Opinion
CIVIL ACTION FILE NO. 1:03-CV-692-RLV
May 19, 2003
Sanders Carter, Jr., Elizabeth A. Beskin, Carter Ansley, Atlanta, for Defendant
REPLY MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION TO PARTIALLY DISMISS PLAINTIFF'S COMPLAINT
Now comes defendant PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY ("Provident"), and files this reply memorandum in support of its motion to dismiss Counts II and IV of plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6).
Plaintiff, an attorney, sued to recover benefits under four policies of disability income insurance issued by Provident. In addition to his claims for breach of contract (Count I) and for a penalty and attorney fees under O.C.G.A. § 33-4-6 (Count III), plaintiff asserted:
• In Count II, that he is entitled to recover tort damages for fraud, alleging that Provident induced him to purchase the policies by means of false representations; and
• In Count IV, that he is entitled to recover punitive damages, based on the fraud alleged in Count II.
Provident moved to dismiss Count II, showing that plaintiffs fraud claim is precluded by the "merger" clause in each of the policies, and that tort damages are not otherwise recoverable in a breach of contract action when, as here, a plaintiff has sustained no damage other than the loss of a contractual benefit. Provident moved to dismiss Count IV, because punitive damages are not recoverable in a breach of contract action.
1. The fraud count.
In opposition to Provident's motion to dismiss Count II, plaintiff makes what essentially is a single argument. Acknowledging, as he must, that the merger clause precludes his fraud claim based on alleged pre-contractual misrepresentations, plaintiff now asserts: "However, a merger clause does not preclude a party from suing another party for fraudulent statements made within the contract itself (Plaintiffs brief, p. 16.) (Emphasis added.)
In light of the actual allegations of his complaint, it is difficult to understand how plaintiff can make this argument, which represents a new but unavailing theory of tort liability. In Count II, plaintiff did not suggest that he relied on misrepresentations within the four comers of his policies. Rather, he asserted that pre-contractual misrepresentations induced him to purchase the policies. Thus, plaintiff contended:
58. At the time plaintiff purchased his disability policies, Provident made false representations to plaintiff that if he was unable to perform the substantial and material duties of his occupation and was receiving care from a physician which is appropriate for the condition causing his disability benefits, he would receive disability benefits from Provident for at long as he remained disabled.
59.
Based on Provident's internal documents, it is clear that at the time plaintiff purchased his policy Provident knew that it had oversold disability policies and it planned to terminate and deny claims rather than pay them in order to make a profit.
60.
Provident intended to induce plaintiff to rely on its false representations and purchase disability policies.
61.
Plaintiff justifiably relied upon Provident's misrepresentations and purchased disability policies and paid premiums for many years.
(Complaint, ¶¶ 58-61.) (Emphasis added.)
Now, despite alleging that he was "induced" to purchase the policies, plaintiff asserts:
Here, the fraudulent representations made by Provident are contained within the policies themselves. While Provident made fraudulent representations in the advertising material it provided to plaintiff plaintiff based his fraud claim on misstatements in the Provident Policies. Each of the Provident policies provides "we will pay benefits for covered loss resulting from Injuries or Sickness subject to all of the provisions of this policy. Loss must begin while the policy is in force."
(Plaintiffs brief, p. 17.) The only other "misrepresentation" now alleged by plaintiff to be contained within the policy is the definition of total disability. ( Id, at 17-18.) According to plaintiffs new theory: "It is these representations that provide the basis for plaintiffs claim for fraudulent misrepresentation." ( Id, at 18.)
Plaintiff argues that his fraud claim, based on misrepresentations contained within the policies, is authorized by Conway v. Romarion, 252 Ga. App. 528, 557 S.E.2d 54 (2001); Fann v. Mills, 248 Ga. App. 460, 546 S.E.2d 853 (2001); and Smiley v. SJ Investment, Inc., 1405163 (Ga.App. Mar. 21, 2003). These cases do not support plaintiff's new-found theory, however, because they each involved written pre-contractual representations on which the plaintiffs had relied in entering into their contracts, and which then were incorporated into and made a part of the resulting contracts.
