O.C.G.A. § 33-4-6 — Progressive Ins

Co. v. Horde, 259 Ga. App. 769, 577 S.E.2d 835 (2003). District court did not err when the court found that an insurance company was entitled to summary judgment on an insured’s claims that the company committed breach of contract and was liable for bad faith penalties under O.C.G.A. § 33-4-6 because the court denied the insured’s claim seeking compensation for damages that occurred to the insured’s home and personal property when water, mud, and debris entered the home during a rainstorm; damages the insured sustained were caused by ‘‘surface water,’’ as that term was deﬁned under Georgia law, and a provision in the insured’s homeowner’s policy excluded coverage for damage to the insured’s home and personal property that was caused by surface water. Williams v. State Farm Fire & Cas. Ins. 33-4-6 Co., No. 14-11100, 2014 U.S. App. LEXIS 13681 (11th Cir. July 17, 2014) (Unpublished). Insured precluded damage recovery by failure to provide records to insurer. — Where insured breached insurance contract by failing to fulﬁll conditions precedent to commencement of suit by failing to provide insurer with any records, insured was precluded from recovery and insurer had reasonable grounds to refuse payment of the claim; accordingly, damages under O.C.G.A. § 33-4-6 were not warranted. Hall v. Liberty Mut. Fire Ins. Co., No. CV4:06-218, 2008 U.S. Dist. LEXIS 22509 (S.D. Ga. Mar. 21, 2008), aff ’d, No. 08-12051, 2009 U.S. App. LEXIS 2075 (11th Cir. Ga. 2009). Summary judgment for insurer proper on bad faith claim. — Although a worker making a claim under a disability policy was able to perform light duties, whether the worker was wholly disabled from performing ‘‘material’’ duties within 180 days of the injury, as required by the policy, was a jury question, and summary judgment on this issue was improper; however, the worker was not entitled to bad faith penalties under O.C.G.A. § 33-4-6 because, in light of the policy language and the underlying facts, the insurer had reasonable grounds to contest coverage for total disability. Fountain v. Unum Life Ins. Co. of Am., 297 Ga. App. 458, 677 S.E.2d 334 (2009). Because the master policy of insurance liability did not provide indemniﬁcation for the extended protection plan (EPP) claims for which the manufacturer was ‘‘legally liable,’’ only claims for which it had been ‘‘held legally liable,’’ the manufacturer’s claim for indemniﬁcation did not, and would not, accrue until its legal liability for the EPP claims had been established by a court holding, and the insurer was entitled to summary judgment on the bad faith denial of insurance coverage claim. Lloyd’s Syndicate No. 5820 v. AGCO Corp., 294 Ga. 805, 756 S.E.2d 520 (2014). Insurer had reasonable grounds to contest homeowners’ claims. — Insureds’ bad faith claim under O.C.G.A. § 33-4-6 against an insurer that alleged 162 the insurer acted in bad faith in underpaying for tree damage and in refusing to pay for water damage failed under summary judgment because the insurer had reasonable grounds to contest the claims; the insureds’ request for additional payment for the tree damage was based on estimates for repairs that exceeded the scope of the tree damages, and there was no indication that the insureds properly asserted a new claim for the water damage. Matthews v. State Farm Fire & Cas. Co., 500 Fed. Appx. 836 (11th Cir. 2012) (Unpublished). Bad faith not found. — Because of an ‘‘impaired property’’ exclusion in a commercial general liability policy, an insurer did not breach its duty to indemnify or defend where an auto parts store ﬁled a claim with the insurer after customers sued the store for its failure to deliver conforming goods (store allegedly ﬁlled its customers’ orders for freon with a freon substitute and illegally imported freon); the court granted summary judgment in favor of the insurer on the issues of bad faith and failure to defend and indemnify. JLM Enters. v. Houston Gen. Ins. Co., 196 F. Supp. 2d 1299 (S.D. Ga. 2002). Insured who tried to recover damages for injuries the insured sustained in a motor vehicle accident in Florida, but who alleged that the insured’s claim was denied because she did not have the right to sue under Florida’s no-fault statute, was entitled to collect uninsured motorist beneﬁts from the insured’s own insurance company, pursuant to O.C.G.A. § 33-7-11. However, the trial court, which heard the insured’s action against the insurance company, erred when it denied the company’s motion for summary judgment on the