O.C.G.A. § 33-24-40 (2019)

Annotations

JUDICIAL DECISIONS Fact that insurer has knowledge of loss does not relieve insured of making proof of loss under terms of the policy. Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga. App. 697, 172 S.E.2d 159 (1969). Negotiating for settlement. - Insurer could not enforce a policy provision requiring a policyholder to submit a formal proof of loss within 60 days of the loss and to file suit within 12 months of the loss, since the insurer’s acts in negotiating for settlement led the policyholder to believe that the policyholder would be paid without a suit. Lynn v. Georgia Farm Bureau Mut. Ins. Co., 189 Ga. App. 209, 375 S.E.2d 259 (1988). Insurer’s offer to settle a homeowner’s property damage claim did not waive a residency requirement in the policy or estop the insurer from denying coverage; O.C.G.A. § 33-24-40(3) precluded the settlement offer from being deemed a waiver. Mahens v. Allstate Ins. Co., 447 Fed. Appx. 51 (11th Cir. 2011) (Unpublished). Collection of information and investigation of loss not waiver of policy requirements. - Collection of information or the making of an investigation relative to a loss that may be covered under a policy issued by a company does not work a waiver of the policy requirements and compliance therewith by the insured. Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga. App. 697, 172 S.E.2d 159 (1969). Collection by insurer of information concerning a loss on which it may have

coverage, or an investigation of the circumstances, does not work a waiver of policy requirements as to the giving of notice and the furnishing of proofs of loss. Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga. App. 697, 172 S.E.2d 159 (1969). Provision in a homeowner’s insurance policy stated that an action under the policy had to be brought within one year after the occurrence causing the loss. The insurer did not waive the insurer’s right to enforce this provision by carrying on an investigation of two fires, which totally destroyed the insureds’ premises, for some 16 months after the last fire. The insurer, while the insurer never told the insureds that the insurer would not pay the insureds’ claim, never indicated that the insurer intended to settle the claim prior to or after the insurer completed the insurer’s investigation. American Mut. Fire Ins. Co. v. Coats, 620 F. Supp. 768 (S.D. Ga. 1985). Trial court did not err in granting summary judgment to the insurance association on the insured’s claim for damages relating to the destruction of the insured’s property by fire as the fact that the insurance company did not settle and, instead, insisted on conducting an investigation did not waive the requirement the policy placed on the insured to provide a proof of loss statement. Since the insured did not submit a proof of loss statement and was unquestionably required to do so, the summary judgment grant to the insurance association was proper. Evans v.

Ohio Cas. Ins. Co., 264 Ga. App. 485, 591 S.E.2d 378 (2003). Because an insured was on notice that, pursuant to O.C.G.A. § 33-24-40, the insurer did not waive any provision of a policy merely by investigating the insured’s claim, and because there was no evidence that the insured was induced to delay filing a lawsuit until after the expiration of the one-year-period, the insurer was entitled to summary judgment. Thornton v. Ga. Farm Bureau Mut. Ins. Co., 297 Ga. App. 132, 676 S.E.2d 814 (2009). Waiver of proof based on refusal to pay must be express after filing time expires. - Waiver of the proof-of-loss requirement occurs only when it appears that the refusal to pay (or what amounts to a refusal to pay) occurs within the time period allowed for proof of loss, for nothing short of an express waiver by the insurer can be effective after expiration of the time for performing the condition precedent, i.e., the filing of a proof of loss. McCauley v. Boston Old Colony Ins. Co., 149 Ga. App. 706, 256 S.E.2d 19 (1979). Insurer does not waive the insurer’s right to assert the proof-of-loss requirement by investigating the loss, obtaining an independent appraisal, and entering into negotiations looking toward a possible settlement of the loss or claim after receiving the appellants’ written notice five months after the loss. McCauley v. Boston Old Colony Ins. Co., 149 Ga. App. 706, 256 S.E.2d 19 (1979). Oral notice, and claim’s denial, waives written notice. - If an agent of the insurer is orally notified of a claim by the insured within a reasonable time after the accident, and if at that time the agent denies liability under the policy, then the insurer has waived the right to written notice of the claim, but the agent’s denial must be an unambiguous statement that coverage is not available under the policy. Lathem v. Sentry Ins., 845 F.2d 914 (11th Cir. 1988). Waiver not based on insured’s unilateral assumption. - Waiver cannot be based upon the insured’s own unilateral assumption or expectation that a 38-month delay in notice of a claim would not be enforced against the insured simply