Thus, in Conway, plaintiffs entered into a contract to purchase a home, relying in part on a written pre-contractual disclosure statement that concealed extensive damage to the home caused by the sellers' cats. Plaintiffs sued for fraud when the damage was later discovered. The court held that plaintiff's fraud claim was not barred by the merger clause of the purchase agreement, because the misrepresentation in the disclosure statement, on which they relied, was incorporated into and became a part of the purchase contract. 252 Ga. App. 531, 557 S.E.2d at 58.
Likewise, in Fann, plaintiff entered into a contract to purchase a house, relying on a pre-contractual wood infestation report that did not disclose termite damage. Plaintiff sued the seller for fraud when she later learned that the house was infested by termites. Because representations in the wood infestation report were incorporated into the purchase contract, the court held that "a merger clause would not preclude a party from claiming reliance on such representations." 248 Ga. App. at 464, 546 S.E.2d at 858.
And in Smiley, a precontractual disclosure statement containing false statements as to the condition of the property was incorporated into a home purchase agreement. The court held that "[s]ince the representations were made within the four comers of the contract, then the merger clause does not prevent the plaintiffs from claiming reliance to their detriment." 2003 WL 1405163, *6.
Unlike the plaintiffs in Conway, Fann, and Smiley, plaintiff does not allege here that any pre-contractual written misrepresentation was incorporated into his policies. To the contrary, plaintiff specifically asserts that his fraud claim is based solely on misrepresentations "contained within the policies themselves." (Plaintiffs brief, p. 17.)
Nor can plaintiff rely on representations contained in the policies as the basis for a claim of fraud. That is because, "[u]nder Georgia law, statements as to the nature of insurance coverage are opinions of law and cannot support an action for fraud." The Seckinger-Lee Co. v. Allstate Ins Co., v. Allstate Ins. Co., 32 F. Supp.2d 1348, 1353 (N.D. Ga. 1998) (citing Marrett properties, Inc. v. Prudential Ins. Co. of America, 167 Ga. App. 631, 307 S.E.2d 69 (1983)). In Seckinger-Lee Co., the court rejected as a matter of law plaintiffs contention that the language in the contract itself constitute a misrepresentation. "The Plaintiff," the court noted, had not "come forward with any controlling or persuasive authority that clear, unambiguous language in an insurance policy can itself constitute a misrepresentation that will support a claim for fraud." Id.
Likewise, plaintiff cites no authority rejecting the well-established principle of Georgia law that a breach of contract "does not give rise to an action for tort, whether or not such breach was negligent or wilful." Service Master Co., LLP v. Martin, 252 Ga. App. 751, 754, 556 S.E.2d 517, 523 (2001). In ServiceMaster, plaintiff sued for breach of a written employment contract and also sought to recover compensatory and punitive damages under tort theories. A judgment awarding plaintiff both compensatory and punitive damages was set aside because the tort claims were not authorized, even though it was "deemed admitted that ServiceMaster knew [plaintiff] would never receive compensation for his past or ongoing work, but concealed that fact, as [plaintiff] continued working." Id. Just as the plaintiff in ServiceMaster alleged that the defendant denied him compensation that he had earned, knowing that it did not intend to perform its contractual obligations, plaintiff alleges here that Provident issued disability policies to him, knowing that it would deny any claim for benefits "in furtherance of Provident' s ongoing scheme to increase profits by denying disability insurance claims." (Complaint, ¶ 49.) In language equally applicable here, the court in ServiceMaster concluded that
all the duties which [plaintiff] complains were breached by ServiceMaster arise directly from, not independent of, [plaintiffs] written employment contract. All issues dealing with the extent of the duties owed to [plaintiff), whether the duties were breached, the injury which flowed from the breach and the remedy for any such breach are controlled by [plaintiffs] written employment contract. From these facts it is clear that in the absence of its contractual duties, ServiceMaster owed and breached no independent duty to [plaintiff].252 Ga. App. at 754, 556 S.E.2d at 523.