insured’s claim seeking penalties and attorney fees, pursuant to O.C.G.A. § 33-4-6, because the case presented a unique issue of law and there was no evidence that the company acted in bad faith when it denied the insured’s claim. Ga. Farm Bureau Mut. Ins. Co. v. Williams, 266 Ga. App. 540, 597 S.E.2d 430 (2004). Award in favor of an insured was reversed as the insurer refused to pay the insured’s claim based on an investigation which produced evidence that the in- 33-4-6 sured’s claim under the policy was fraudulent. As the insured denied the fraud claim, there was a genuine conﬂict over whether the claim was legitimate, and since the insurer’s grounds for refusing to pay the claim were reasonable and not frivolous or unfounded, there was a lack of evidence to support the jury’s verdict ﬁnding that the insurer refused to pay the claim in bad faith. Allstate Ins. Co. v. Smith, 266 Ga. App. 411, 597 S.E.2d 500 (2004). Trial court properly granted summary judgment as to the successor in interest to an insurance company as to claims of bad faith pursuant to O.C.G.A. § 33-4-6, as the insurer reasonably based its denial of coverage on a decedent’s failure to make the required premium payments. Guideone Life Ins. Co. v. Ward, 275 Ga. App. 1, 619 S.E.2d 723 (2005). Where an insurer was found to have improperly rescinded a directors and officers insurance policy with its insured, the insured was not liable for bad faith damages because the insurer’s decision to rescind the policy was reasonable; the insurer promptly initiated and conducted an investigation of the circumstances surrounding the issuance of the policy, which reasonably led it to conclude that the policy had been procured on the basis of material misrepresentations. Exec. Risk Indem. v. AFC Enters., 510 F. Supp. 2d 1308 (N.D. Ga. 2007), aff ’d, 279 Fed. Appx. 793 (11th Cir. 2008). Insurer was not liable for attorney fees based on bad faith failure to pay a corporate insured’s claim for inspections and repairs to faulty industrial boilers because the business risk exclusions contained in the insured’s general commercial liability policy exempted such matters from recovery. Gentry Mach. Works, Inc. v. Harleysville Mut. Ins. Co., 621 F. Supp. 2d 1288 (M.D. Ga. 2008). Insured settled a claim without its insurer’s consent, contrary to a provision in the parties’ policy. As the insurer was liable under the policy to pay only those sums the insured was legally obligated to pay, and neither policy provision was illegal or contrary to public policy, the insured could not sue the insurer for bad faith failure to settle, O.C.G.A. § 33-4-6, 163 33-4-6 Bad Faith Refusal to Pay (Cont’d) in the absence of an excess verdict or an agreed-upon settlement. Trinity Outdoor, LLC v. Cent. Mut. Ins. Co., 285 Ga. 583, 679 S.E.2d 10 (2009). Insurance company presented evidence showing that the reason for the payment delay was because there was a dispute over how much was owed under the lost business income provision of the policy. From that evidence, the court granted the insurance company’s motion for summary judgment on the insured’s claim for bad faith under O.C.G.A. § 33-4-6. B.S.S.B., Inc. v. Owners Ins. Co., No. 7:08-CV-112 (HL), 2010 U.S. Dist. LEXIS 4106 (M.D. Ga. Jan. 20, 2010). Trial court erred by denying an insurer’s motion for summary judgment dismissing a mortgagee’s claims for bad faith damages under O.C.G.A. § 33-4-6 in its action seeking payment of insurance proceeds because the insurer had good reason for delaying payment until the insurer acquired the necessary information about the foreclosure of the insured residence less than 60 days before suit was ﬁled; the mortgagee ultimately showed that after foreclosing on and obtaining title to the residence, the mortgagee incurred a net loss that gave the mortgagee a right to the entire $103,000 of insurance proceeds, but the information necessary for the insurer to conclude that the mortgagee had a right to claim the entire $103,000 of insurance proceeds was provided to the insurer less than 60 days before suit was ﬁled, and the mortgagee made no demand for payment of all the insurance proceeds after that information was provided. Balboa Life & Cas., LLC v. Home Builders Fin., 304 Ga. App. 478, 697 S.E.2d 240 (2010). Homeowner could not prevail on a bad-faith claim based on an insurer’s denial of coverage for water damage to a house, as the insurer reasonably denied the claim; the policy unambiguously contained a residency requirement, and the homeowner never resided there. Mahens v. Allstate