Opinion
48442.
SUBMITTED SEPTEMBER 10, 1973.
DECIDED OCTOBER 26, 1973.
Action on insurance policy. Morgan Superior Court. Before Judge Carpenter.
Lambert Carter, James E. Carter, for appellants,
Erwin, Epting, Gibson Chilivis, Gary B. Blasingame, Lawrence F. Jones, for appellee.
For the refusal by the insurer to pay an insurance claim to constitute a waiver of the requirement that a proof of loss be filed within 60 days subsequent to date the loss occurred, the refusal to pay must have been within the period of time that such proof of loss was required to be filed.
SUBMITTED SEPTEMBER 10, 1973 — DECIDED OCTOBER 26, 1973.
Mrs. Brooks M. Pennington, Sr. and Brooks Pennington, d/b/a Pennington Magnolia Market filed a claim against the Aetna Insurance Company to recover the proceeds of an insurance policy which covered the plaintiffs' place of business for loss due to vandalism and malicious mischief. The defendant, by way of answer, set forth the affirmative defense that the action of plaintiffs was barred by reason of plaintiffs' failure to comply with all the provisions contained in the policy in question, which compliance was a condition precedent to the filing of a suit to collect the proceeds of the policy. In particular, the defendant pleaded that the proof of loss required to be filed under the terms of the policy was not ever filed; the defendant further asserted that if a certain letter which was filed by the defendant was construed as a proof of loss, then it was not timely and was of no effect. The defendant then filed a motion for summary judgment in which it contended that, as a matter of law, the suit was barred by reason of the failure of plaintiffs to file its proof of loss as required by the policy. Defendant's motion was supported by an affidavit of the defendant's claim supervisor, and a copy of the insurance policy. Plaintiffs, in response to the motion for summary judgment, offered the court three letters which, by stipulation of the parties, were admitted as genuine without the necessity of having affidavits. After hearing argument of counsel, the court took the matter under advisement and briefs were filed by both parties. Subsequently the court granted the defendant's motion for summary judgment. It is from this judgment that the plaintiffs appeal.
The policy in question provided that the insured must file a proof of loss within 60 days after the loss. From the evidence it is clear that the loss took place on April 24, 1971 and that the first notice the defendant insurer received of the loss was a letter from plaintiffs insured dated November 23, 1971. Thus, the proof of loss provision was clearly not complied with by the plaintiffs. The plaintiffs contend that the defendant waived the requirement as to the proof of loss. With this contention we cannot agree. The plaintiffs argue that the defendant waived the proof of loss provision because the defendant wrote a letter in which coverage under the policy was denied. It is true the defendant wrote the plaintiffs' attorney a letter stating that it took the position that the loss was due to burglars and therefore not covered under the malicious mischief coverage of the policy. However, the letter denying coverage was written on January 31, 1972 which was not within the 60 day period subsequent to the loss. The defendant also wrote the plaintiffs' insurance agent a letter to the same effect subsequent to the 60 day period after the loss. Therefore, there was no waiver of the provisions of the policy requiring proof of loss. "But if the insured is to rely upon an absolute refusal to pay as a waiver of the requirement for filing a proof of loss within sixty days after the loss occurred, it must appear that the refusal to pay (or what amounted to a refusal to pay) occurred within the same period, for nothing short of an express waiver by the insurer can be effective after expiration of the time for performing the condition precedent, i. e., the filing of a proof of loss." Reserve Insurance Co. v. Campbell, 107 Ga. App. 311, 314 ( 130 S.E.2d 236). See Buffalo Ins. Co. v. Star Photo c. Co., 120 Ga. App. 697, 703 ( 172 S.E.2d 159).
Judgment affirmed. Bell, C. J., and Deen, J., concur.