This longstanding Georgia rule of law was applied in the unreported case of Silvers v. The Equitable Life Assur. Soc., No. CV498-76 (S.D. Ga. May 19, 1999) (copy attached as Exhibit 1), in which plaintiff sought to recover tort damages based on the insurer's denial of his claim for disability benefits. Plaintiff alleged that he had been fraudulently induced by the insurer to cancel other policies of disability insurance when he became insured by Equitable. In dismissing the fraud claim, the court reasoned that it "really amounts to a claim that the Defendant did not provide the disability income insurance coverage it promised to provide. In effect, this claim essentially is a claim for breach of contract." Slip op. at 4. The court added that "the duty to pay the disability benefits in a timely and consistent manner derives exclusively from the policies issued to the plaintiff. No additional duty exists beyond that specified in the insurance policy sufficient to allow a tort action." Id, at 6. In language dispositive of plaintiff's claim here, the court concluded:
[T]he claims that Plaintiff asserts are all based on the contract itself and not on an independent duty arising outside of the contract. Plaintiff's case is simply one arising out of an alleged breach of contract. . . . Without the alleged breach of the policy, these alleged damages would not have occurred. In other words, all of the Plaintiffs claimed injuries or damages directly arise from the alleged breach of the policies' terms. Because the suit is premised on contract, the Plaintiff may only sue in contract.Id. 9-10.
2. The punitive damage claim.
With respect to his claim for punitive damages (Count IV), plaintiff acknowledges that this claim depends entirely on the viability of his fraud claim. (Plaintiff's brief, p. 25.) Because the fraud claim must be dismissed for the reasons discussed above, the punitive damage claim likewise must be dismissed.
3. Plaintiff's reliance on matters outside the complaint.
Although acknowledging that the Court's consideration of Provident's motion to dismiss should be based on the allegations of the complaint, which are taken as true, plaintiff nonetheless attached as exhibits to his brief copies of an order issued by the Georgia Commissioner of Insurance and a California court's order in Hangarter v. The Paul Revere Life Ins. Co., 236 F. Supp.2d 1069 (N.D. Cal. 2002). These documents purportedly were offered as evidence of Provident's "misrepresentations and fraudulent claims practices." (Plaintiff's brief, p. 20.) Actually, they serve no purpose other than a further attempt by plaintiff to cast Provident in an unfavorable light.
The order by the Insurance Commissioner does not mention plaintiff's claim, nor does it deal with alleged fraudulent misrepresentations in policies of insurance. Likewise, the order in the Hangarter, case to which Provident was not a party, makes no mention of plaintiff's claim, and it is not entitled to consideration in connection with Provident's motion to dismiss. In fact, the Eleventh Circuit has made it clear that findings by other courts constitute inadmissible hearsay. United States Steel, LLC v. Tieco, Inc., 261 F.3d 1275, 1287 (11th Cir. 2001); United States v. Jones, 29 F.3d 1549, 1554 (11th Cir. 1994); see also knipper v. Snipes, 7 F.3d 415 (4th Cir. 1993); The Ages Group, L.P. v. Raytheon Aircraft Co., Inc., 22 F. Supp. 1310 (M.D. Ala. 1998).
For the reasons set out above and in its original brief, Provident Life and Accident Insurance Company prays that Counts II and IV of plaintiff' s complaint be dismissed for failure to state a claim upon which relief may be granted.
IN THE UNITED STATE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION
MARK SILVERS, Plaintiff, vs. Case No. CV498-76
THE EQUITABLE LIFE ASSURANCE SOCIETY Defendant.
