Aрpellant appeals the order of the trial court granting summary judgment to Southern General Insurance Company (“Southern General”) and denying appellant’s motion for рartial summary judgment | on his claim for legal expenses and attorney fees incurred in defending a declaratory judgment action brought by Southern General.
This suit arose out of an automobile accident which took place I while appellant was driving an automobile owned by Vicki Brown] (“Brown”) in which Brown was a passenger. Brown initiated a personal injury action against appellant in the State Court of Fulton I County for injuries allegedly incurred by Brown during the accident. [ Appellant’s insurance carrier, Southern General, defеnded the personal injury action on appellant’s behalf pursuant to a reservation ofl
In four enumerations of error, appellant contends thе trial court erred by granting summary judgment to Southern General and denying appellant’s motion because there were three legal theories under which appellant cоuld recover his legal expenses and attorney fees.
1. Appellant’s reliance on OCGA § 13-6-11 as authority for allowing a defendant to recover legal expenses and attorney fees for defending an action under the circumstances present in this case is misplaced. Although OCGA § 13-6-11 creates a cause of action for bad faith damages to a plaintiff for having to resort to litigation, no such provision is available to a defendant in the absence of “viable independent counterclaims asserting [a claim for relief independent of the assertion of the [plaintiff’s] harassment, litigiousness and bad faith in bringing [its suit].”
Florida Rock Indus. v. Smith,
2. Appellant’s reliance on OCGA § 33-7-15 (b.l) as authority for allowing him to recover legal expenses and attorney fees in the present action is similarly misplaced. This court has previously held that recovery of attorney fees under OCGA § 33-7-15 (b.l) is limited to those situations involving non-cooperation by an insured with his insurance company.
Hall v. Canal Ins. Co.,
3. The third Code provision upon which appellant relies as authority for recovery of legal expenses and attorney fees under the present circumstances is OCGA § 9-15-14. Subsection (a) of OCGA § 9-15-14 provides that “reasonable and necessary attorney’s fees and expenses of litigation shall be awarded to any party against whom anоther party has asserted a claim, defense, or other position with respect to .which there existed such a complete absence of any justiciable issue оf law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.” Subsection (b), on the оther hand, provides that “[t]he court may assess reasonable and necessary attorney’s fees and expenses of litigation . . . if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct. ... As used in this Code section, ‘lacked substantial justification’ means substantially friviolous, substantially groundless, or substantially vexatious.” Claims asserted pursuant to either subsection (a) or (b) are to be аdjudicated by the trial court without a jury. OCGA § 9-15-14 (f);
Ferguson v. City of Doraville,
The basis for appellant’s claim that he was entitled to attorney fees and litigation costs under OCGA § 9-15-14 was appellant’s belief that Southern General was obligated undеr the insurance policy to defend and pay the costs of appellant’s defense of the declaratory judgment action brought by Southern General by the following language: j
“II. Defense, Settlement, Supplementary Payments. With respect to such insurance as is afforded by this policy for bodily injury liability and for property damage liability, the comрany shall: (a) defend any suits against the insured alleging such injury, sickness, disease or destruction, and seeking damages on account thereof, evenl if such suit is groundless, false or fraudulent. ...” j
Cоntrary to appellant’s belief, this policy provision did not obligate Southern General to defend appellant in the declaratory action seeking a determination of Southern General’s liabilities and obligations under the insurance policy. The right of an insurance company to seek declaratory clarification of its obligations under an insurance policy has long been recognized by this court.
Richmond v. Ga. Farm &c. Ins. Co.,
The evidencе before the trial court was void of any showing of bad faith on the part of Southern General. Appellant contends that bad faith is evidenced by Southern General’s paymеnt, prior to the filing of the declaratory action, of a claim made by Georgia Power Company for property damage arising out of the same accident and has attached to his brief a copy of the check evidencing the payment to Georgia Power Company; however, the check was not part of the record before the trial court. “ ‘ “[A] brief or an attachment thereto cannot be used as a procedural vehicle for adding evidence to the record.” ’ [Cit.]”
Rowe v. Rowe,
Judgment affirmed.