MILLER, P. J., ANDREWS, J., and SENIOR APPELLATE JUDGE
DOROTHY T. BEASLEY
MILLER, PRESIDING JUDGE
Bramley was injured in an automobile accident in August 2015.
In April of 2016, she first notified her uninsured motorist
carrier, Nationwide Affinity Insurance Company of America
("Nationwide"), that she had filed suit against the
other driver. Nationwide moved for summary judgment on the
ground that the notice was untimely under the policy, which
required the insured to notify Nationwide
"immediately" after the accident. Following a
hearing, the trial court granted Nationwide's summary
judgment motion. Bramley now appeals, arguing that the trial
court erred in granting summary judgment because (1) the
policy did not define "loss;" (2) notice was not a
condition precedent to coverage; (3) her delay in giving
notice was reasonable; and (4) the attorney for the other
driver should not have been permitted to participate in the
summary judgment hearing. We conclude that the trial court
erred in granting summary judgment because there was a jury
question as to whether Bramley's failure to provide
timely notice was due to a reasonable delay. Accordingly, we
reverse the trial court's order and remand the case for
Summary judgment is proper when there is no genuine issue of
material fact and the movant is entitled to judgment as a
matter of law. OCGA § 9-11-56 (c). A de novo standard of
review applies to an appeal from a grant or denial of summary
judgment, and we view the evidence, and all reasonable
conclusions and inferences drawn from it, in the light most
favorable to the nonmovant.
(Citation omitted.) Amtrust North America, Inc. v.
Smith, 315 Ga.App. 133 (726 S.E.2d 628) (2012).
facts of the case are undisputed. Bramley was injured in an
auto accident on August 17, 2015, when her car was struck by
another driver. About one to two weeks after the accident,
she was examined by a neurologist and treated for her
injuries. Despite treatment, she continued to experience pain
in her lower back and legs that prevented her from working.
Bramley was driving at the time of the accident was owned by
her then-ex-husband and insured by Nationwide with
uninsured/underinsured motorist coverage ("UM").
The UM provision of the policy requires that the insured
"must submit written proof of the claim to [Nationwide]
immediately after the loss." Additionally, the policy
includes "legal action limitations, " which
provide, in relevant part, that "no legal action may be
brought against the company concerning any of the coverages
provided until the insured has fully complied with all the
terms of the policy." Through counsel, Bramley notified
Nationwide of the pending lawsuit against the other driver,
Storm Austin, on April 20, 2016. This was the first and only
notice Bramley provided.
moved for summary judgment, arguing that Bramley failed to
comply with the UM notice provision in the policy, and thus,
her claim was barred. Bramley responded that she was not the
named insured and therefore she had never seen the policy.
She further explained that she had not known the full extent
of her injuries until her treatment by the neurologist in
early 2016. She contended that the UM notice requirement in
the policy was not a condition precedent to coverage, the
trial court should construe the policy in favor of coverage,
and that Nationwide faced no prejudice or harm from the
hearing on the summary judgment motion, Austin's counsel
was present and seated at the table with Nationwide's
attorney even though he had not filed a motion or brief
concerning the pending summary judgment motion. Bramley's
attorney objected to the presence of Austin's attorney,
but the trial court allowed the attorney to remain. After
hearing argument from Bramley's and Nationwide's
attorneys, the trial court allowed Austin's attorney to
address the court, over Bramley's objection. The trial
court granted summary judgment to Nationwide, finding that
the plain meaning of the policy term "immediately"
did not include waiting several months to give notice. The
trial court further found that Bramley's delay was
unreasonable. Bramley now appeals.
Bramley first argues that the trial court erred in granting
summary judgment because the term "loss" in the
policy was ambiguous.
did not argue that the term "loss" was ambiguous in
her response to the summary judgment motion or at the hearing
on the motion for summary judgment, and we will not consider
an argument raised for the first time on appeal. Malaga
Mgmt. Co. v. John Deere Co., 208 Ga.App. 764, 766 (4)
(431 S.E.2d 746) (1993) ("This issue, however, was not
raised until appeal; after summary judgment is granted to a
movant/plaintiff, a nonmovant/defendant may not raise an
argument or defense not asserted in the trial court.").
Bramley contends that providing immediate notice was not a
condition precedent to coverage. We disagree.
insurance policy is simply a contract, the provisions of
which should be construed as any other type of contract. The
construction of an unambiguous contract is a question of law
for the court." (Citation and punctuation omitted.)
Federated Mut. Ins. Co. v. Ownbey
Enterprises, 278 Ga.App. 1, 5 (627 S.E.2d 917) (2006).
When construing a contract, we note that "[w]ords
generally bear their usual and common signification."
OCGA § 13-2-2 (2). "Unambiguous terms are taken in
their plain, ordinary and popular sense as supplied by
dictionaries." (Citation and footnote omitted.) Blue
Cross & Blue Shield of Georgia, Inc. v. Shirley, 305
Ga.App. 434, 438 (699 S.E.2d 616) (2010). As this Court
When possible, we construe insurance policies to provide
coverage, so as to advance the benefits intended to be
accomplished by such policies. However, a forfeiture of
insurance coverage may result when an insured fails to
satisfy a condition precedent to coverage under the contract.
In particular, an insured that cannot demonstrate
justification for failure to comply with a notice provision
that is expressly made a condition precedent to coverage is
not entitled to either a defense or coverage, even if the
insurer does not show actual harm from a delay in notice . .
. . The general rule is that a notice provision in an
insurance policy is only considered a condition precedent to
coverage if it expressly states that a failure to provide
such notice will result in a forfeiture of the insured's
rights or uses language which otherwise clearly expresses the
intention that the notice provision be treated as a condition
precedent. Policy language that merely requires the insured
to give ...