ORDER
The Court has assigned this case for trial on August 23, 1999. Originally, the Court did not consider the Defendant's motion to dismiss, filed on October 5, 1998, because it was untimely and because of assertions from the parties that they would probably settle the case. Now that settlement appears unlikely, the Court will not engage in a fruitless and impractical endeavor of having a jury consider issues that clearly are determinable as a matter of law. Therefore, the Court makes the following pretrial rulings regarding Plaintiff's claims.BACKGROUND
Plaintiff has filed a three-count complaint that is premised on the alleged failure of the Defendant to pay disability insurance benefits. In Count I the Plaintiff alleges that the Defendant has not paid the amounts owed to him under the various disability policies. Moreover, he alleges that this failure to pay constitutes bad faith, and that the Defendant has been stubbornly litigious and has caused unnecessary trouble and expense. Under this count, he seeks the statutory remedies provided in O.C.G.A. § 33-4-6 for the breach of an insurance contract, and attorney's fees under O.C.G.A. § 13-6-11. In Count II, the Plaintiff contends that Defendant's conduct has damaged Plaintiff's physical and emotional health. In other words, this appears to be a claim for intentional infliction of emotional distress. Under this count, he seeks actual damages, punitive damages, and attorney's fees. Finally, in Count III the Plaintiff asserts a fraud claim based on the allegation that the Defendant induced Plaintiff to cancel other disability income insurance policies and that Defendant assured Plaintiff that it would always take care of the Plaintiff. For this count, Plaintiff seeks actual damages, punitive damages, and attorney's fees.
The Defendant's original motion to dismiss contains three arguments. First, it contends that the fraud claim found in Count III of the complaint must be dismissed on any or all of the following grounds: (1) Plaintiff cannot assert a cognizable tort claim against the Defendant because the relationship to the Defendant was purely contractual; (2) no confidential or fiduciary relationship existed between the Plaintiff and Defendant; (3} the Plaintiff sustained no injury as a proximate result of the alleged fraud; and (4) Plaintiff failed to rescind the contracts he purportedly was induced into purchasing. Second, the Defendant argues that the claims for punitive damages in Counts II and III must be dismissed because such damages are not recoverable in a breach of contract action. Finally, the Defendant avers that to the extent the claim for attorney's fees asserted in Count I is based on O.C.G.A. § 13-6-11, it should be dismissed because O.C.G.A. § 33-4-6 constitutes "the exclusive provision for attorney's fees in actions involving a breach of an insurance contract.
DISCUSSION
I.Motion to Dismiss.
For purposes of a Rule 12(b)(6) motion to dismiss, a court may dismiss a complaint only if it is clear that no relief is available under any set of facts that could be proven consistent with the allegations. Hishon v. King Spalding. 467 U.S. 69, 73 (1984). "In evaluating the sufficiency of a complaint, a court `must accept the well pleaded facts as true and resolve them in the light most favorable to the plaintiff.'"Beck v. Deloitte Touche, 144 F.3d 732, 735 (11th Cir. 1998) (quotingSt. Joseph's, Hosp., Inc., v. Hospital Corp. of America. 795 F.2d 948, 954 (11th Cir. 1986)). "Before this Court can dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6), it must conclude that the plaintiff can prove no set of facts in support of the claim that would entitle it to relief." St. Joseph's Hosp., Inc., v. Hospital Corp. of America, 620 F. Supp. 814, 820 (S.D. Ga. 1985), vacated on other grounds, St. Joseph's Hosp., Inc., v. Hospital Corp. of America, 195 F.2d 948 [11th Cir. 1986). As a consequence of this exacting standard, "a defendant thus bears the `very high burden' of showing that the plaintiff cannot conceivably prove any set of facts that would entitle him to relief."Beck, 144 F.3d at 735.
II. Dismissal of the Fraud Claim land other tort claims).
In Count III of his complaint, Plaintiff alleges that he was fraudulently "induced by [The Equitable] to cancel other policies of disability income insurance. . . ." Plaintiff purportedly was induced to cancel those other policies based on representations that The Equitable "was a wonderful company" which would "take care of the plaintiff should the need arise." Plaintiff's fraud claim really amounts to a claim that the Defendant did not provide the disability income insurance coverage it promised to provide. In effect, this claim essentially is a claim for breach of contract.
