POPHAM v. LANDMARK AMERICAN INSURANCE COMPANY Et Al.
340 Ga. App. 603
| Ga. Ct. App. | 2017Background
- Popham sought commercial liability coverage for his tree-removal business through independent agent Steven Greenberg; Greenberg obtained a Tapco quote and Popham paid a down payment on November 17, 2010.
- Tapco issued a binder stating temporary coverage would continue only if Tapco received a completed application and premium by November 29, 2010; the binder expressly stated it would expire on its own terms and no cancellation notice rules applied to an expired binder.
- Greenberg mailed the application and premium on November 29 or November 30; Tapco did not receive them by November 29, so the binder lapsed; Tapco later received and deposited the check on December 9 and issued a policy effective December 9, 2010.
- A third party was injured on December 1, 2010; Popham was later default-judged in that suit and then sued Landmark and Tapco for negligence, breach of contract, bad faith, and sought punitive damages and fees, alleging coverage existed on December 1.
- The trial court granted summary judgment to Tapco and Landmark; Popham appealed, arguing (1) Greenberg was an agent of Tapco/Landmark, (2) a contract/coverage existed on December 1, (3) Landmark was improperly allowed to amend to assert statute-of-limitations, and (4) related bad-faith and damages claims should survive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Greenberg was agent of Tapco/Landmark | Greenberg was a subagent/broker with authority to bind Tapco/Landmark; his statements and certificate of insurance show agency | Defendants deny he had authority; no evidence insurer gave him authority or held him out as agent | No agency: plaintiff failed to show actual or apparent authority; summary judgment affirmed |
| Whether an insurance contract/binder covered Dec 1, 2010 accident | Binder was in effect because payment/application were mailed on deadline (mailbox rule contention) | Binder required receipt by Nov 29; Tapco did not receive payment by that date, so binder expired per its clear terms | No coverage: binder’s unambiguous terms required receipt by Nov 29; undisputed lack of receipt means binder lapsed |
| Whether Landmark could amend answer post–pretrial to assert statute of limitations | Landmark shouldn’t be allowed after scheduling/pretrial deadlines | Trial court has discretion; other defendants had asserted the defense and plaintiff had notice; no prejudice shown | Amendment permitted; no abuse of discretion because Popham showed no prejudice |
| Viability of bad-faith, punitive damages, attorney fees claims | These claims should proceed even without contract finding | Such claims are derivative of an underlying insurance contract/coverage claim | Moot/failed: without coverage, bad-faith and derivative claims fail |
Key Cases Cited
- Kinard v. Nat’l Indem. Co., 225 Ga. App. 176 (Ga. Ct. App.) (authority required to bind insurer determines agency)
- Kirby v. Nw. Nat’l Cas. Co., 213 Ga. App. 673 (Ga. Ct. App.) (apparent agency requires principal hold-out and justifiable reliance)
- Reed v. Auto-Owners Ins. Co., 284 Ga. 286 (Ga.) (courts apply clear, unambiguous contract terms as written)
- McDuffie v. Criterion Cas. Co., 214 Ga. App. 818 (Ga. Ct. App.) (binders are temporary contracts and governed by contract law)
- Hays v. Ga. Farm Bureau Mut. Ins. Co., 314 Ga. App. 110 (Ga. Ct. App.) (contractual language controls when unambiguous)