Ins. Co., 447 Fed. Appx. 51 (11th Cir. 2011) (Unpublished). Trial court did not err in granting an insurer summary judgment on a widow’s claim for bad faith penalties and attorney fees under O.C.G.A. § 33-4-6 because the insurer’s reasons for refusing to pay the insurance proceeds to the widow were erroneous but not frivolous or unreasonable. Flynt v. Life of the South Ins. Co., 312 Ga. App. 430, 718 S.E.2d 343 (2011), cert. denied, No. S12C0461, 2012 Ga. LEXIS 305 (Ga. 2012). In an insurance dispute coverage claim, the homeowners’ contention on appeal that the insurance company denied the homeowners’ claim in bad faith, in violation of O.C.G.A. § 33-4-6, was not ruled on by the trial court; thus, the appellate court was presented with nothing to review on appeal, but stated that the homeowners failed to state the particular statutory or contractual provision the homeowners contended the insurance company intentionally omitted from the homeowner’s policy. Bell v. Liberty Mut. Fire Ins. Co., 319 Ga. App. 302, 734 S.E.2d 894 (2012). Trial court erred by denying a title company’s motion for summary judgment on a lender’s claim for coverage under the title insurance policy and for bad faith damages because the policy stated that the title company was liable for the lesser amount of the difference between the value of the insured estate and the value of the insured estate subject to the defect insured against, thus, since the lender received more in the foreclosure sale than the value, the title company was liable for zero. Doss & Assocs. v. First Am. Title Ins. Co., 325 Ga. App. 448, 754 S.E.2d 85 (2013). Procedure 1. Generally No damages absent allegations of fraud, special circumstances. — The plaintiff ’s request for both the 25 percent penalty and unspeciﬁed punitive damages was at least redundant, where he alleged only his entitlement to the disputed proceeds and the defendant’s bad faith failure to pay them, no allegations of fraud or other special circumstances having been pleaded. Hall v. Travelers Ins. Co., 691 F. Supp. 1406 (N.D. Ga. 1988). Allegation of ‘‘bad faith’’ sufficient, not mere conclusion. — In an action on 164 an insurance contract, if deﬁnite facts are well pleaded which in law make a case of liability against the insurer and disclose a duty to pay the damage and if it is further alleged that on timely demand by the insured the insurer within 60 days thereafter refused to compensate for the loss sustained, the pleader may allege that the refusal was in ‘‘bad faith,’’ and that the defendant is therefore subject to a penalty provided by law, without subjecting this allegation to the complaint that it is a mere conclusion of the pleader. Rogers v. American Nat’l Ins. Co., 145 Ga. 570, 89 S.E. 700 (1916); North British & Mercantile Ins. Co. v. Parnell, 53 Ga. App. 178, 185 S.E. 122 (1936); Glens Falls Indem. Co. v. Gottlieb, 76 Ga. App. 70, 44 S.E.2d 706 (1947). It is proper to allege liability for penalty as legal result. — The allegation following that of ‘‘bad faith,’’ that ‘‘making the defendant liable for said penalty of 25 percent as (sic) attorney’s fees,’’ is an allegation of legal result which will be judicially recognized by the Court of Appeals as arising from the allegation of refusal in ‘‘bad faith,’’ and, as such, is not objectionable. North British & Mercantile Ins. Co. v. Parnell, 53 Ga. App. 178, 185 S.E. 122 (1936). Reason for refusal in ‘‘bad faith’’ need not be alleged. — Whether there is any reason given, or whether there are other insinuating facts in connection with the refusal of the insurer to compensate for loss sustained, is purely a matter of evidence tending to support the ultimate issue of fact as to ‘‘bad faith’’ and need not be pleaded. North British & Mercantile Ins. Co. v. Parnell, 53 Ga. App. 178, 185 S.E. 122 (1936). The pleadings made a case for submission to a jury as to whether the defendant was liable for the damages and attorney’s fees provided for under this section by its refusal to defend suit brought against plaintiff railroad in accordance with its contractual obligations. Liberty Mut. Ins. Co. v. Atlantic C.L.R.R., 66 Ga. App. 826, 19 S.E.2d 377 (1942). Allegations held sufficient to authorize ﬁnding of no good faith. — Where from the allegations and admissions in the pleadings, which it was the duty of the 33-4-6 jury to accept as true, the jury was authorized to ﬁnd that at the time of the refusal to pay the claim after the expiration of the 60-day period, as well as at the time the suit was ﬁled and the answer ﬁled