Evans v. Ohio Casualty Insurance Company et al.
Court of Appeals of Georgia, No. A03A0933, decided November 14, 2003; reconsideration denied December 2, 2003 (Miller, Judge, for the court; Smith, C.J., and Ruffin, P.J., concurring). The complete opinion appears below. Our text comes from the Caselaw Access Project (case.law), Harvard Law School’s open archive of published U.S. case law, which supplies the opinion as printed in the official reporter at 264 Ga. App. 485. The reporter’s head matter is only the docket number, the caption, and the parallel-cite line “(591 SE2d 378)”; the caption and a court-and-date line are reprinted above the opinion, and the parallel-cite line is dropped. The archive’s text also places the reporter’s page-foot block inside the opinion, between two paragraphs of Division 2 — the “Decided November 14, 2003 / Reconsideration denied December 2, 2003” lines and the counsel listing (Samuel C. Evans, pro se; Drew, Eckl & Farnham and Harold M. Bagley, and McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Robert J. Hulsey, and Jon B. McPhail, for appellees). That block has been lifted out of the opinion and summarized in this paragraph instead. The complete list of repairs to the remaining text: the judge’s name line was set in bold, and the court’s single unnumbered footnote, which the archive prints as a bare final line with no reference mark, is labeled below as the footnote it is. The archive’s text of this opinion required no word repairs — no broken words to rejoin and no mis-scanned words to restore. No word of the court’s has been changed, condensed, reordered, or paraphrased.
The full opinion
EVANS v. OHIO CASUALTY INSURANCE COMPANY et al.
Court of Appeals of Georgia. No. A03A0933. Decided November 14, 2003. Reconsideration denied December 2, 2003.
Miller, Judge.
Samuel C. Evans sued Ohio Casualty Insurance Company and United Services Automobile Association (USAA) to settle claims for damage to property caused by fire. Both Ohio Casualty and USAA defended on the ground that any claim was barred because Evans did not comply with procedural requirements of the respective insurance contracts. The trial court granted summary judgment to Ohio Casualty and USAA, and Evans files a pro se appeal. We affirm in part and reverse in part.
Summary judgment is appropriate where “ ‘the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.’ ” Appleby v. Merastar Ins. Co., 223 Ga. App. 463 (477 SE2d 887) (1996), quoting Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991).
Viewed in this light, the evidence showed that property, owned by Evans and insured by both Ohio Casualty and USAA, was destroyed by fire on June 27, 1998. Ohio Casualty refused to settle any claim with respect to the property as did USAA. In the case of a loss to covered property, both contracts of insurance required, inter alia, that Evans send to the insurers, within 60 days after requested, a sworn proof of loss, and that Evans submit to an examination under oath as often as the insurers reasonably required.
- In three enumerations, Evans challenges the grant of summary judgment to Ohio Casualty, mainly arguing that he complied with the requirement that he give a statement under oath. Ohio Casualty argues that because Evans terminated the session in which he was giving his sworn statement, he did not complete this requirement of the insurance contract. We disagree.
On January 26, 2000, Evans submitted to the examination under oath. After being questioned for nearly three hours, Evans became upset about the manner in which he was being questioned, stated, “We’re going to suspend this … ,” and ended the examination. Just prior to leaving, Evans stated, “I intend to cooperate with a sensible examination … and … will contact Judge Russell’s chambers immediately and ask the court to appoint a supervisor or some means in which to get this thing done… .” He further stated that he was willing to reconvene at the court’s convenience and later set up a date, time, and place to continue the statement at the courthouse, which Ohio Casualty did not attend. Given this evidence, a jury could find that after three hours of questioning and a willingness to continue the examination with the assistance of the court, Evans substantially complied with the requirement of the insurance contract. As there is a genuine issue of material fact raised here by the evidence, the trial court erred in granting Ohio Casualty’s motion for summary judgment.