because the insurer did not undertake immediately and definitively to deny coverage on that specific basis, but subjected the claim to the normal administrative formal process before doing so. Brazil v. Government Employees Ins. Co., 199 Ga. App. 343, 404 S.E.2d 807, cert. denied, 199 Ga. App. 905, 404 S.E.2d 807 (1991). Settlement negotiations did not constitute waiver of limitations period. - Insured’s claim against an insurer, alleging a breach of the insured’s insurance contract for failure to pay on a claim that resulted from a theft on the insured’s premises, was properly found barred by the two-year limitations period contained in the insurance policy; the insurer’s settlement negotiations did not lull the insured into believing that the insured did not have to file suit under O.C.G.A. § 33-24-40(3). Stone Mt. Collision Ctr. v. General Cas. Co. of Wis., 307 Ga. App. 394, 705 S.E.2d 163 (2010). No waiver shown in insurance dispute. - Insured failed to demonstrate that the insured was entitled to summary judgment on the basis of waiver or estoppel because the reservation of rights provision was enforceable even as to the insured’s uncooperativeness and there was no basis that the insurer waived the reservation of rights provision. R&G Invs. & Holdings, LLC v. Am. Family Ins. Co., 337 Ga. App. 588, 787 S.E.2d 765 (2016), cert. denied, No. S16C1830, 2017 Ga. LEXIS 144 (Ga. 2017). Insurer not estopped from raising defense. - Even without disclaiming liability and giving notice of the insurer’s reservation of rights, any insurer who merely proceeds to investigate a claim with knowledge of facts which might otherwise constitute a defense to coverage is not estopped from thereafter setting up the defense. Brazil v. Government Employees Ins. Co., 199 Ga. App. 343, 404 S.E.2d 807, cert. denied, 199 Ga. App. 905, 404 S.E.2d 807 (1991). Issues of fact as to whether insurer was estopped from voiding policy for misrepresentation. - In a fire insurance case, the insurer’s assertion that the insurer’s actions were part of a necessary investigation to avoid possible bad faith liability was insufficient to warrant sum-

mary judgment on the issue of estoppel when the insurer denied coverage but failed to give any reason for a period of seven months, renewed the policy, and failed to notify the insured of the insurer’s intent to void the policy; issues of fact existed with regard to detrimental reliance and estoppel. Lee v. Mercury Ins. Co., 343 Ga. App. 729, 808 S.E.2d 116 (2017), cert. denied, No. S18C0518, 2018 Ga. LEXIS 491 (Ga. 2018). Whether clause was waived is question for jury. - If the insurer never denied liability, but continually discussed the loss with the insured with a view toward negotiation and settlement without the intervention of a suit, whether or not this lulled the insured into a belief that the clause in the contract requiring the insured to file suit within 12 months was waived by the insurer can become a disputed question of fact for a jury under appropriate instructions. Edwards v. Atlantic Ins. Co., 203 Ga. App. 608, 417 S.E.2d 410, cert. denied, 203 Ga. App. 906, 417 S.E.2d 410 (1992). Summary judgment was improper since a question of fact remained as to whether the insurance company waived a contractual limitation when, after the limitations period expired, the adjuster informed the insured’s counsel that the insurer might still consider payment. Ogden v. Auto-Owners Ins. Co., 251 Ga. App. 723, 554 S.E.2d 575 (2001) (Unpublished). Waiver of limitation on actions was a question of fact. - Whether insurer’s