In Georgia, the law is clear that a breach of a contract for failure to perform in accordance with the contract's terms generally does not give rise to a tort action. Williams Assoc. v. Faircloth, 259 Ga'. 767, 769-70, 386 3.E.2d 151 (1989); State Farm Fire Casualty Co. v. Pace, 176 Ga. App. 737, 739, 337 S.E.2d 401 (1985); Mauldin v. Sheffer, 113 Ga. App. 874, 877-78, 150 S.E.2d 150 (1966). But at the same time, it is well settled that misfeasance in the performance of a contractual duty may give rise to a tort action. Pace, 113 Ga. App. at 877-78. In such cases, however, "the injury complained of must be `an independent injury over and above the mere disappointment of plaintiff's hope to receive his contracted-for benefit.'" Id. (citing Smith v. United Ins. Co.. 169 Ga. App. 751, 752, 315 S.E.2d 265 (1984)). In other words, before a party may maintain a tort action, a breach of a legal duty must have occurred that is independent of the duty imposed by the contract itself.Flinkote Co. v. Dravo Corp., 678 F.2d 942, 945 (11th Cir. 1982) (applying Georgia law); Mauldin, 113 Ga. App. at 879-80.
The Plaintiff contends that he is entitled to bring a tort action because the failure of the Defendant to pay Plaintiff's benefits in a timely and consistent manner can be categorized as misfeasance. More specifically, the Plaintiff argues that the manner in which the benefits were paid amounts to reckless and/or negligent performance of the contract which caused harm beyond Plaintiff's harm of not receiving monthly benefit payments. He alleges that this reckless or negligent failure to use due care and good faith caused stress and frustration for the Plaintiff. Moreover, he alleges that because he did not receive these benefits, Plaintiff was forced to liquidate his assets and to work harder and longer in his legal practice.
Plaintiff's argument is inconsistent — he appears to claim that while the refusal to pay disability benefits would give rise to a breach of contract action, the failure to timely and consistently pay such benefits would give rise to an additional tort action. Despite this ambiguity, Plaintiff cannot assert a separate tort claim in this action. Here, the duty to pay the disability benefits in a timely and consistent manner derives exclusively from the policies issued to the plaintiff. No additional duty exists beyond that specified in the insurance policy sufficient to allow a tort action. See Steptoe v. Auto-Owners Ins. Co., 210 Ga. App. 756, 758, 437 S.E.2d 626 (1993) (holding that the only duty owed by insurer to insured under automobile policy providing for payment of medical expenses is Co make payments under the policy, and that insured's claims for compensatory and exemplary damages for mental stress resulting from insurer's refusal to pay benefits could not be maintained); Jet Air, Inc. v. National Fire Union Fire Ins. Co., 189 Ga. App. 399, 403, 375 S.E.2d 873 (1988) (stating that only duty owed by insurer to its insured is that created by the contract of insurance); Globe Life Accident Ins. Co. v. Ogden, 182 Ga. App. 803, 804 357 S.E.2d 276 (1987) (holding incase involving insurance company's failure to pay health policy benefits that the relation between the plaintiff insured and the defendant insurance company is simply a contractual relation); Hanson v. Aetna Life Casualty, 625 F.2d 573 (5th Cir. 1980) (applying Georgia law) (holding that Aetna's allegedly wrongful refusal to pay the insured's disability benefits "constituted no more than the breach of any other contract obligating a party to pay a sum of money on the happening of a specified contingency," and no negligence or trespass claim may lie).
Plaintiff cites Davis v. Aetna Casualty and Surety Co., 169 Ga. App. 825, 314 S.E.2d 913 (1984), rev'd in part, 253 Ga. 316, 320 S.E.2d 368 (1984), as establishing an additional duty on the part of an insurer. Plaintiff's reliance on Davis is misplaced. In Davis, although the court held that a duty exists for "an employer or insurer to honor its obligation to compensate and thus not further injure an employee by impeding the latter's recovery," the court limited its holding to workers' compensation cases. Id. at 828. Thus, Davis is not applicable to this case which involves an insurer's failure to pay disability benefits.
