equipco International, LLC v. Certain Underwriters at Lloyd's, 739 S.E.2d 797, 320 Ga. App. 345, 2013 Fulton County D. Rep. 793, 2013 WL 1137044, 2013 Ga. App. LEXIS 188 (Ga. Ct. App. 2013).

Opinion

McFADDEN, Judge.

This appeal concerns whether OCGA § 33-4-7 — which imposes upon the issuer of a motor vehicle liability insurance policy affirmative duties related to adjusting, investigating and settling certain losses — applies to the issuer of a cargo liability insurance policy. The trial court held that it did not, and accordingly it granted summary judgment to Certain Underwriters at Lloyd’s, London (“Underwriters”) in a bad faith claim asserted under OCGA § 33-4-7 by Equipco International, LLC (“Equipco”). We agree with the trial court that the cargo liability insurance policy is not a “motor vehicle liability insurance policy” under OCGA § 33-4-7. Consequently, we affirm the grant of summary judgment to Underwriters. For this reason, we need not address Equipco’s claim that it was entitled to partial summary judgment on another ground.

1. Facts and procedural posture.

On appeal from a grant of summary judgment, we conduct a de novo review of the evidence to determine whether there are any genuine issues of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation omitted.) Inagawa v. Fayette County, 291 Ga. 715 (732 SE2d 421) (2012).

The following facts are not in dispute. Underwriters issued a policy to Steady Rockin Transport, Inc., a motor common carrier. The [346]*346policy provided coverage for Steady Rockin’s “legal liability for cargo ‘in transit.’ ” It stated, in pertinent part:

Coverage is provided for your legal liability for property of others as a common or contract “carrier” under tariff documents, bills of lading, or shipping receipts issued by you. We will pay for “loss” to Covered Property from any of the Covered Causes of Loss, for which you are legally obligated to pay, up to our limit of liability for this coverage. . . . Covered Property . . . means lawful goods or merchandise, the property of others as described in tariff documents, bills of lading, or shipping receipts issued by you, while in your custody and control.

The policy defined a “carrier” to mean “contract or public truckmen, motor transportation companies, and any connecting public truck-men or motor transportation company of the above.” It defined “covered causes of loss” to mean “risks of direct physical ‘loss’ to Covered Property except those causes of ‘loss’ listed in the Exclusions.” (Emphasis omitted.) And it defined “in transit” as follows:

Covered Property shipped via a “carrier” shall be considered “in transit” from the time the goods are in the exclusive custody and control of the “carrier” and continuously until the transporting vehicle arrives at the destination premises and are transferred to the exclusive custody and control of the consignee, warehousemen, or receiver.

Equipco hired Steady Rockin to transport an industrial forklift owned by Equipco. The forklift was damaged when Steady Rockin’s driver collided with an overpass. Underwriters denied Steady Rock-in’s claim under the policy for the damage to the forklift and notified Steady Rockin that it was rescinding the policy on the ground that Steady Rockin had made material misrepresentations to Underwriters.

Equipco brought an action for damages to the forklift against Steady Rockin and its driver and purported to include Underwriters as “unnamed parties” in a bad faith claim under OCGA § 33-4-7. It obtained a default judgment against Steady Rockin. Underwriters then moved to dismiss the bad faith claim, and Equipco moved for partial summary judgment against Underwriters on the issue of whether Underwriters could rescind the policy. In the order on appeal, the trial court noted the parties’ agreement to treat Underwriters’ motion as one for summary judgment. The trial court granted [347]*347that motion and, accordingly, did not address Equipco’s cross-motion for partial summary judgment.

2. Underwriters’ motion for summary judgment.

Equipco argues that the trial court erred in granting summary judgment to Underwriters on Equipco’s claim that it was entitled to recovery under OCGA § 33-4-7 because Underwriters acted in bad faith regarding Steady Rockin’s claim under the policy. Generally, “ [b] ad faith claims under the Georgia insurance code... are available only as between insureds and their insurers.” (Citation and punctuation omitted.) J. Smith Lanier & Co. v. Southeastern Forge, 280 Ga. 508, 510 (630 SE2d 404) (2006). But OCGA § 33-4-7 allows third parties to bring bad faith claims directly against insurers in certain limited circumstances. OCGA § 33-4-7 pertinently provides:

In the event of a loss because of injury to or destruction of property covered by a motor vehicle liability insurance policy, the insurer issuing such policy has an affirmative duty to adjust that loss fairly and promptly, to make a reasonable effort to investigate and evaluate the claim, and, where liability is reasonably clear, to make a good faith effort to settle with the claimant potentially entitled to recover against the insured under such policy. . . .

(Emphasis supplied.) OCGA § 33-4-7 (a). It imposes a penalty upon an insurer who breaches this duty, and it allows a third-party claimant, as well as an insured, to seek to recover the penalty against the insurer. OCGA § 33-4-7. See generally Kathryn H. Wade, Actions Against Insurance Companies: Change Provisions Relating to an Insurer’s Liability for Bad Faith Refusal to Pay for Loss Covered by Insurance; Provide for Insurer’s Duties with Respect to Settlement of Motor Vehicle Liability Policy Claims; Provide for a Private Cause of Action for Unfair Claims Settlement Practices in Certain Circumstances, 18 Ga. St. U. L. Rev. 167, 170 (2001) (describing enactment of OCGA § 33-4-7, “which provides a procedure for recovery in a third party motor vehicle property damage claim where the insurer engages in bad faith settlement practices”) (citations omitted).

Equipco’s ability to bring a bad faith claim against Underwriters under OCGA § 33-4-7 turns on whether the term “motor vehicle liability insurance policy,” as used in that Code section, encompasses the cargo liability policy at issue here. In considering this question,

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739 S.E.2d 797, 320 Ga. App. 345, 2013 Fulton County D. Rep. 793, 2013 WL 1137044, 2013 Ga. App. LEXIS 188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/equipco-international-llc-v-certain-underwriters-at-lloyds-gactapp-2013.