- USAA moved for summary judgment on the ground that following USAA’s request therefor, Evans failed to submit a proof of loss as required by the policy. Evans argues that USAA’s refusal to pay the claim waived the requirement of the proof of loss. He contends that USAA hired an investigator and stated that it was not certain if such loss was covered as the property was vacant.
Under OCGA § 33-24-40 (3), an insurer may investigate any loss or claim under a policy without waiving “any provision of a policy or … any defense of the insurer under the policy.” In addition, contrary to Evans’s argument, USAA’s defense (as asserted in the answer to the complaint) that Evans could not recover due to the fact that the dwelling was vacant did not relieve him of his obligation to comply with the requirements of the contract. As there was no evidence presented that Evans submitted a proof of loss as requested by USAA and as required by the contract of insurance, the trial court properly granted summary judgment to USAA.
Judgment affirmed in part and reversed in part.
Smith, C. J., and Ruffin, P. J., concur.
Footnote (the court’s single footnote; the archive’s text carries no reference mark for it, so it is set out here at the end, where the archive prints it).
Evans amended his complaint to also include as a defendant, Jon McPhail, counsel for Ohio Casualty. The court dismissed Evans’s claim against McPhail on the ground that the complaint failed to state a cause of action.
What it decided
Samuel Evans owned property that was destroyed by fire on June 27, 1998. It was insured twice — once by Ohio Casualty and once by USAA. Neither company would settle. Neither denied on the fire itself. Both defended on paperwork: Evans, they said, had not done what the policy told him to do after the loss. Both policies required the same two things — a sworn proof of loss sent within 60 days after it was requested, and submission “to an examination under oath as often as the insurers reasonably required.”
Evans lost in the trial court against both carriers, appealed without a lawyer, and came out of the Court of Appeals with a split.
Against Ohio Casualty, he won a reversal — because a jury could find substantial compliance. On January 26, 2000, Evans sat for his examination under oath. After “nearly three hours” he “became upset about the manner in which he was being questioned,” said “We’re going to suspend this … ,” and ended the session. What he did next is the whole case. Before leaving he stated on the record: “I intend to cooperate with a sensible examination … and … will contact Judge Russell’s chambers immediately and ask the court to appoint a supervisor or some means in which to get this thing done… .” He said he was willing to reconvene at the court’s convenience. He then “set up a date, time, and place to continue the statement at the courthouse, which Ohio Casualty did not attend.” On that record, the court held, “a jury could find that after three hours of questioning and a willingness to continue the examination with the assistance of the court, Evans substantially complied with the requirement of the insurance contract.” A genuine issue of material fact existed, so summary judgment for Ohio Casualty was error.
Against USAA, he lost — because he never sent the sworn proof of loss. Evans’s argument was that USAA’s refusal to pay had waived the proof-of-loss requirement, pointing out that USAA had hired an investigator and had said it “was not certain if such loss was covered as the property was vacant.” The court gave two reasons that did not work. First, statute: “Under OCGA § 33-24-40 (3), an insurer may investigate any loss or claim under a policy without waiving ‘any provision of a policy or … any defense of the insurer under the policy.’ ” Second, the vacancy point cut the other way: USAA’s defense “that Evans could not recover due to the fact that the dwelling was vacant did not relieve him of his obligation to comply with the requirements of the contract.” And then the sentence that ended it: “As there was no evidence presented that Evans submitted a proof of loss as requested by USAA and as required by the contract of insurance, the trial court properly granted summary judgment to USAA.”
A footnote records that Evans had also sued Ohio Casualty’s own lawyer, and that claim was dismissed for failure to state a cause of action.
What it did NOT decide
- It did not hold that Evans complied with the examination requirement. It held that “a jury could find” he substantially complied. That is a summary-judgment ruling and nothing more. He still had to prove it to a factfinder.
- It did not bless walking out of an examination under oath. Four facts carried Division 1 together: nearly three hours already given, an on-the-record statement of intent to cooperate, a proposal to continue under court supervision, and an actual date, time, and place set that the insurer did not attend. This opinion says nothing about an insured who leaves and then goes quiet. Do not read it as permission.
