Pacific Employers Insurance v. Peck

200 S.E.2d 151, 129 Ga. App. 439, 1973 Ga. App. LEXIS 1027

• Court: Court of Appeals of Georgia
• Decided: June 28, 1973
• Docket: 48128
• Status: Published

Opinions

Eberhardt, Presiding Judge.

William F. Peck, regularly employed by Gainesville Machine Company to drive a truck, was driving one of the company trucks on a return trip from Arkansas where certain machinery had been delivered and the truck, without any obvious cause or reason, turned from the road and went up an embankment then down and stopped. A witness who was following saw it, and stopped at the truck, observing that Peck was "gasping for breath.” An ambulance attendant testified that he was obviously dead when they arrived for taking Peck to a hospital, and at the hospital he was dead on arrival.

A doctor who examined him testified that while he had some superficial injuries, he did not relate the employee’s death to any accidental cause but to a heart attack,¹ and another physician testified that the most probable cause of his death was a myocardial infarction,² though no autopsy was performed and that would be the only means of making an absolute determination as to cause.

The insurance carrier twice requested an autopsy, but the employee’s widow refused to allow it.

A hearing was held before the board for determining whether the matter was compensable. In the findings and award of the full board it is asserted that "the evidence is insufficient to show the cause of this accident and we are unable to determine whether deceased’s accident was triggered by illness, falling to sleep, or some mechanical defect in the vehicle, and we conclude that his death was caused by an accident which arose out of and in the course of his employment and is therefore compensable.”

The board then by a two-member ruling, one member dissenting, proceeded to find that the matter "was defended without reasonable grounds” and assessed attorney fees against the insurer, one member dissenting as to this.

On appeal to the superior court the award was affirmed, but the court declined to assess further attorney fees for the appeal which were sought on the ground that the appeal was frivolous and unfounded.

On appeal to this court the enumerations of error deal only with the attorney fees assessed by the board. Held:

While the matter of whether the employer of the insured has defended a claim without reasonable grounds and is thus liable for attorney fees under Code Ann. § 114-712 is a factual issue for determination by the board, Meeks v. Travelers Ins. Co., 119 Ga. App. 569 (167 SE2d 927); McCoy v. J. D. Jewell, Inc., 123 Ga. App. 175 (179 SE2d 654), the finding that the matter was defended without reasonable grounds must be supported by the evidence, and there must be supporting evidence upon which to make the finding, just as is the case of other findings upon which the award is made. "Findings of fact on which the award in a workmen’s compensation case is based must be supported by testimony. Bituminous Cas. Corp. v. Chambers, 84 Ga. App. 295 (66 SE2d 196).” Aetna Ins. Co. v. Jones, 125 Ga. App. 471 (1) (188 SE2d 180). When the finding rests upon "pure speculation and conjecture on the part of the deputy director [or the board] [a]n award either denying or granting compensation on such basis is not authorized.” Frith v. Liberty Mutual Ins. Co., 107 Ga. App. 285, 289 (129 SE2d 812).

In making the determination of whether the matter has been defended without reasonable grounds the board may, of course, consider the whole of the evidence, and should do so.

We have examined it ourselves, and we conclude that there was ample ground for making a defense, viz., whether the employee’s death resulted from disease, as is indicated in the opinions of the doctors who testified, and whether the accident thus was occasioned by the heart attack, rather than the heart attack resulting from the accident. In this connection see Travelers Ins. Co. v. Maddox, 118 Ga. App. 596 (164 SE2d 850); Brown Transport Co. v. Blanchard, 126 Ga. App. 333 (190 SE2d 625).

