State Farm Fire & Casualty Company v. Gosdin

248 S.E.2d 216, 147 Ga. App. 156, 1978 Ga. App. LEXIS 2826

• Court: Court of Appeals of Georgia
• Decided: September 11, 1978
• Docket: 56123
• Status: Published

Opinion

Quillian, Presiding Judge.

Appeal was taken from a judgment denying the plaintiffs motion for a temporary restraining order pending a declaratory judgment action. Held:

1. The appeal is considered by this court under decisions exemplified by Jahncke Serv. v. Dept. of Transp., 137 Ga. App. 179 (223 SE2d 228); Pichulik v. Simpson, 227 Ga. 55 (178 SE2d 860).

2. The plaintiff insurer sought a declaration that it was not liable for a fire loss under a policy of insurance. It was contended that declaratory judgment was necessary to prevent the plaintiff from having imposed upon it bad faith penalty and attorney fees under Code Ann. § 56-1206 (Ga. L. 1960, pp. 289, 502; 1962, p. 712). The trial judge denied the motion for a restraining order on the basis that plaintiffs rights had already accrued.

Unless, as a matter of law, irreparable injury will result to the complainant, we will not reverse the trial judge’s exercise of discretion in denying interlocutory relief. Mitchell v. DeKalb County Bank, 139 Ga. App. 562 (3) (228 SE2d 746). From the present record no abuse was shown.

The plaintiff would not be absolved of the bad faith penalty provided in Code Ann. § 56-1206 merely by the fact that this declaratory judgment action was brought. Cf. Bituminous Cas. Corp. v. Mowery, 145 Ga. App. 45, 50 (244 SE2d 573) and cits. This suit does no more than ask the court to determine whether the plaintiff is liable upon an insurance policy which it issued. Provident Life &c. Ins. Co. v. United Family Life Ins. Co., 233 Ga. 540 (212 SE2d 326).

Argued July 10, 1978 Decided September 11, 1978. Greer, Klosik & Daugherty, Richard G. Greer, M. Scott Barksdale, for appellant. Kemper, Baker & Boswell, Joseph R. Baker, Michael S. Reeves, Donald M. Fain, for appellees.

Judgment affirmed.

Webb and Shulman, JJ., concur.