Opinion
67850.
DECIDED JUNE 18, 1984. REHEARING DENIED JULY 3, 1984.
Action on policy. Pierce Superior Court. Before Judge Blount.
C. Deen Strickland, for appellant.
Daniell S. Landers, for appellees.
Appellant Davis filed this action in 1982 against Donald H. Harris and The Hanover Insurance Company seeking additional PIP benefits pursuant to Jones v. State Farm Mut. Auto. Ins. Co., 156 Ga. App. 230 ( 274 S.E.2d 623) (1980), under an automobile insurance policy issued by Hanover, as well as punitive damages, attorney fees and the penalty provided by OCGA § 33-34-6. However, within 30 days from the rendering of the decision in Flewellen v. Atlanta Cas. Co., 250 Ga. 709 ( 300 S.E.2d 673) (1983), Hanover modified the subject insurance policy in conformity with the Flewellen decision and paid to appellant the accrued PIP benefits to which she was thereby entitled; Hanover has continued to make periodic benefit payments as appropriate. A default judgment has been entered against Harris. This appeal arises from the trial court's grant of summary judgment in favor of Hanover on the issues of punitive damages, attorney fees and penalty.
1. The issue raised by appellant's first enumeration of error is, under the facts in this case, controlled adversely to her by Government Employees Ins. Co. v. Mooney, 250 Ga. 760 (3) ( 300 S.E.2d 799) (1983). Accord Southern Guaranty Ins. Co. v. Rowland, 169 Ga. App. 554, 556 ( 313 S.E.2d 753) (1984).
2. Appellant's remaining enumeration of error asserts that genuine issues of material fact remain with regard to her claim for punitive damages pursuant to OCGA § 51-12-5. In support of this claim appellant contends that her decedent's signature on the optional benefits form was forged by Harris in his capacity as agent for Hanover. This claim, it is clear, sounds in tort. See OCGA § 51-6-2; Bankers' Health c. Ins. Co. v. Givens, 43 Ga. App. 43 (1) ( 157 S.E. 906) (1931). See generally Eliason v. Wilborn, 335 Ill. 352, 357-8 ( 167 N.E. 101, 68 ALR 350) (1929), aff'd 281 U.S. 457 (1930).
The evidence of record, construed most strongly in favor of appellant, shows that at the time of the alleged forgery Harris was acting as a "dual" agent, i.e., as agent for both appellant's decedent and Hanover. Harris' secretary's testimony that Hanover was the only "standard" company for which Harris brokered automobile insurance policies does not contradict Harris' testimony that he was an independent agent representing five or six different companies which wrote automobile insurance. See generally Nat. Property Owners Ins. Co. v. Wells, 166 Ga. App. 281 (2) ( 304 S.E.2d 458) (1983), and cits. "It is generally recognized that where an agent represents two adverse parties in a transaction with the knowledge and consent of both, neither principal is liable to the other for the tortious acts of the agent so situated where the opposite principal is not in complicity with the agent or in no way participates in the tortious act. Another way of stating this same principle is that the misconduct of a dual agent by consent cannot be imputed to either of the principals who is not actually at fault, since each of the principals is under an equal duty to exercise ordinary care in selecting and supervising the agent to protect his own interests." Hodges v. Mayes, 240 Ga. 643, 644 ( 242 S.E.2d 160) (1978). Since there is no evidence of record that Hanover in any way participated in the alleged forgery, the trial court did not err in granting Hanover's motion for summary judgment as to this claim. Compare Home Materials, Inc. v. Auto Owners Ins. Co., 250 Ga. 599 ( 300 S.E.2d 139) (1983), wherein the Supreme Court held that equity will not allow a principal to be relieved of responsibility for misrepresentations of a dual agent upon which the other principal relied to his detriment when the action is in contract. Judgment affirmed. Banke, P. J., and Benham, J., concur.