Modestino v. Allstate Insurance

188 S.E.2d 830, 125 Ga. App. 665, 1972 Ga. App. LEXIS 1439

• Court: Court of Appeals of Georgia
• Decided: March 8, 1972
• Docket: 46684
• Status: Published

Opinions

Bell, Chief Judge.

1. The appellant apparently through inadvertence attached her argument and citation of authority to the enumeration of errors rather than incorporating it in Part II of her brief. See Rule 18 (c) (2). Under these circumstances, this court does not consider that the enumerations of error have been abandoned.

2. The plaintiff here, suing the defendant insurer for damage by hailstorm to the roof of a building covered under this policy, alleged in an affidavit opposing the defendant’s motion for summary judgment that the damage was not discovered until a heavy rain fell which was some weeks after the hailstorm; that she then, and within 30 to 60 days from the date of the hailstorm, gave notice to a named agent from whom she had purchased the policy and who was the only person connected with the defendant corporation with whom she had had any dealings; that the agent "told her he would have the matter handled for her” and that thereafter several adjusters of the defendant corporation and a roofing supplier at their behest examined and tested the roof.

The policy provides in part: ". . . within 60 days after the loss, unless such time is extended in writing by this Company, the insured shall render to this Company a proof of loss, signed and sworn to by the insured. . . No suit or action on this policy for the recovery of any claim shall be sustainable unless all the requirements of this policy shall have been complied with. . .”

The defendant’s motion for summary judgment is based on the sole ground that no proof of loss was filed or waived, nor was the loss reported immediately or in writing. Affidavits of the defendant’s property loss supervisor and an employee show that the latter received notice by telephone on August 3, 1970, and "that neither she nor Allstate Insurance Company had received any other notice of said loss which is now claimed to have occurred on March 31, 1970.” So much of the affidavit as recited that Allstate Insurance Company had received no other notice is a conclusion beyond the competence of the affiant’s testimony. Burton v. National Indem. Co., 123 Ga. App. 402 (181 SE2d 107). There is no affidavit which would establish that the person plaintiff swears she notified was not in fact notified or was not an agent with real or apparent authority to receive notice. The plaintiff shows that the notice resulted in action because of the fact that an adjuster and a roofing supplier examined the roof on behalf of the defendant. This latter, of course, does not of itself constitute a waiver of proof of loss. Code Ann. § 56-2428 (3). But taken in connection with the assurance of the agent Dickson that he would handle the matter for the plaintiff and the presumption in Georgia that an adjuster sent to adjust a loss has the authority to waive proof of loss (Aetna Cas. &c. Co. v. Sampley, 108 Ga. App. 617, 623 (134 SE2d 71)), there are matters here which require jury resolution. Was the loss promptly reported on discovery? Did Dickson have apparent authority to "handle the matter” for the plaintiff? Did he in fact make this assurance to her, and, if so, would not good faith at least require that he inform her that another act (obtaining a proof of loss form, filling it out and returning it) remained to be performed before the insurer became liable under the terms of the policy? Did Dickson send out the insurance adjusters and the roofing supplier? For whom were they acting? Did this course of dealing cause the plaintiff to believe that she need not get out her insurance contract and read the fine print in • order to ascertain whether she had in fact done what was required of her? The benefit of all reasonable doubts arising from these questions must be given to the plaintiff (Cotton States Mut. Ins. Co. v. Proudfoot, 123 Ga. App. 397 (181 SE2d 305)) and it cannot he said as a matter of law that nothing remains for jury determination.

Argued November 1, 1971 Decided March 8, 1972.

The trial court erred in granting the defendant’s motion for summary judgment.

Judgment reversed.

Jordan, P. J., Deen, Evans and Clark, JJ., concur. Hall, P. J., Eberhardt, Pannell and Quillian, JJ., dissent. James F. Becton, for appellant. Kennedy & Sognier, John W. Sognier, for appellee.