317 Ga. App. 280
Ga. Ct. App.2012Background
- Byrd sued USAA for breach of contract and bad faith over USAA's denial of Byrd's theft loss claim for his insured 2005 Lamborghini.
- Byrd parked the car at Jordan's dealership on March 4, 2008; Byrd and Jordan had a routine where Byrd would sell to Jordan with Jordan handling the sale to a buyer.
- Jordan's brother was involved in the dealership business; Byrd had no dealings with him.
- Jordan's brother allegedly sold Byrd's car to a buyer who paid $225,000; Byrd canceled his USAA policy on May 24, 2008.
- Byrd later learned the buyer paid $225,000; the car dealer paid Jordan’s brother; the dealership closed and Jordan and his brother were unreachable.
- USAA denied Byrd's July 21, 2008 theft claim, asserting no felonious taking occurred; Byrd alleged theft by taking or theft by conversion with fraudulent intent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether theft by conversion with fraudulent intent provides coverage | Byrd argues theft by conversion occurred with fraudulent intent. | USAA argues no theft due to lack of felonious taking and lacking proven fraud. | There is a genuine issue of material fact; summary judgment improper. |
| Whether ratification of the sale negates coverage | Byrd maintains no ratification occurred or that it is not dispositive. | USAA contends ratification defeats coverage. | Pretermitted; court treats ratification as non-dispositive to outcome given theft coverage issue. |
Key Cases Cited
- DuPree v. South Atlantic Conference of Seventh-Day Adventists, 299 Ga. App. 352 (Ga. App. 2009) (summary judgment proper when no genuine issue of material fact)
- Cuyler v. Allstate Ins. Co., 284 Ga. App. 409 (Ga. App. 2007) (contract construction is a question of law; fact questions for jury when involved)
- Collier v. State Farm & Co. Ins. Co., 249 Ga. App. 865 (Ga. App. 2001) (policy theft exclusion and related standards)
- Canal Ins. Co. v. Wilkes Supply Co., 203 Ga. App. 35 (Ga. App. 1992) (theft policy interpretations and exclusions)
- Cincinnati Ins. Co. v. Tire Master of Thomaston, 183 Ga. App. 64 (Ga. App. 1987) (theft policy interpretations under Georgia law)
- Tukes v. State, 250 Ga. App. 117 (Ga. App. 2001) (criminal intent considerations in theft/larceny analysis)
- Western Heritage Ins. Co. v. Newcastle Auto Sales, 249 Ga. App. 262 (Ga. App. 2001) (interpretation of theft in insured losses)
- Cole v. State, 186 Ga. App. 243 (Ga. App. 1988) (statutory and criminal intent considerations)