Empire Fire & Marine Insurance v. Driskell
Empire Fire & Marine Insurance v. Driskell
Opinion of the Court
This insurance dispute is before us for a third time.
In Case No. A03A0852, Empire appeals the verdict relating to breach of the duty to settle. It does not challenge the $9,000 award for failure to defend. The Harrises cross-appeal in Case No. A03A0853, arguing that the trial court erred in directing a verdict on their punitive damages claim. For reasons that follow, we reverse the judgment entered on the failure to settle claim, but affirm the trial court’s grant of a directed verdict as to punitive damages.
Case No. A03A0852
Our prior opinions detail the relevant facts in this case.
The Harrises sued Metro for injuries they sustained in the wreck. Metro asked Empire to provide a defense under the policy, but Empire refused. Empire also rejected the Harrises’ offer to settle the lawsuit for $1,000,000. The case proceeded to arbitration, resulting in a $3,150,000 award. Pursuant to an agreement between Metro and the Harrises, Metro consented to entry of judgment on the award and assigned its rights against Empire to the Harrises. A $3,150,000 final judgment was subsequently entered for the Harrises.
The Harrises then sued Empire, alleging, among other things, that the insurance company breached its duty to defend Metro and refused, in bad faith, to settle the case within the policy limits.
We further found, however, that Empire was entitled to partial summary judgment on the issue of recoverable damages for the failure to settle claim.
After remand, the parties tried the failure to defend and failure to settle claims before a jury, which returned a verdict for the Harrises on both claims. Empire appeals, challenging only the verdict and resulting judgment for bad faith failure to settle.
1. Empire argues that the trial court erred in allowing the Harrises to recover more than $200,000 in damages on the failure to settle claim. We agree.
On appeal, the Harrises contend that the Driskell opinion granted Empire partial summary judgment as to damages on their fraud and misrepresentation claims, not the bad faith failure to settle claim. In Division 4 of our opinion, however, we clearly determined that Empire was entitled to “partial summary judgment on the issue of recoverable damages” relating to “the Harrises’ claim against it for failure to settle the case.”
The Harrises further argue that their damages cannot be limited to $200,000 because “[a] claim for compensatory damages for the insurer’s bad faith failure to settle is by nature a claim for amounts in excess of the $200,000 applicable policy limit.”
Given our decision in Driskell, the trial court erred in permitting the jury to award more than $200,000 to the Harrises for bad faith failure to settle. Accordingly, we must reverse the trial court’s entry of judgment for $6,480,000 on the failure to settle claim and remand with direction that the trial court enter judgment on this claim in the amount of $200,000. We further note that, prior to trial, Empire paid the Harrises $200,000 plus interest. Thus, the Harrises have received payment of the $200,000 policy limits, the amount of damages permitted for this claim under Driskell. We can see no basis for further recovery on the failure to settle claim.
Case No. A03A0853
3. In this appeal, the Harrises challenge the trial court’s order directing a verdict for Empire on their punitive damages claim. We find no error.
At trial, the Harrises only pursued claims against Empire as assignees of Metro. They did not prosecute any individual claims. And, as noted by our Supreme Court, “[a] claim for punitive damages has efficacy only if there is a valid claim for actual damages to which it could attach. Punitive damages may not be recovered where there is no entitlement to compensatory damages.”
Under Georgia law, however, the right to punitive damages cannot be assigned.
Without dispute, the Harrises only proceeded at trial as assignees of Metro. Any compensatory recovery, therefore, was based on the assigned claims, and any award of punitive damages must attach to those Metro claims. Under these circumstances, we cannot discern how the Harrises, as Metro assignees, could possibly recover punitive damages arising from the Metro claims. To find otherwise would require us to ignore Georgia law prohibiting assignment of punitive damage claims.
Judgment reversed and case remanded with direction in Case No. A03A0852. Judgment affirmed in Case No. A03A0853.
See Empire Fire &c. Ins. Co. v. Driskell, 262 Ga. App. 447 (585 SE2d 657) (2003); Driskell v. Empire Fire &c. Ins. Co., 249 Ga. App. 56 (547 SE2d 360) (2001), cert. denied, 249 Ga. App. 903 (2001). We also addressed a related dispute in Empire Fire &c. Ins. Co. v. Metro Courier Corp., 234 Ga. App. 670 (507 SE2d 525) (1998).
See Empire, supra; Driskell, supra.
See Driskell, supra at 58.
Mr. Harris died during the pendency of this litigation, and the administratrix of his estate was substituted as a party plaintiff.
See id. at 58-59.
See id. at 61-62 (3).
See id. at 63 (4).
See id. at 62.
Id. at 63.
See id.
See id. at 62-63.
See Empire, supra; OCGA § 9-11-60 (h).
Driskell, supra at 62.
(Emphasis in original.)
See OCGA § 9-11-60 (h).
See id. The Harrises do not argue that a change in the evidentiary posture of the case permits relitigation of this issue. See Brown v. Piggly Wiggly Southern, 228 Ga. App. 629 (1) (493 SE2d 196) (1997) (“ ‘An exception to the rule that will permit issues to be relitigated after appeal is when the evidentiary posture of the case changes.’ ”).
Indeed, any additional compensation would constitute an impermissible double recovery. See Woodhull Corp. v. Saibaba Corp., 234 Ga. App. 707, 712-713 (2) (507 SE2d 493) (1998) (“Where, for the same damages, there exists an action in contract and tort, i.e., fraud,
(Punctuation omitted.) Southern Gen. Ins. Co. v. Holt, 262 Ga. 267, 270 (2) (416 SE2d 274) (1992).
See In re Estate of Sims, 259 Ga. App. 786, 791, n. 2 (578 SE2d 498) (2003); Southern R. Co. v. Malone Freight Lines, 174 Ga. App. 405, 408-409 (1) (330 SE2d 371) (1985).
See Southern R. Co., supra; In re Estate of Sims, supra.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.