Opinion
41804.
ARGUED FEBRUARY 7, 1966.
DECIDED MARCH 11, 1966.
Action on insurance policy. Fulton Civil Court. Before Judge Webb.
Troutman, Sams, Schroder Lockerman, Robert L. Pennington, John D. McLanahan, Gerald P. Thurmond, for appellant.
W. D. Ballard, Troy R. Thigpen, for appellee.
Where an action for a loss under an insurance policy is not filed within 12 months from the time of the alleged loss as the policy requires, a petition which fails to allege facts showing a waiver or estoppel against the insurer as to the time of filing the action, is subject to a general demurrer. The court erred in overruling the general demurrer because of the absence of such essential allegations.
ARGUED FEBRUARY 7, 1966 — DECIDED MARCH 11, 1966.
C. A. Powell, on June 14, 1965, instituted an action against Niagara Fire Insurance Co., seeking to recover for loss and damage alleged to have resulted from a windstorm under the terms of an insurance policy issued by the defendant to the plaintiff, which was attached to and made a part of the petition by an amendment thereto. The petition alleged: that on December 31, 1963, plaintiff suffered damage from a windstorm to the insured premises and that on January 13, 1964, plaintiff requested a proof of loss form from the defendant; that the plaintiff filed his proof of loss with defendant on or about January 25, 1964, and that defendant, instead of making payment as required by the policy, began a course of evasive conduct by employing the General Adjustment Bureau, "to obstruct, confuse and mislead plaintiff and prevent plaintiff from receiving payment from defendant in any amount whatsoever"; that defendant began making unreasonable and ridiculous demands of plaintiff by criticizing his proof of loss statement as deficient; that this bad-faith course of conduct "continues, in that defendant now states to plaintiff that the proof of loss does not prove the loss was a windstorm, and plaintiff is constantly informed after each piece of correspondence to such effect as, `For lack of sufficient information, the undersigned insurance company neither admits nor denies liability, waives nor intends to waive any rights or defenses it may have, all of which rights and defenses are hereby specifically reserved'"; that defendant, without just cause and acting in bad faith, "continues to refuse payment, and to equivocate and evade and harass plaintiff." The policy attached to the petition provided: "No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss." The defendant demurred to the petition on the ground that the plaintiff's cause of action was barred in that no suit was filed within 12 months from the date of the alleged loss and that, therefore, plaintiff's petition fails to set forth a valid cause of action against the defendant. The trial court overruled the defendant's demurrer and it appealed.
1. A one-year contractual limitation upon the filing of such an action as is here involved has been held valid by the Supreme Court and this court. Springfield Fire c. Ins. Co. v. Carter, 110 Ga. App. 382 (1, 3) ( 138 S.E.2d 590); Aiken v. Northwestern Mutual Ins. Co., 106 Ga. App. 220 ( 126 S.E.2d 630) and cit.
2. Where an action is brought on a policy containing a one-year contractual limitation upon the filing of an action on the policy the petition must allege either a waiver of the provision or an estoppel against the insurer to rely on the provision of the policy limiting the time for filing the action. Neese v. Milwaukee Mechanics' Ins. Co., 84 Ga. App. 473 ( 66 S.E.2d 172); Delta Ins. Co. v. Wood, 99 Ga. App. 58 ( 107 S.E.2d 693).
3. In the absence of allegations in the petition that the insurer had done anything which could be construed as a waiver of the time for filing the action or to show an estoppel against the insurer to assert the limitation, the petition was subject to the general demurrer. General Ins. Co. of America v. Lee Chocolate Co., 97 Ga. App. 588 ( 103 S.E.2d 632); Stanley v. Sterling Mutual Life Ins. Co., 12 Ga. App. 475 ( 77 S.E. 664); Knights of Ku Klux Klan v. Fidelity Deposit Co. of Maryland, 47 Ga. App. 12 ( 169 S.E. 514). There is no contention that there was an agreement for an appraisal or arbitration. See also Underwriters Agency v. Sutherlin, 55 Ga. 266, 267 and Gibraltar Fire Marine Ins. Co. v. Lanier, 64 Ga. App. 269 ( 13 S.E.2d 27). Cases such as Cordell v. Metropolitan Life Ins. Co., 54 Ga. App. 178 ( 187 S.E. 292) are not applicable here because in those cases the limitation of action was not dated from the time of loss but from the expiration of the time within which a proof of loss was required to be filed.
The court erred in overruling the general demurrer to the petition.
Judgment reversed. Frankum and Pannell, JJ., concur.