*1 Summary judgment appropriated on the conversion for themselves. therefore authorized. claim was Phipps,
Judgment JJ., and concur. Barnes affirmed. 18, Decided March April 8, 2002 denied
Reconsideration DuBose, Winkler, Winkler, Davis, C. Wilson & H. James DuBose Jeffrey appellants. Davis, R. Jeffrey Murphy, Bloom,
Powell, Goldstein, W. Frazer & Simon H. Kelley, appellees. & FIRE INSURANCE
A01A1864. CROSS et al. v. TOKIO MARINE COMPANY,LTD. et al. Judge. Presiding Smith, Jacquelyn filed Tokio Marine &
Michael and Cross Management, Company, Inc., Ltd., Fire Insurance Tokio’s former Tokio Marine and Tokio), attorneys (collectively alleging they misrepresented by million limits several dollars the in a Tokio’sinsured insured suit for filed granted
after an automobile collision. The trial court sum- mary judgment in favоr of Tokio denied the Crosses’ motion for partial summary judgment, appeal. They and the Crosses contend concluding that the trial court erred that no cause of action existed Georgia under remained as to whether law for their claims and that no material issue of fact a suffered harm as result of Tokio’sfail- accurately. challenge ure to disclose the trial limits also partial summary judgment denial court’s liability, the issue of that claim was admitted. We conclude properly partial the trial denied the court Crosses’ motion for respond because Tokio’sfailure to to a settlement liability. find offer was not an admission of court though We also granted summary judgment properly because, al- misrepresent coverage, Tokio did indeed the limits of cognizable suffered no harm. We therefore affirm the Crosses ment below. 1997, insured, Patricia
The record shows that June Tokio’s Williams, were involved in a vehicular acсident and Michael Cross injured. attorney sent a letter to Tokio and Cross was October (a) (1) (2), citing requesting 1997, coverage. Kathy Adams, the name of each insurer and the limits of responded enclosing copy Tokio, letter, claims examiner for the declarations of a contract of insurance issued to page American $1,000,000. Honda. That disclosed a page liability coverage limit of In July the Crosses’ made a demand Tokio to upon settle the Crosses’ claims for upon specials, “the injuries nature of and future past, present pain suffering.” time, At that Cross had sustained medical of more than *2 $15,000. wages lost of more thаn thereafter, Shortly Cross and his wife filed Wil- $1,204,000 liams. A jury awarded the Crosses in damages, ment was entered on the later, verdict. one month Approximately Tokio’s counsel first informed the Crosses’ counsel that its insured $2,000,000, had coverage $1,000,000 of rather than the that been filed, disclosed before suit was and then informed the Crosses’ cоun- sel that the coverage actually $7,000,000.
underlying lawsuit was not appealed.
This lawsuit was filed in March violation alleging of OCGA (d), swearing 16-10-71, 33-3-28 false under § fraud and § mis- representation, Racketeer Influenced & Corrupt Organizations Act and seeking violations pre-judgment interest under OCGA 51- § (b). 12-14 The Crosses claim that because of Tokio’s misrepresenta- limits, tion of the cоverage they recovered substantially less their original lawsuit than the full value claim. Tokio moved for summary judgment, alleging private right no of action exists under OCGA the Crosses did not a proper § make statute, demand under that and that notwithstanding any misrepre- sentation, the Crosses received the full value of their claim in thе judgment, they accepted this in satisfaction of their claim and did not move to set aside the even after they became aware of the misrepresentation. The Crosses’ motion for partial summary judgment was upon their contention that Tokio admitted lia- bility when it failed to respond to a letter including statements Tokio had misrepresented coverage.
