Reconsideration denied July 31, 2014 -- Cert. applied for.
Motor vehicle insurance. Gwinnett State Court. Before Judge Rich.
Larry E. Stewart, for appellant.
Magill Atkinson Dermer, David M. Atkinson, Marian L. Miller, for appellee.
ELLINGTON, Presiding Judge. Phipps, C. J., Barnes, P. J., and McFadden, J., concur. Andrews, P. J., Ray and McMillian, JJ., dissent.
Ellington, Presiding Judge.
Luis Castellanos filed this action in the State Court of Gwinnett County against Travelers Home & Marine Insurance Company to recover uninsured motorist (UM) insurance benefits, statutory penalties for Travelers' alleged bad faith in refusing to pay benefits, and attorney fees. The trial court granted Travelers' motion for summary judgment and denied Castellanos' motion, and he appeals both rulings. For the reasons explained below, we reverse in part, as to the court's grant of summary judgment in favor of Travelers.
Under OCGA § 9-11-56 (c)
[s]ummary judgment is warranted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. We review [328 Ga.App. 675] the grant or denial of a motion for summary judgment de novo, and we view the evidence, and the reasonable inferences drawn therefrom, in a light most favorable to the nonmovant.
(Punctuation and footnotes omitted.) Assaf v. Cincinnati Ins. Co., 327 Ga.App. 475, 475-476 (759 S.E.2d 557) (2014).
So viewed, the record shows the following undisputed evidence. On September 22, 2009, Castellanos was injured in a wreck caused by the negligence of another driver, Jose Santiago. At the time of the wreck, Castellanos was a named insured under a UM policy Travelers issued to Lucrecia Arias, and he was driving a covered automobile.
Castellanos filed suit against Santiago for his injuries. Santiago's liability insurance carrier, United Automobile Insurance Company, provided a defense. Castellanos also served the summons and complaint on Travelers as his UM carrier, and Travelers' counsel participated in the suit through the end of the trial. After a trial, which Santiago did
not attend, a jury returned a verdict in favor of Castellanos, and, on February 1, 2012, the trial court entered judgment against Santiago for $3,731 in compensatory damages, $3,269 in punitive damages, and $135.50 in court costs.
Castellanos demanded payment of the judgment from United as Santiago's liability carrier. After some communication between counsel, United formally denied any coverage, based on Santiago's " lack of cooperation in the defense of [Castellanos'] lawsuit and [his] failure to attend the resulting trial." Castellanos then demanded that Travelers pay the compensatory damages under Arias' UM policy. Travelers failed to pay UM benefits within 60 days of Castellanos' demand.
Castellanos filed the instant action against Travelers, alleging, inter alia, that Travelers' refusal to pay UM benefits was made in bad faith. Castellanos filed a motion for summary judgment, and Travelers filed a cross-motion. Travelers argued that there was no evidence that United's denial of coverage on the basis that Santiago failed to cooperate in the defense was a legal denial of coverage and, therefore, that Santiago was not an uninsured motorist as defined in Arias' UM policy. After a hearing, the trial court granted Travelers' [328 Ga.App. 676] motion for summary judgment and denied Castellanos' motion, finding that there was " no evidence that United reasonably requested Santiago's cooperation, that Santiago willfully and intentionally failed to cooperate, that his failure to cooperate was prejudicial to United, and that [his] justification ...