In addition, Plaintiff cites Delancy v. St. Paul Fire Marine Ins. Co., 947 F.2d 1536 (11th Cir. 1991) (applying Georgia law) as establishing an additional duty on the part of an insurer. In Delancv the Court of Appeals for the Eleventh Circuit held that under Georgia law, the contractual relationship between the insurer and insured creates an independent duty separate from the contract itself, namely "a duty independent of the contract not to injure [the insured], and when from [the insurer's] negligent failure or refusal to adjust a claim, or from fraud or other bad faith, he sustains damages other than damages covered by the insurance contract, then an action in tort would be appropriate."Id. at 1546 (citing Leonard v. Firemen's Ins. Co., 100 Ga. App. 434, 437, 111 S.E.2d 773 (1959)).
Delancv, however, is distinguishable from the case at bar. First, the case on which the holding in Delancy is based is limited to liability insurance, not disability insurance. See Leonard. 100 Ga. App. at 437 (stating that "As to liability insurance, the company owes to the insured a duty independent of the contract not to injure [the insured]") (emphasis added). Second, Delancy concerned a liability policy that required the insurer to provide a defense to the insured, and addressed an allegation that the insurance company tortiously failed to settle a medical malpractice claim in which the insured was a defendant. Moreover, the other cases that Delancy cites in support of this additional duty refer to an insurer's failure to settle a claim. As one of those cases stated,
this case is not based upon the terms of the contract nor is the excess judgment based upon a bad faith failure to defend [the insured] rising from the contractual obligation so to do. The liability of the insurer in this case is based upon the fact that there was purportedly a timely offer of settlement within the limits of coverage and that the insurer negligently or in bad faith refused to adjust the account or to defend the insured (after the offer of settlement) when the amount of damages between the injured party and tortfeasor was being established.Alexander Underwriters Gen. Agency, Inc. v. Lovett, 182 Ga. App. 769, 772, 357 S.E.2d 258 (1987). Thus, the suit in Delancy was based purely on a tort, not a contract. In fact, the Court in Delancy stated that "[i]f, however, the insurer breaches the insurance contract by failing to provide a defense for the insured in a suit brought against him that is covered by the policy, the insured may sue only in contract." Delancy, 947 F.2d at 1546, n. 22 (citations omitted). Third, the fact that courts applying Georgia law repeatedly have dismissed tort claims involving alleged breach of insurance benefit contracts and have failed to find an independent duty on behalf of the insurer further supports the limited application of Delancy. See e.g.,Steptoe, 210 Ga. App. at 759; Jet Air, 189 Ga. App. at 403; Globe Life, 182 Ga. App. at 804; Pace, 176 Ga. App. at 739; Hanson. 625 F.2d at 575. Finally, Delancy is not applicable because it permits a tort action only if damages occurred other than those covered under the policy. Delancy, 347 F.2d at 1546.
Here, the Court views Plaintiff's alleged additional damages of emotional suffering and the sale of his assets as inextricably linked to those damages that would result from a breach of the contract itself. No separate injury occurred due to the alleged breach. Furthermore, the claims that Plaintiff asserts are all based on the contract itself and not on an independent duty outside of the contract. Plaintiff's case is simply one arising out of an alleged breach of contract. As stated before, it is inconsistent for Plaintiff to have a contract and tort claim both of which are grounded on the failure to pay benefits in a timely manner.
Without the alleged breach of the policy, these alleged damages would not have occurred. In other words, all of the Plaintiff's claimed injuries or damages directly arise from the alleged breach of the policies' terms. Because the suit is premised on contract, the Plaintiff may only sue in contract.
As the breach of an ordinary contract does not constitute a tort, and no additional legal duty exists on the part of the Defendant insurer, Plaintiff cannot maintain a tort action. Accordingly, his claim for fraud (Count III) and for intentional infliction of emotional distress (Count II) fail as a matter of law. See Lincoln National Life Ins, co. v. Davenport, 201 Ga. App. 175, 176, 410 S.E.2d 370 (1991) (holding that "an insurer's failure to pay benefits under an insurance policy does not, as a matter of law, rise to the level of such outrageousness requisite to a cause of action for intentional infliction of emotional distress").
