Opinion
74847.
DECIDED NOVEMBER 19, 1987. REHEARING DENIED DECEMBER 2, 1987.
Action on policy. Gwinnett Superior Court. Before Judge Huff.
Sam F. Lowe, Jr., W. Howard Fowler, for appellant.
John H. Jacobs, for appellee.
Appellant issued a policy of fire insurance to appellee, and the house insured under the policy burned on May 5, 1985. Appellee brought suit against appellant under the policy on September 6, 1985, but dismissed that suit without prejudice on May 22, 1986. Another suit, purporting to be a renewal of the first, was brought in another county on July 21, 1986. Both parties subsequently moved for summary judgment. This appeal is from the denial of appellant's motion and the grant of appellee's.
1. Appellant's first, second, fourth, and fifth enumerations turn on the trial court's holding that appellee's second suit, brought outside the contractual period of limitation established in the policy, was validly renewed by filing it within six months of the dismissal of the first suit. We are obliged to agree with the trial court that the issue is controlled by Birmingham Fire Ins. Co. v. Commercial Transp., 224 Ga. 203 (1) ( 160 S.E.2d 898) (1968). There, as here, a suit was filed within the 12-month limitation period contained in the policy, dismissed by the plaintiff, then brought again within six months of the dismissal, but outside the contractual period of limitation. Appellant's reliance on Melson v. Phenix Ins. Co., 97 Ga. 722 ( 25 S.E. 189) (1895), is misplaced since that case is inconsistent with the more recent decision in Birmingham Fire Ins. Co., supra, and the most recent decision of the Supreme Court on an issue is controlling. Charles Rossignol, Inc. v. Prophecy Corp., 177 Ga. App. 245, 247 ( 339 S.E.2d 288) (1985). Our decision in Porter v. Allstate Ins. Co., 172 Ga. App. 657 ( 324 S.E.2d 515) (1984), being inconsistent with Birmingham Fire Ins. Co., supra, and having been decided later than it, must be overruled. See Charles Rossignol, Inc., supra.
The trial court did not err in holding that the suit was timely.
2. Appellant's remaining enumeration of error is directed to the portion of the trial court's order awarding damages to appellee. It is clear from the record that appellee was entitled to a judgment on the issue of liability: he set out sworn facts showing fulfillment of the policy's conditions precedent to recovery, and appellant submitted no evidence to counter that showing. See Southern Trust Ins. Co. v. Braner, 169 Ga. App. 567 (1) ( 314 S.E.2d 241) (1984). However, the record does not contain sworn proof of the dollar amount of the recovery to which appellee is entitled, so the grant of specific damages was error notwithstanding appellant's failure to respond to the motion for summary judgment. "On motion for summary judgment the burden of proof is on the moving party and does not shift to the respondent until a prima facie right to such judgment is shown. [Cits.]" International Systems v. City of Jackson, 161 Ga. App. 423 (2) ( 288 S.E.2d 344) (1982).
3. We also find the grant of bad faith penalties pursuant to OCGA § 33-4-6 to be error. "`(T)he existence, or not, of bad faith is a jury question.' [Cit.] The issue of bad faith should be judged by the case made at trial, not by the preliminary proofs or other ex parte affidavits. [Cit.]" Stegall v. Guardian Life Ins. Co., 171 Ga. App. 576 (2) ( 320 S.E.2d 575) (1984).
4. In view of the reversal of part of the judgment in this case, appellee's motion for damages for a frivolous appeal is denied.
In summary, the judgment of the trial court is affirmed insofar as it rejects appellant's contractual period of limitation defense and establishes appellee's right to recover damages pursuant to the policy involved. Insofar as it decides liability for statutory bad faith penalties and awards a specific dollar amount of damages, it is reversed.
Judgment affirmed in part and reversed in part. Birdsong, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Carley, Sognier, Pope, and Beasley, JJ., concur.