Summary
holding that failure by the insured to file within the one-year limitation period precluded recovery
Summary of this case from In re Complaint of Martin Marietta MaterialsOpinion
55909.
ARGUED MAY 22, 1978.
DECIDED JULY 3, 1978. REHEARING DENIED JULY 28, 1978.
Action on insurance policy. Oglethorpe Superior Court. Before Judge Grant.
Ken Stula, for appellant.
Erwin, Epting, Gibson McLeod, Gary B. Blasingame, for appellee.
Plaintiff administrator appeals from the grant of summary judgment to the defendant insurer. These facts are not contested. The defendant issued a fire policy covering the dwelling of plaintiff's decedent. The dwelling was destroyed by fire on October 11, 1975, and the insured died in the blaze. Plaintiff was granted letters of administration on January 13, 1976. The fire policy contained a provision that no suit on the policy was sustainable unless commenced within 12 months after the loss. This suit was commenced on October 20, 1976. Held:
Plaintiff contends that as the estate was unrepresented for two months after the loss occurred, a genuine issue of material fact for jury resolution was created as to whether this was a sufficient excuse for noncompliance with the contract provision. Filing suit within a specified period of time is a condition precedent to recovery on an insurance policy. Townley v. Patterson, 139 Ga. App. 249 ( 228 S.E.2d 164). Plaintiff's assertion that strict compliance with the terms of the insurance policy was impossible is incorrect. Plaintiff was granted letters of administration approximately three months after the loss occurred; therefore, approximately nine months remained in which he could have timely filed this suit. The case of Buffalo Ins. Co. v. Steinberg, 105 Ga. App. 366 ( 124 S.E.2d 681), is inapposite as it concerned a conservator appointed after the twelve months policy limitation had expired, subsequent to a diligent search for a missing insured. Since in this case there was ample time after the plaintiff was appointed to file this action and still be within the limitation period, his voluntary failure to do so precludes recovery. Livaditis v. American Cas. Co., 117 Ga. App. 297 ( 160 S.E.2d 449). As the plaintiff did not meet the condition precedent to his suit, the summary judgment in favor of the defendant was proper.
Judgment affirmed. Shulman and Birdsong, JJ., concur.