The evidence made a serious issue as to whether the employee’s death was compensable, and the employer or the insurer was entitled to defend without being penalized for doing so. Dunn v. American Mut. &c. Co., 64 Ga. App. 509 (13 SE2d 902); Commonwealth Ins. Co. v. Arnold, 114 Ga. App. 835 (2) (152 SE2d ). "The evidence having demanded a finding that the claim was defended upon a reasonable ground,” the claimant was not entitled to an award of attorney fees. LaFavor v. Aetna Cas. & Sur. Co., 117 Ga. App. 873 (2) (162 SE2d 311). It is not necessary that the defense presented be such that the award may deny compensation. "A defense going far enough to show reasonable and probable cause for making it, would vindicate the good faith of the company as effectually as would a complete defense to the action.” Interstate Life &c. Co. v. Williamson, 220 Ga. 323, 325 (138 SE2d 668). "No man is bound to forego litigation at the expense of yielding rights apparently well founded . . .” Tift v. Townes, 63 Ga. 237, 242 (3). "Any rule or principle which would deny to the company the right of full and free litigation in such a case as this would deny it in any case.” Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 815 (12 SE 18).

Argued May 2, 1973 Decided June 28, 1973 Rehearing denied July 19, 1973 Smith, Cohen, Ringel, Kohler, Martin & Lowe, Williston C. White, for appellants.

We think the opinions of the doctors who testified disclose that reasonable grounds for defending the matter did exist and were presented. While, in view of other evidence presented by the claimant, it may very well be that the award of compensation was authorized, it was not demanded. The board did not accept the defense made and awarded compensation, but it was not an unreasonable or unfounded defense.

Attorney fees may not be awarded where the matter was closely contested on reasonable grounds. Gulf Life Ins. Co. v. Moore, 90 Ga. App. 791, 798 (84 SE2d 696). And it is not essential that the defendant prevail if there is a reasonable basis for its defense. Interstate Life & Accident Ins. Co. v. Williamson, 220 Ga. 323, 325 (138 SE2d 668); Gulf Life Ins. Co. v. Howard, 110 Ga. App. 76, 79 (3) (137 SE2d 749).

The finding of the board that the defense was made without reasonable grounds is without evidence to support it, is error, and that portion of the judgment affirming the award of attorney fees is reversed.

Judgment reversed.

Bell, C. J., Hall, P. J., Pannell, Quillian and Clark, JJ., concur. Deen and Stolz, JJ., dissent. Evans, J., dissents but does not agree with all that is said in Judge Stolz’s dissent. Greer, Sartain & Carey, Jack M. Carey, for appellee.

1 Dr. Kelly S. Segars, who examined the deceased shortly after the fatal injury testified: "Q. Doctor, on your examination of Mr. Peck, did you find evidence that Mr. Peck died of any physical injury? A. I conducted a superficial examination and did not find any evidence of an injury severe enough to have caused his death . . . Q. What examination did you perform? A. Head, neck and chest. Q. Did you find any marks on the body in that area? A. As I recall, there is nothing in the record, there was (sic) some superficial abrasions on the forehead. Q. Are you stating that he did not die of an injury? A. No, I’m not stating that he did not die of an injury. It is possible that he could have died from an internal injury, but the nature of the injury was such that I could not determine that from the examination performed. Q. Is it your determination, then, that you cannot professionally determine his cause of death? A. That is correct ... I made no X-Rays and performed no autopsy. Q. Doctor, in the absence of any findings of physical injury and in a man in the late forties and early fifty age group, do you find the most likely cause of death is a heart attack or stroke? A. I will say that the most likely cause of death would be heart attack, not a stroke.”

2 Dr. John T. Godwin, testifying as an expert, on being asked a hypothetical question as to his opinion of the cause of death, the known facts concerning the circumstances of the fatal injury being given: "Q. All right, doctor, if you have an opinion as to the most probable cause of death, would you state what that opinion is? A. Well, there are several reasons why one may die unexpectedly and suddenly as this man did, and assuming as you have indicated that the physician did not find evidence of an external injury, then the most likely cause of death would be an acute myocardial infarction or acute coronary occlusion. There are other conditions which may produce the same type of sudden unexpected death, such as pulmonary embolus, a ruptured aneurysm, either within the thorax or the brain, or cerebral hemorrhage is another example, but generally an acute coronary occlusion would be the first consideration. Q. Is that what we laymen know as a heart attack? A. Yes .. .(After some cross examination) Q. So as a matter of fact, based upon what we’ve said here today, is it your opinion or is it not your opinion that Mr. Peck either died from injuries received in the wreck or from natural causes? A. I would have to have more evidence to conclude that this was due to injury.”