conduct reasonably led insured to believe that strict compliance with the insurance policy’s one year limitation provision on loss filings would not be insisted upon was a question of fact for a jury to decide and thus precluded summary judgment. Appleby v. Merastar Ins. Co., 223 Ga. App. 463, 477 S.E.2d 887 (1996). Acceptance and payment of claims. - Fact issues precluded summary judgment with regard to whether an insurer waived a contractual limitations provision by failing to explain coverage fully to the insureds while purporting to do so when the insurer’s accepted and paid claims; O.C.G.A. § 33-24-40 creates no waiver exception or exemption for accepting a claim as covered or making payments on the claim. Thompson v. State Farm Fire & Cas. Co., 264 F. Supp. 3d 1302 (M.D. Ga. 2017). Cited in Progressive Mut. Ins. Co. v. Burrell Motors, Inc., 112 Ga. App. 88, 143 S.E.2d 757 (1965); Modestino v. Allstate Ins. Co., 125 Ga. App. 665, 188 S.E.2d 830 (1972); GEICO v. Gates, 134 Ga. App. 795, 216 S.E.2d 619 (1975); Shield Ins. Co. v. Kitt, 143 Ga. App. 48, 237 S.E.2d 515 (1977); Carpenters Local 1977 v. General Ins. Co. of Am., 167 Ga. App. 299, 306 S.E.2d 383 (1983); Weis v. International Ins. Co., 567 F. Supp. 631 (N.D. Ga. 1983); Commercial Union Ins. Co. v. F.R.P. Co., 172 Ga. App. 244, 322 S.E.2d 915 (1984); Shelter Am. Corp. v. Georgia Farm Bureau Mut. Ins. Co., 209 Ga. App. 258, 433 S.E.2d 140 (1993).

RESEARCH REFERENCES ALR. - Subsequent denial of liability following promise or negotiations as affecting contractual limitation for action upon insurance policy, 3 A.L.R. 218. Incontestable clause as affecting failure to comply with provisions as to proofs of loss, 41 A.L.R. 382. Insurer’s denial of or refusal to allow claim as waiver of right under policy to pay in lump sum or in installments, 94 A.L.R. 1176. Insurer’s assertion, before claim is made, that policy is ineffective as waiver of condition as to notice or proof of disability, 172 A.L.R. 636.

Right of contingent beneficiary to proceeds of life policy upon death of direct or primary beneficiary after death of insured, 172 A.L.R. 642. Insurer’s denial that insured has suffered disability as waiver of requirement that insured furnish periodic proof there, 173 A.L.R. 973. Insurer’s demand for additional or corrected proof of loss as waiver or estoppel as to right to assert contractual limitation provision, or as suspending running thereof, 15 A.L.R.2d 955. Insurer’s admission of liability, offers of settlement, negotiations, and the like, as

waiver of, or estoppel to assert, contractual limitation provision, 29 A.L.R.2d 636. Insurer’s admission of liability, offers of settlement, and negotiations for adjustment or settlement, as waiver of proof of property loss, 49 A.L.R.2d 87. Denial of liability as waiver of proofs of loss required by insurance policy, 49 A.L.R.2d 161. Provisions of burglary or theft policy requiring losses evidenced by ‘‘physical damage to premises,’’ 22 A.L.R.3d 1305. Insurance: necessity and sufficiency of notice of and hearing in proceedings be-

fore appraisers and arbitrators appointed to determine amount of loss, 25 A.L.R.3d 680. Notice or proof of loss under one policy as notice or proof of loss under another provision of same policy or another policy issued by same insurer, 29 A.L.R.3d 856. Nature and extent of insured’s duty to seek retrieval of stolen automobile, 9 A.L.R.4th 405. Liability insurer’s postloss conduct as waiver of, or estoppel to assert, ‘‘no-action’’ clause, 68 A.L.R.4th 389.