1. OCGA provides: 33-3-28 § (a) (1) Every insurer providing casualty insur- ance this state and which is or be liable all or a pay part claim shall within provide, days a written receiving request claimant, statement, from the oath, under of a officer corporate or the insurer’s claims manager stating with to each known of insur- policy it, by ance issued excess or including insurance, umbrella insurer, the name insured, the name of each and the limits of Such insurer may provide a copy declaration of each page such lieu of providing such information. The request claimant’s shall set forth under sрecific the claim asserted and shall be oath the nature of statutory overnight by mailed certified mail or insurer (d) delivery. provided . . . The information to a claimant or (a) required Code his subsection of this sec- upon discovery tion shall amended of facts inconsis- provided. tent with or addition to the information (d) This court has held that this statute does not subsection private right create a of action an insurer that breaches it specifically right the statute because does not include such a and fail comply subject ure to with the statute comes within the conduct regulatory sanctions the Insurance Commissioner as thе exclusive remedy. Security Co., Generali — U. S. Branch v.Southeastern Ins. (2) (a) (493 731) (1997). App. 277, v. State Parris 244) (1997), Co., Farm &c. Ins. this court language creating pri held that the absence of right “strongly legislature’s vate of action indicates the intention that Here, no such cause of action be created said statute.” Id. at 524. “[t]he ruling regard.” Pаrris, inas trial court did not err in its in this Id. recovery
We held in Parris that no could be had for fraud or false *3 swearing plaintiffs because the settled their claims after the insurer original misrepresentation, corrected its therefore settled knowledge coverage” “with full of all insurance and could no show damages. actual Id. at 525. But this court was careful to indicate that оpinion its turned proposi-
on the issue of and does not stand company protected tion that an insurance will be from liabil- ity long coverage precedes as full disclosure of insurance any a settlement. Such a rule would emasculate duties § created of false fraud, the laws of and the laws
swearing. Improper reporting . . . insurance proper result under a factual scenario. “proper
Id. at 525-526. The Crosses contend that this is such fac- agree. tual scenario.” We do not App. Co., In Merritt v.State Farm &c.Ins. 442 Ga. SE2d
180) (2000), which was decided after the final was entered “proper case, in this this court noted it factuаl scenario” brought before it. Id. at 446. Merritt State Farm for swearing, fraud, violations, false and RICO misrepresentation, claiming the insurer failed to $1,000,000 dis- disclose existence of a policy previously umbrella until after she had settled for the policy $250,000. Parris, closed limits of Guided we reversed grant The record to State Farm. court’s adjuster initially any showed that State Farm’s concluded “without investigation” further that the claim was valued excess of dis- years policy $250,000. limits of Id. at 448 Almost two after closed swearing $250,000, limit State Farm reached a “regional $500,000. that Merritt’s claim was worth We officedecision” presented concluded, therefore, thаt Merritt “some evidence from jury that she lost at least the use of which a could conclude cognizable. period for some of time” and that such were Id. contrast, In the Crosses did not settle their claims fully fairly jury, Tokio’sinsured. Their claims were tried before a presented which returned a verdict on the evidencе of the damages. coverage usually Insurance is not disclosed to a jury, jury knowing and the here returned its verdict without existence or the amount of Terrell, See Bennett v. (2) (481 583) (1997). The Crosses prove damages, therefore cannot the elements of causation and which are essential to their claims Tokio. сannot show greater recovery misrep- would have made a but for Tokio’s resentation. presented purporting
The affidavits to show that significantly the conduct of the case would have differed had the accomplish Although actual limits been disclosed do not this. the affi- having given by “experts,” they davits characterized as been do specify strategy changed not how trial would have or how the changes jury. any testimony regard- Indeed, would have affected the ing jury what a would have done under different circumstances is necessarily speculative. part, therefore, relevant the affidavits speculation, рeculation conjecture by “[s] consist of mere [are] expert speculation conjecture.” still Bankers Health &c. Ins. (1) (150 365) (1966). Fryhofer, App. 107, Co. v. misrepresentation Moreover, the Crosses were aware of the they accepted before final from Tokio was entered and before the check judgment. Further, satisfaction of the their settlement figure demand was for a exists, the disclosed below amount. No evidence *4 beyond speculation, they changed would have this amount known additional existed.1 Finally, in addition to these reasons the Crosses cannot succeed Tokio, in this lawsuit did not move to set aside the underlying litigation. in ment the This lawsuit is therefore an indi- judgment, prohibited by rect attack on that which is statute. Under out, conduct, pointed holding As the trial court this does not condone Tokio’s may by well the be addressed Insurance Commissioner. (b), judgment may by § for new attacked a motion a only in rendition. The aside, the court of tо set trial or a motion underlying County prosecuted Court, but in Cobb State lawsuit was County brought Therefore, State Court. in Fulton this action contrary analysis special concurrence, doctrines of in the the the to relitigation apply barring estoppel judicata here, res and collateral litigated litigated iden- have been between were or could issues that party privies. Although parties Tokio was not a their tical privy brought by insured, it is to Tokio’s lawsuit American States it stands in its insured’s shoes. its insured because 360) (1) (b) (477 App. 194, 195 Walker, Co. 223 Ga. Ins. v. (1996). did not err Tokio’s The trial court therefore summary judgment. motion for argue trial court erred in
2. The Crossеs partial summary admitted motion for ity. because Tokio liabil- completely point argument This is without merit. first to a purposes in a “for statement Tokio brief the court that only, allega- this we will assume the truth of the Crosses’ authenticity documents tions” and the truth affidavits sub- beyond mitted the Crosses. It is cavil that such a statement doеs liability, only argument support- not admit but serves as a basis for ing assumptions position the taken Tokio the motion. Such commonly only purposes during made for limited the course of litigation. argue, relying upon § Crosses also OCGA respond orig- when it
admitted failed to a letter from their condemning inal counsel the failure tо disclose the excess policy. agree. provides ordinary “[i]n We do not The statute the good requires duty business, answer, course of when faith an it is the party receiving letter from another to answer within a rea- presumed propriety sonable acts mentioned Otherwise time. he is admit the adopt correspondent the letter of his and to them.” specific principle is This a more instance of the embodied require denial, 24-3-36 that when circumstances an answer or an silence amount to admission. only respond
But an admission arises from failure to a let- ordinary ter sent in the course of business. This letter was not sent in оrdinary attorneys engaged business, the litigation. course of but between presented settle,
Further, the letter itself an offer to and it recipient respond, if offer indicated that did not would be duty recipient withdrawn. respond. It follows that no existed on the Mere silence cannot establish waiver or admission unless Mary’s Hоsp. obligation respond. Cohen, v. exists to See St. &c. (1) App. The trial court did *5 744 err in the partial summary
not for judgment this ground. J., Barnes, J., Judgment concurs. Phipps, spe- concurs affirmed. cially as to Division 1. Barnes, Judge, concurring specially.
