Preferred Risk Mutual Insurance v. Thomas, 153 Ga. App. 154

Preferred Risk Mutual Insurance v. Thomas

153 Ga. App. 154

Ga. Ct. App.

1980

Check Treatment

Deen, Chief Judge.

Appellees brought this action against Preferred Risk Mutual Insurance Co. to recover the amount of a judgment entered against an uninsured motorist, bad faith penalties, and attorney fees. The jury awarded the Thomases $10,190.73 plus interest and court costs, found that Preferred Risk acted in bad faith and awarded a penalty of $2,547.68 and $4,200 for attorney fees.

1. After a verdict and judgment have been entered, this court cannot review a judgment denying a motion for summary judgment because that issue became moot when the court heard evidence at trial. Talmadge v. Talmadge, 241 Ga. 609 (247 SE2d 61) (1978).

2. Appellant contends that the trial court erred in denying its motion for a judgment notwithstanding the verdict as to the award of bad faith penalties. We have examined the entire transcript of the trial and find that there was evidence from which the jury could determine that appellant acted in bad faith and therefore we must affirm under the "any evidence” rule. Winston Corp. v. Park Elec. Corp., 130 Ga. App. 508 (203 SE2d 753) (1973).

3. Appellant also enumerates as error the trial court’s denial of its motion for a judgment notwithstanding the verdict as to the award of attorney fees arguing that the Thomases failed to lay a proper foundation as set forth in Altamaha Convalescent Center v. Godwin, 137 Ga. App. 394 (224 SE2d 76) (1976). The record shows that appellant failed to raise an objection based on this issue at trial. Similarly, no objection was raised at trial to the inclusion of several expense items. *155This enumeration is without merit as appellant cannot raise these issues for the first time on appeal. Tyler v. State, 147 Ga. App. 394 (249 SE2d 109) (1978).

Argued November 5, 1979 Decided January 9, 1980 — Rehearing denied January 24, 1980. Malcolm S. Murray, William A. Dinges, for appellant. J. Douglas Parks, Robert J. Reed, for appellees.

Judgment affirmed.

Shulman and Carley, JJ., concur.