Columbus Fire & Safety Equip

Co. v. American Druggist Ins. Co., 166 Ga. App. 509, 304 S.E.2d 471, 1983 Ga. App. LEXIS 2225 (1983). Estoppel. — Indemnitors were estopped from contending that the insurer’s failure to pay the owner’s claim prior to trial constituted a breach of fiduciary duty on the insurer’s part, when the reason the insurer defended the owner’s claim instead of paying the claim prior to trial was because the president of one of the indemnitors denied any liability in the matter and resisted efforts to settle. M-Pax, Inc. v. Dependable Ins. Co., 176 Ga. App. 93, 335 S.E.2d 591, 1985 Ga. App. LEXIS 2265 (1985). Unavailable remedies. — The 60-day performance period provided by subsection (b) of O.C.G.A. § 10-7-30 began to run on the date that the surety received the obligee’s demand letter and not on the date that the surety was “aware of” the obligee’s claim on the bond, and this period was not waived by the surety’s denying, prior to 60 days, any obligation on the bond. Consulting Eng’rs Group, Inc. v. Pace Constr., 613 F. Supp. 1192, 1985 U.S. Dist. LEXIS 17504 (N.D. Ga. 1985). Plaintiff may not recover a bad faith penalty or attorneys’ fees pursuant to O.C.G.A. § 10-7-30 in a suit brought under the Miller Act. United States v. All Am. Bldg. Sys., 847 F. Supp. 69, 1994 U.S. Dist. LEXIS 3840 (S.D. Tex. 1994). No award for additional attorney’s fees on appeal. — Since the trial court did not err in striking the bad-faith penalty and attorney fees awarded to the plaintiff, its motion for an award of additional attorney fees on appeal will be perforce, denied, both because of this holding and because the Court of Appeals is not empowered by statute or otherwise to grant such relief. Columbus Fire & Safety Equip. Co. v. American Druggist Ins. Co., 166 Ga. App. 509, 304 S.E.2d 471, 1983 Ga. App. LEXIS 2225 (1983). Withdrawal of first notice of default. — When a contractor’s letter to the subcontractor specified that no claim was being made against the performance bond “at this time,” the prior notice of default was clearly intended to be 1188 withdrawn, and since the subcontractor was not again declared in default until less than 60 days before suit was filed, and since no demand for payment was made against the surety until that same date, it follows that the surety cannot be held liable for a bad-faith penalty and attorney fees. Columbus Fire & Safety Equip. Co. v. American Druggist Ins. Co., 166 Ga. App. 509, 304 S.E.2d 471, 1983 Ga. App. LEXIS 2225 (1983). 10-7-31 Jurisdiction. — Subcontractor’s action against surety for breach of payment bond contract, bad faith, and attorney fees was within the superior court’s subject matter jurisdiction. Harry S. Peterson Co. v. National Union Fire Ins. Co., 209 Ga. App. 585, 434 S.E.2d 778, 1993 Ga. App. LEXIS 945 (1993).