Although fully I concur the Divi- and, analysis with conclusion 2 sion and concur that the trial court did err in sum- not Marine, I mary write separately to becаuse I cannot with all the agree analysis contained in Division 1 reasoning the majority summary Tokio Marine is entitled to opinion. ment because the Crosses cannot show they any damage suffered as result misrepresentation of Tokio Marine’s amount the insurance available Tokio Marine’s insureds. Crosses’ pre-trial erroneously demand was less than even the low about, amount of coverage knew and the case was tried to a jury $1,204,000 who awarded without to the amount of coverage available.
I however, do not agree, with the majority’s conclusion that the judicata doctrines res and collateral estoppel apply here. This action is not a for damages against tortfeasor, claim the has which tried, already been but a against claim the insurance for company violating the directives of that an provides insurer which be liable to a claim pay provide shall a statement showing the amоunt of its Therefore, insured’s the fact the was satisfied in claim the should not fore- underlying close this action for independent insurance its company with failure the this comply law of State.
These are not claims opposing party, counsel party, opposing Shepherd witnesses. See v. Epps, App. (347 289) 685, 686 Nor dо the Crosses seek additional recovery from the former opposing party because of the same cause Instead, action. suing former opposing party’s insurer its own See Toporek, 169, actions. v. Zepp 636) (1993). Therefore, while a previous settlement or verdict may be here, relevant issue оf damages, it is it not in should prevent itself the claimants from bringing an action company failing provide such pur- basic information reasons, suant to the statute’s directive. For these I concur specially in the majority opinion. February 14, Decided April
Reconsideration denied Cleveland, Downey Williams, & Y.Kevin Sean L. Hynes, Johnson Johnson, Cooper, Jr., & Jean for appellants. E. Smith, Jr., L. Slover, Rush S. Hall, Booth, & Smith Jennifer Manning Morris, Graham, & Koster,
McKernan, Martin, Thоmas A. R. Paul appellees. Hassett, Pardi, for Jessica F Lewis E. BUGG. STRINGER v. A01A2101.
(563 SE2d *6 Presiding Judge. Smith, George Stringer landlord, her former filed suit Connie trespass, wrongful conversion, Bugg, alleging eviction, claims for (FBPA, OCGA Practices Act the Fair Business assault, violation of attorney 10-1-407), exemplary through and §§ 10-1-390 Bugg’s granted on the motion for The trial court fees. grantеd Stringer’s regard pleadings claim, motion FBPA with Bugg’s summary judgment rent, partial for counterclaim as to for Stringer’s summary judgment Bugg’s granted all as to denying prior prior remaining cross- two orders claims, and vacated rulings summary judgment. Implicit in these is motions trial court ment on her claims summary judg- partial Stringer’s motion for also denied wrongful trespass, conversion, and eviction, contending Stringer appeals, exemplary fees. Bugg summary judgment court erred the trial summary judgment. partial denying find Because we her motion for Stringer gave adequate FBPA, we her claim under the notice of Bugg grant the trial court’s reverse remaining Stringer’s claims we find that claim. Because judicata, Bugg find that of res we also are not barred the doctrine Bugg granting summary judgment on these court erred the trial genuine with of material fact remain Because issues claims. Stringer’s motion, however, we find that the to the issues raised summary judgment. her motion for did not err trial court part part. and reverse in thereforе affirm We Stringer after the conclu- filed this action The record shows that magistrate Bugg dispossessory filed her action sion of court. Shortly Bugg thereafter, on October 1997. filed that action agreement Bugg Stringer of that mat- in satisfaction reached an filing Bugg an answer would ter, unnecessary, Stringer after assurances from disрossessory not file an answer to did posses- Bugg agreement, a writ of obtained action. violation of doing informing Stringer he was 21,1997, without sion on November agreement. informing magistrate On court of the without so and Stringer Bugg forcibly home, her set- evicted from 4,1997, December ting refusing personal property later out on the street and her possessions she had left behind. certain other allow her to reclaim