Gravely v. Southern Trust Insurance

258 S.E.2d 753, 151 Ga. App. 93, 1979 Ga. App. LEXIS 2441

• Court: Court of Appeals of Georgia
• Decided: September 4, 1979
• Docket: 57762
• Status: Published

Opinions

Underwood, Judge.

This is a suit upon an insurance contract which provides, inter alia: "Suit. No suit or action on this policy for the recovery of any claim shall be sustainable . . . unless commenced within twelve months next after inception of the loss.” "7. Conformity with Statute. The terms of this policy and forms attached hereto, which are in conflict with the statutes of this state wherein this policy is issued are hereby amended to conform to such statutes.”

Plaintiff, having filed suit some eighteen months after the loss, contended that under Queen Tufting Co. v. Fireman’s Fund Ins. Co., 239 Ga. 843 (239 SE2d 27), (1977) reversing 141 Ga. App. 792 (234 SE2d 354) (1977), he had six years to sue pursuant to Code § 3-705, which fixes the period of limitation for actions on simple contracts in writing. The trial court held that Queen was not controlling and granted summary judgment, to the insurer. We affirm.

In Queen the policy provided: " 'No suit or action on this policy for the recovery of any claim shall be sustainable . . . unless . . . commenced within twelve (12) months next after the happening of the loss, unless a longer period of time is provided by applicable statute.’ ” (Emphasis supplied.) This court held that Code § 3-705 was not an "applicable statute” (Queen, supra); the Supreme Court disagreed. Queen, supra. However, we do not regard that ruling as dispositive here because, as seen, the contract in Queen fixed the limitation period at twelve months "unless a longer period of time is provided by applicable statute.” It is thus apparent that the "longer period” was, in fact, the limitation period as a matter of definition under the contract itself, and we subsequently recognized the Supreme Court’s Queen decision as one resulting "under the special language of that insurance contract.” Decatur Federal Savings & Loan Assn. v. York Ins. Co., 147 Ga. App. 797, 798 (250 SE2d 524) (1978).

However, that provision is absent here, and plaintiff cannot take refuge under the instant contract’s "Conformity with Statute” clause. It applies only where the contract and statutes "are in conflict”; and under the cases cited in this court’s Queen decision, supra, none of which were disturbed by the Supreme Court’s handling of that case, the twelve-month limitation period in the instant contract is enforceable and not in conflict with Code § 3-705. Accord, Draughn v. U. S. Fidelity &c. Co., 144 Ga. App. 272 (241 SE2d 52) (1977).

Judgment affirmed.

Deen, C. J., Quillian, P. J., Smith, Banke and Birdsong, JJ., concur. McMurray, P. J., Shulmán and Carley, JJ., dissent. Submitted May 2, 1979 Decided September 4, 1979 James M. Barnes, for appellant. John Avrett, for appellee.