- It did not decide whether a refusal to pay can ever waive a proof of loss in Georgia. The court answered two narrower questions — investigating does not waive, by statute, and pleading a vacancy defense in an answer does not excuse performance. It never reached what a flat, unconditional denial of liability before any proof of loss would do to the requirement.
- It did not decide whether the loss was covered, or what it was worth. Both rulings were about post-loss conditions. Coverage, causation, and amount were untouched.
- It did not decide the vacancy question. USAA raised vacancy. The court mentioned it only to say it did not relieve Evans of his contract duties.
- It set no limit on how long or how hard an examination may go. Evans’s objection was to “the manner in which he was being questioned.” The court recited that fact and did not rule on it. There is no holding here about abusive questioning, about how many sessions are “reasonably required,” or about who may attend.
- It is a pro se appeal. The record was what a self-represented litigant made it. “As there was no evidence presented that Evans submitted a proof of loss” is a statement about this record — a reminder that the compliance file is proved, not assumed.
Why it matters to policyholders
This is the clearest Georgia illustration that a claim can be killed without anyone ever arguing about the damage. Neither carrier here said the fire was not covered. One of them won outright on a missing form. If you take one thing from Evans, take this: the post-loss conditions in your policy are not administrative. They are conditions, and a Georgia court will enforce them.
The examination under oath is survivable; the paperwork usually is not. Evans ended a session and still got his case back, because he immediately and provably tried to finish it. He did not send a sworn proof of loss and that claim was over. If you have to stop an examination — illness, an abusive line of questioning, a document you do not have — say on the record that you are willing to continue, propose the next date in writing that day, and keep proof that you offered. Ohio Casualty’s failure to show up at the courthouse date Evans set is in the opinion for a reason.
Georgia’s claim-handling rule gives you a lever most policyholders never use. Under Ga. Comp. R. & Regs. 120-2-52-.03, the insurer must acknowledge the claim within 15 days of notice and furnish proof-of-loss forms within that same window, and it must affirm or deny liability within 15 days of a completed proof of loss. So ask for the form, in writing, early. A dated request creates the record of when the 60-day clock actually started — and it stops the argument Evans lost, which was that nothing was ever submitted.
Post-loss conditions in Georgia are treated as conditions precedent. That framing runs through Cudd v. State Farm, where compliance came first and the remedy came second. Evans is the fire-claim version of the same idea.
Do not import another state’s rule. In Phoenix Insurance v. Brown, a Tennessee court let a fire claim proceed where no proof of loss was ever demanded and the insurer’s denial started the suit clock. That is Tennessee, on a record where the carrier expressly was not relying on the missing proof of loss. Georgia decided Evans the other way on a record where the carrier was. Two states, two files, two results — which is exactly why the answer is to comply and preserve the argument, not to choose one.
And note where vacancy fits. USAA’s stated hesitation was that “the property was vacant.” On the coverage merits, a Georgia carrier making that argument has to point to language that actually says so — see Hill v. Nationwide, where there was no vacancy exclusion and the insured won. Evans is the reminder that the winning coverage argument still does not excuse the sworn proof of loss.
What the work looks like. A public adjuster’s job here is the record: request the proof-of-loss forms in writing, calendar the 60 days, prepare and submit the sworn proof of loss with a supporting estimate and inventory, answer every document request in writing, and keep a dated log of what was sent and when. When an examination under oath is scheduled, that is normally the point at which an attorney belongs in the file — we build the documents, the estimate, and the timeline the examination will be about, and we refer the legal representation out. If a carrier is holding a claim past the deadlines in the rule, O.C.G.A. § 33-4-6 is the statutory penalty, and pursuing it is a lawsuit — attorney work again. More Georgia claim law, in full text, is on the Georgia claim-law page.
Now you know the rule. Enforcing it against a carrier is a different job — and it's ours. A free, confidential case review by a licensed public adjuster takes three taps.
See if my case qualifies