Georgia Farm Bureau Mutual Insurance v. Matthews
Georgia Farm Bureau Mutual Insurance v. Matthews
Opinion of the Court
In May, 1976, appellee was involved in an automobile collision. She was treated for injuries to her neck, for which injuries she was compensated by appellant under the provisions of an automobile insurance policy. In August of the same year, appellee fell in her home, injuring her back. She sought payment of her medical expenses from appellant, alleging that the fall merely aggravated a back injury sustained as a result of the automobile collision in May. Appellant denied coverage. Appellee brought suit on the policy and received a jury verdict awarding her the benefits sought plus a 25% bad faith penalty and attorney fees. This appeal is from the judgment entered on that verdict.
1. Appellant’s first two enumerations complain of the trial court’s denial of appellant’s motions for a directed verdict, for a judgment notwithstanding the verdict, and for a new trial. The basis for both enumerations is that there was no competent evidence that appellee’s back injury was attributable to the automobile accident in
However, appellant has overlooked the testimony of appellee. She testified that her back was injured in the automobile accident and that she has suffered increasingly from that injury since the accident in May. Her testimony was internally consistent and without vagueness. It constitutes some evidence that the injury for which appellee sought insurance coverage had its genesis in the automobile accident, not the fall at home. Compare Liberty Nat. Life Ins. Co. v. Mitchell, 73 Ga. App. 673 (37 SE2d 723).
"In reviewing the overruling of a motion for a directed verdict, the proper standard to be utilized by the appellate court is the 'any evidence’ test. [Cits.]” Speir v. Williams, 146 Ga. App. 880, 881 (247 SE2d 549). There being some evidence to support the verdict, there was no error in denying appellant’s motion for a directed verdict. Similarly, where there is some evidence to support the verdict, it is not error to deny the defendant’s motion for judgment notwithstanding the verdict or for a new trial. Interstate Life &c. Ins. Co. v. Brown, 130 Ga. App. 850 (1) (204 SE2d 755).
2. In its third enumeration of error, appellant contends that the trial court erred in submitting to the jury the issue of bad faith penalties. We agree and reverse that portion of the judgment comprising penalties for bad faith.
The penalties here sought are provided for in Code Ann. § 56-3406b: "In the event the company fails to pay each benefit when due, the person entitled to such benefits may bring an action to recover them, and the company
The issue here is whether the question of good or bad faith should have been submitted to a jury. In construing § 56-3406b, this court has held, citing Bituminous Cas. Corp. v. Mowery, 145 Ga. App. 45 (2) (244 SE2d 573), that "ordinarily, the determination of 'good or bad faith of the insurer is for the jury.’ ” Miller v. Spicer, 147 Ga. App. 759 (3) (250 SE2d 492). In Bituminous Cas. Corp., supra, this court held, without using the word "ordinary,” that the issue is one for the jury. However, that statement must not be taken for a holding that there are no instances in which the issue is one of law for the court. The cases cited in Bituminous Cas. Corp. in support of that proposition hold, for the most part, that under the evidence in those cases, the issue was one for the jury. One of the cases cited, however, contains a holding most appropriate for this case: "Though ordinarily these are questions for the jury, if there is no evidence of such frivolous or unfounded refusal to pay, or if the question of liability is a close one, the court for the furtherance of justice should see to it that a verdict which illegally carries a penalty for bad faith is not allowed to stand. [Cit.]” Pearl Assur. Co. v. Nichols, 73 Ga. App. 452, 455 (37 SE2d 227). (Emphasis supplied.)
The instant case is such a case as is described in Pearl Assur. Co. We held in Division 1 of this opinion that the testimony of the appellee was sufficient to uphold the verdict. Looking carefully at the evidence, however, we find that the issue of liability was very close. Appellee’s evidence was her testimony and that of a specialist who treated her after the fall at home. That doctor testified that, based on the history given him by appellee, there was a connection between the automobile accident and the back injury. Under the holding in East Point Ford Co. v. Linger felt, supra, such testimony is without probative value in establishing the link between the accident in May and the back injury in August. Appellant produced correspondence from the doctor who treated appellee in May to the effect that thete was no connection between the car accident and the back injury. Later
070rehearing
On Motion for Rehearing.
Appellant again vehemently asserts that no recovery was authorized in this case. Essentially, it is submitted that appellee’s fall in August, 1976 constituted an efficient superseding cause which, absent evidence that the automobile injury caused the fall or that the fall was foreseeable, relieved the insurance company of further liability for appellee’s injuries.
A review of the jury charges shows that the jury was instructed that recovery could be had for injuries sustained in the fall regardless of causation if appellee "proves the fall of August 30,1976 aggravated an existing and continuing injury which originated in the automobile injuries of May 19, 1976 and that the medical expenses were due solely to the aggravation of the original automobile injuries of May, 1976.” Appellant did not object to this charge then and does not object to this charge now. A review of the evidence shows that appellee
Motion for rehearing denied.
Reference
- Full Case Name
- Georgia Farm Bureau Mutual Insurance Company v. Matthews
- Cited By
- 26 cases
- Status
- Published