State Farm Mutual Automobile Insurance v. Sills

430 S.E.2d 32, 208 Ga. App. 184, 93 Fulton County D. Rep. 887, 1993 Ga. App. LEXIS 479

• Court: Court of Appeals of Georgia
• Decided: February 24, 1993
• Docket: A92A1711
• Status: Published

Opinion

Pope, Chief Judge.

On September 9, 1990, plaintiff Barbara Sills’ husband was struck and killed by a truck. On June 21, 1991, plaintiff filed suit against defendant State Farm Mutual Automobile Insurance Company seeking to recover, inter alia, attorney fees, punitive damages and a 25 percent penalty under former OCGA § 33-34-6. On February 4, 1992, State Farm filed a partial motion for summary judgment contending that the October 1, 1991 repeal of the Georgia Motor Vehicle Accident Reparations Act (No-Fault Act), of which OCGA § 33-34-6 was a part, precluded plaintiff’s recovery of penalties, punitive damages and attorney fees under that section. The trial court denied State Farm’s motion, but granted a certificate of immediate review. This appeal follows our grant of State Farm’s application for interlocutory appeal.

“[T]his court has recently held that, in the absence of a contractual term in the policy providing for bad faith damages, there can be no post-repeal recovery of penalties, attorney fees, or punitive damages for an insurer’s bad faith failure to pay under the repealed No-Fault Act. See Terry v. State Farm &c. Ins. Co., 205 Ga. App. 224 (422 SE2d 212) (1992). Although the repeal is not retroactive with respect to coverage, it is retroactive with respect to available remedies. Id.” Green v. State Farm Ins. Cos., 206 Ga. App. 478, 481 (2) (426 SE2d 3) (1992). Consequently, the trial court’s denial of State Farm’s motion for partial summary judgment must be reversed. See also Khosravi v. Aetna Cas. &c. Co., 206 Ga. App. 481 (425 SE2d 905) (1992).

Judgment reversed.

Corley, P. J., and Johnson, J., concur. Berrien L. Sutton, for appellees.