Moreover, Plaintiffs fraud claim cannot survive dismissal for an additional reason — plaintiff failed to rescind the contract. When a party fails to rescind a contract, the party cannot bring an action for fraudulent inducement. Garcia v. Charles Evan BMW, Inc, 222 Ga. App. 121, 122, 473, S.E.2d 588 (1996) (stating that failure to rescind contract is fatal to claim in tort for fraud); See also. Dews v. Roadway Package System. Inc.. 227 Ga. App. 9, 10. 488 S.E.2d 94 (1997); Jones v. Cartee. 227 Ga. App. 401, 403, 489, S.E.2d 141 (1997); Pantray v. Northwest Publishing. Inc.. 931 F. Supp. 865, 873 (S.D. Ga. 1996).
In responding to the Defendant's first part of its motion to dismiss, Plaintiff also argues that his case presents facts upon which a claim for a breach of fiduciary duty exists. This argument also fails. Under Georgia law, no fiduciary relationship exists between an insured and an insurer. Fowler v. Prudential Property Casualty Ins. Co., 214 Ga. App. 766, 167, 449 S.E.2d 157 (1994);Hvde v. Acceleration Life Ins. Co., 211 Ga. App. 153, 155, 438 S.E.2d 385 (1993). Consequently, any claim that the Defendant breached a fiduciary duty is dismissed.
III.Punitive Damages.
In Counts II and III of Plaintiff's complaint, he seeks to recover punitive damages based on the alleged "willful, wanton, and intentional misconduct, of the Equitable." These claims for punitive damages fail. Under O.C.G.A. § 13-6-10, "exemplary damages shall never be awarded in cases arising on contracts." Consistent with this language, Georgia Courts have held that punitive damages are not available when the liability of a defendant is based on the alleged breach of the express terms of a contract. Wells v. New York Life Ins. Co., 195 Ga. App. 79, 30, 392 S.E.2d 251 (1990); Bennett v. Associated Food Stores, Inc., 118 Ga. App. 711, 716, 165 S.E.2d 581 (1968). Because Plaintiff's case solely is a contract action, no punitive damages are recoverable.
IV. O.C.G.A. § 33-4-6 and extra-contractual damages.
As part of Count-I, Plaintiff seeks to recover attorney's fees and expenses. In part, that claim is asserted under O.C.G.A. § 13-6-11 which provides for the statutory recovery of attorney's fees when a party acts in bad faith, is stubbornly litigious, or causes unnecessary trouble and expense. In actions involving the alleged breach of an insurance contract, however, O.C.G.A. § 33-4-6 provides the exclusive source of recovery for attorney's fees and other penalties. See Davenport, 201 Ga. App. at 176 (holding that O.C.G.A. § 33-4-6 is exclusive remedy for failure of insurer to pay benefits, and that "additional damages to compensate plaintiff for expenses of litigation are not recoverable pursuant to O.C.G.A. § 13-6-11 unless other elements of damages are recoverable"). Therefore, Plaintiff's claim for attorney's fees and expenses in Count I is dismissed to the extent it is based on O.C.G.A. § 13-6-11.
CONCLUSION
The Court DISMISSES any tort actions that the Plaintiff has asserted. Therefore, the Court DISMISSES Count II's claim for intentional infliction of emotional distress, and Count Ill's claim for fraud or breach of fiduciary duty. In addition, the Court DISMISSES Plaintiff's claims for punitive damages. Finally, because O.C.G.A. § 33-4-6 provides the exclusive remedy for breach of an insurance contract, Plaintiff's claim for attorney's fees and expenses pursuant to O.C.G.A. § 13-6-11 is DISMISSED. Accordingly, the only claim that remains for trial on August 23, 1999 is Plaintiff's claim in Count I for breach of the insurance contract and any remedies O.C.G.A. § 33-4-6 provides.