State Farm Fire & Casualty Company v. Fuller

Court of Appeals of Georgia

State Farm Fire & Casualty Company v. Fuller

258 S.E.2d 13, 150 Ga. App. 387, 1979 Ga. App. LEXIS 2325

CourtCourt of Appeals of Georgia

DecidedJune 7, 1979

Docket57549

StatusPublished

Cited by5 cases

This text of 258 S.E.2d 13 (State Farm Fire & Casualty Company v. Fuller) 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.

Bluebook

State Farm Fire & Casualty Company v. Fuller, 258 S.E.2d 13, 150 Ga. App. 387, 1979 Ga. App. LEXIS 2325 (Ga. Ct. App. 1979).

Pincite

Opinion

Deen, Chief Judge.

This is an appeal from the dismissal of appellant’s petition for declaratory judgment. State Farm insured a house belonging to Fuller. The house burned and the insured filed proof of loss. The insurer states it has good cause to believe it has a defense to the claim in that the insured intentionally burned the structure and then grossly inflated his claim for damages in order to defraud the company. State Farm is presently investigating under a nonwaiver of rights agreement, and no demand for payment has been made.

It is clear from the above that the insurer is not seeking to avoid "uncertainty and insecurity with respect to the propriety of some future act or conduct in order not to jeopardize [its] interest.” Pendleton v. City of Atlanta, 236 Ga. 479 (224 SE2d 357) (1976). It is also fairly clear that the only thing the plaintiff is unsure of is whether its evidence is sufficient to convince a jury that its insured has committed fraud or arson, since the defense, if substantiated, is of course a complete answer to the problem. This is not the sort of "justiciable issue” with which the declaratory judgment law is involved; its purpose is not simply to second guess a jury. Reliance Ins. Co. v. Brooks Lumber Co., 101 Ga. App. 620 (115 SE2d 271) (1960). Where all rights have accrued, a petition by an insurer seeking merely to determine whether it is liable upon an insurance policy which it issued affords no sufficient basis for declaratory judgment, as the insurer’s position may be presented at such time as suit is entered by the claimant. Provident Life & Acc. Ins. Co. v. United Family Life Ins. Co., 233 Ga. 540 (2) (212 SE2d 326) (1975). In Provident such an action had already been filed. Here, no demand for payment has yet been made. These facts, however, go merely to the timing, and are not the gravamen of the action.

It was not error to dismiss the complaint on motion.

Judgment affirmed.

McMurray, P. J., and Birdsong, J., concur. Shulman, J., not participating. *388 Argued April 3, 1979 Decided June 7, 1979 Rehearing denied June 22, 1979 Greer, Klosik & Daugherty, John F. Daugherty, Michael L. Wetzel, for appellant. Gus L. Wood, for appellee.

Free access — add to your briefcase to read the full text and ask questions with AI

Deen, Chief Judge.

This is an appeal from the dismissal of appellant’s petition for declaratory judgment. State Farm insured a house belonging to Fuller. The house burned and the insured filed proof of loss. The insurer states it has good cause to believe it has a defense to the claim in that the insured intentionally burned the structure and then grossly inflated his claim for damages in order to defraud the company. State Farm is presently investigating under a nonwaiver of rights agreement, and no demand for payment has been made.

It is clear from the above that the insurer is not seeking to avoid "uncertainty and insecurity with respect to the propriety of some future act or conduct in order not to jeopardize [its] interest.” Pendleton v. City of Atlanta, 236 Ga. 479 (224 SE2d 357) (1976). It is also fairly clear that the only thing the plaintiff is unsure of is whether its evidence is sufficient to convince a jury that its insured has committed fraud or arson, since the defense, if substantiated, is of course a complete answer to the problem. This is not the sort of "justiciable issue” with which the declaratory judgment law is involved; its purpose is not simply to second guess a jury. Reliance Ins. Co. v. Brooks Lumber Co., 101 Ga. App. 620 (115 SE2d 271) (1960). Where all rights have accrued, a petition by an insurer seeking merely to determine whether it is liable upon an insurance policy which it issued affords no sufficient basis for declaratory judgment, as the insurer’s position may be presented at such time as suit is entered by the claimant. Provident Life & Acc. Ins. Co. v. United Family Life Ins. Co., 233 Ga. 540 (2) (212 SE2d 326) (1975). In Provident such an action had already been filed. Here, no demand for payment has yet been made. These facts, however, go merely to the timing, and are not the gravamen of the action.

It was not error to dismiss the complaint on motion.

Judgment affirmed.

McMurray, P. J., and Birdsong, J., concur. Shulman, J., not participating. *388 Argued April 3, 1979 Decided June 7, 1979 Rehearing denied June 22, 1979 Greer, Klosik & Daugherty, John F. Daugherty, Michael L. Wetzel, for appellant. Gus L. Wood, for appellee.

Cite This Page — Counsel Stack

Bluebook (online)

258 S.E.2d 13, 150 Ga. App. 387, 1979 Ga. App. LEXIS 2325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-farm-fire-casualty-company-v-fuller-gactapp-1979.

Opinion

Related

Cite This Page — Counsel Stack