Opinion
37490.
DECIDED FEBRUARY 3, 1959.
Action on insurance policy. Polk Superior Court. Before Judge Foster. October 16, 1958.
Dunaway, Embry Shelfer, Wm. S. Shelfer, for plaintiff in error.
Marson G. Dunaway, Jr., contra.
The policy sued on provided as a condition precedent to the institution and maintenance of an action thereon that proof of loss be submitted to the insurer within sixty days after the occurrence of the loss, and since the petition shows that no proof of loss was submitted to the insurer within sixty days after the loss, and the petition does not otherwise show a waiver of such requirement or conduct on the part of the insurer dispensing with the necessity of that requirement or other conduct which would amount to an estoppel, the petition did not state a cause of action, and the court erred in overruling the defendant's general demurrer.
DECIDED FEBRUARY 3, 1959.
D. Earl Wood and John Hoyt Wood sued Delta Insurance Company on a contract of insurance. Their petition in substance alleged: that under date of November 21, 1956, the defendant issued and delivered to the plaintiff its automobile insurance policy, a copy of which is attached to the petition and marked Exhibit "A"; that the full amount of the earned premium specified in said policy was paid by the petitioners when due and the defendant company accepted said premium in consideration for the coverage afforded by the automobile policy herein referred to; that on April 5, 1957, at a time when said policy was in full force and effect, petitioners sustained loss and damage to their insured automobile by collision with another object, the same being one of the coverages afforded by the defendant company under its policy and for which it had collected and retained the amount of the earned premium; that petitioners' automobile was damaged beyond repair and said total damage represented a loss to petitioners of twenty-two hundred ($2,200) dollars; that immediately following said loss and damage, petitioners gave defendant notice thereof, and did on June 13, 1957, request that proof of loss forms be provided them unless adequate proof of loss had already been received by defendant company; that defendant failed to transmit forms for the filing of formal proof of loss, and by a letter on June 13, 1957, to defendant, plaintiffs demanded payment of the loss and damage sustained by the petitioners and informed defendant that in default of payment, suit would be brought; that petitioners have otherwise performed all the conditions imposed on them by the terms and provisions of said policy of insurance, as well as any and all requirements in connection with said loss and damage made on them by the defendant company; that defendant company has persisted in its failure and refusal to pay petitioners' claim under said policy.
The defendant's general and special demurrers to the petition were overruled, and it excepts.
One of the conditions of the policy was that the insured would "file proof of loss with the company within sixty days after the occurrence of loss, unless such time is extended in writing by the company." An extension was not alleged. The loss occurred on April 5, 1957. While immediate notice of the loss was given to the insurer, as required by the policy, no proof of loss was ever filed or furnished. The plaintiffs on June 13, 1957, requested "Proof of Loss" forms from the insurer and even this request was more than sixty days after the loss. The policy did not require the insurer to furnish "Proof of Loss" forms. The policy went into detail on how proof of loss should be submitted, as follows: ". . . in the form of a sworn statement of the insured setting forth the interest of the insured and of all others in the property affected, any incumbrances thereon, the actual cash value thereof at time of loss, the amount, place, time and cause of such loss, the amount of rental or other expense for which reimbursement is provided under this policy, together with original receipts therefor, and the description and amounts of all other insurance covering such property." This provision of the policy made it perfectly clear how a proof of loss should be submitted.
The policy further provided: "Payment for loss may not be required nor shall action lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy nor until thirty days after proof of loss is filed and the amount of loss is determined as provided in this policy." Thus, the filing of a proof of loss within the prescribed time was a condition precedent to the institution and maintenance of an action on the policy. See Cooper v. Glens Falls Indem. Co., 93 Ga. App. 127 ( 91 S.E.2d 120) and citations. No facts are alleged to show a waiver of the requirements for filing proof of loss and none is alleged to show that the insurer had refused payment or denied liability as would obviate the necessity of furnishing a proof of loss. No facts showing estoppel are alleged.
For the reasons stated above, the petition did not state a cause of action and the court erred in overruling the general demurrer thereto.
Judgment reversed. Quillian and Nichols, JJ., concur.