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Thompson v. Homesite Ins. Co. of GA

Court of Appeals of Georgia, Fifth Division

March 14, 2018

THOMPSON
v.
HOMESITE INS. COMPANY OF GA.; and vice versa.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          Bethel, Judge.

         These cross-appeals arise from the trial court's partial grant of a motion for summary judgment filed by Homesite Insurance Company of Georgia on claims brought against it by Tara Thompson. On appeal, Thompson argues that the trial court erred by granting summary judgment to Homesite on her claim for bad faith failure to pay an insurance claim under OCGA § 33-4-6. In its cross-appeal, Homesite argues that the trial court erred by denying its motion for summary judgment on Thompson's claim for attorney fees under OCGA § 13-6-11, arguing that OCGA § 33-4-6 is the only statute that permits recovery of attorney fees against an insurance company for its failure to pay a claim. We affirm the trial court's grant of summary judgment in favor of Homesite on Thompson's bad faith claims. However, because the trial court erroneously denied Homesite's motion for summary judgment on Thompson's claims for attorney fees under § 13-6-11, we reverse that portion of the trial court's order.

Summary judgment is proper 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[.] Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

Cowart v. Widener, 287 Ga. 622, 623-24 (1) (a) (697 S.E.2d 779) (2010) (citations and punctuation omitted); OCGA § 9-11-56 (c).

         So viewed, the largely undisputed record before us reflects that Thompson's home was damaged in April 2011 when a tree fell on it during a storm. In addition to the damage to her home requiring repair, she incurred expenses for the removal of trees and other debris from her property.

         Homesite provided insurance coverage for Thompson's property, including coverage for tree and debris removal. After the April 2011 storm, Thompson notified Homesite of the damage. An adjuster reviewed the damage and completed an estimate, and Homesite issued an initial payment to Thompson based on the adjuster's report totaling $1, 812.33.

         Homesite and Thompson were initially unable to agree on the amount of reimbursement Homesite would provide to Thompson for tree and debris removal. Throughout this process, Thompson made a number of complaints to and about Homesite regarding the handling of her claims. Specifically, she filed a formal complaint with the Georgia insurance commissioner regarding her dealings with Homesite to which Homesite and the insurance commissioner responded. She also sent a number of messages to representatives of Homesite between May 3 and May 18, 2011, inquiring about, and criticizing, the handling of her claims.

         After receiving a request for documentation of the cost of the tree and debris removal from a representative of Homesite on June 6, 2011, Thompson provided Homesite with documentation of the expenses she had incurred to remove the trees and other debris on June 9, 2011. Homesite acknowledged receipt of those documents the same day. Homesite did not dispute the amounts submitted by Thompson for reimbursement or make any argument that such claims are not covered by Thompson's insurance policy. Homesite made a payment on the reimbursement claim in the amount of $1, 800.00 on October 6, 2011.

         In a letter dated October 12, 2011, Thompson's counsel demanded payment of the reimbursement for Thompson's tree and debris removal expenses. In that letter, Thompson's counsel threatened to file a bad-faith claim against Homesite pursuant to OCGA § 33-4-6 if it did not properly reimburse Thompson for the tree and debris removal expenses.

         Homesite and Thompson were also unable to agree on the total value of Thompson's losses arising from the damage to her home, and, through the same October 12, 2011 letter, Thompson notified Homesite that she did not agree with the estimate stated in the adjuster's report. Pursuant to Thompson's insurance policy, she and Homesite entered into an appraisal process in regard to the value of the damage to her home. Appraisers hired by Thompson and Homesite both submitted competing estimates to a third-party umpire. The umpire awarded Thompson a net amount of $49, 713.69. This award reflected Thompson's total loss of $50, 713.69 (as determined by the umpire) less the $1, 000 deductible in her policy.

         Homesite issued a payment to Thompson on May 11, 2012 in the amount of $47, 101.36 as payment for in the umpire's award. That amount was equal to the gross appraisal award ($50, 713.69) minus the amount of the previous payment made to Thompson based on the adjuster's report ($1, 812.33) and the amount Homesite had paid her in reimbursement for tree and debris removal ($1, 800), totaling $3, 612.33. Homesite never made any additional payment to Thompson, and it contended that the umpire's award was meant to address all covered losses under Thompson's insurance policy, including the expenses she incurred for tree and debris removal. Homesite further contended that offset of amounts previously paid under the policy, including for tree and debris removal, against the umpire's total award was proper.

         Thompson filed suit against Homesite on May 19, 2015, [1] claiming that Homesite had unreasonably delayed reimbursing her for the tree and debris removal expenses and that it had underpaid on the umpire's award, subjecting Homesite to liability under OCGA § 33-4-6, Georgia's bad faith statute. She also brought claims for breach of contract and for attorney fees. Homesite moved for summary judgment on each claim brought by Thompson. The trial court granted Homesite's motion with respect to Thompson's bad faith claim, but denied the motion as to her remaining claims. These cross-appeals followed.

         Case ...


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