thereto, no investigation had been made by the defendant insurer to determine whether payment should have been made, the jury was authorized to ﬁnd the defendant lacking in the exercise of good faith. Independent Life & Accident Ins. Co. v. Hopkins, 80 Ga. App. 348, 56 S.E.2d 177 (1949). Demand at time payment due and refusal continuing 60 days must be alleged. — In order for the insured to recover under this section the demand ought to be averred as taking place at a time when the plaintiff had a right to exact present payment, and the plaintiff ’s pleading should show that refusal, in ‘‘bad faith,’’ was made and persisted in for 60 days. Twin City Fire Ins. Co. v. Wright, 46 Ga. App. 537, 167 S.E. 891 (1933). Violation of 60-day waiting period. — Where insurer sued to cancel contract within 60-day period following demand, the insured’s compulsory counterclaim did not violate the 60-day waiting period so as to foreclose claim for damages and attorneys fees. Sawyer v. Citizens & S. Nat’l Bank, 164 Ga. App. 177, 296 S.E.2d 134 (1982). Waiver of 60-day notice requirement. — Insurer waived the 60-day coverage demand requirement under this section in an action by the insured to recover judgments and the costs of defending a wrongful death action, where the insurer ﬁled a declaratory judgment action to determine its duty to defend under the policy prior to the initiation of the suit by the insured. Leader Nat’l Ins. Co. v. Kemp & Son, 189 Ga. App. 115, 375 S.E.2d 231 (1988), aff ’d, 259 Ga. 329, 380 S.E.2d 458 (1989). Insurer’s waiver of defenses. — Where the insurer sent notice of termination and nonrenewal after it learned of the insured’s fraud, it waived its defense that the insured’s misrepresentations in his application voided the policy ab initio; however, such waiver with regard to the insurer’s liability under the policy did not waive its defense to a bad faith claim under this section. Florida Int’l Indem. 165 Procedure (Cont’d) 1. Generally (Cont’d) Co. v. Osgood, 233 Ga. App. 111, 503 S.E.2d 371 (1998). Allegations as to demand held sufﬁcient. — Pleading showing that plaintiff made due proof of death of insured, that payment had been refused, and that upon being informed, only after she had fraudulently been induced to sign release, that the sum of $3.30 was all she was entitled to recover, she expressed her dissatisfaction, stated that she did not understand the transaction which she was fraudulently induced to enter into, and tendered back the amount she had received, making the offer a continuous one, set a cause of action for recovery of the amount of the policy, and of damages and attorney’s fees under this section. Industrial Life & Health Ins. Co. v. Johnson, 62 Ga. App. 630, 9 S.E.2d 121 (1940). Admission of liability and small offer held to justify penalty. — Where the defendant in its answer admitted that it was indebted to the plaintiff and since the amount offered the plaintiff was a small portion of the lowest estimate of the repairs necessary as a result of the incident out of which the claim under the policy arose, it cannot be said that the ﬁnding of the penalty and attorney’s fees under this section was unauthorized. Fidelity & Cas. Co. v. Mangum, 102 Ga. App. 311, 116 S.E.2d 326 (1960). Denial of defendant’s motion for continuance held not abuse of discretion. — Where in view of history of the insurance case before it and the evidence on the hearing for a continuance, the trial court was authorized to determine that the defendant would not by a continuance be placed in any better position than it was at the trial to defend against the demand for the statutory penalty and attorney’s fees, made in the plaintiff ’s amendment, the trial court did not abuse its discretion in overruling the motion for a continuance. National Life & Accident Ins. Co. v. Moore, 86 Ga. App. 618, 72 S.E.2d 141 (1952). Amendment of complaint allowed. — Plaintiff insured was allowed to amend a second time to clarify a claim for a bad 33-4-6 faith breach of an insurance contract under O.C.G.A. § 33-4-6, based on a refusal to pay disability beneﬁts, because defendant insurers were on notice of the claim, and in fact, the parties had conducted discovery on its merits; however, the court granted the insurers leave to ﬁle a motion for summary judgment on the claim, if they chose, because brieﬁng the issue was an efficient use of judicial resources. Worsham v. Provident Cos., 249 F. Supp. 2d 1325 (N.D. Ga. 2002). Insured was allowed to amend the insured’s complaint, which alleged that several insurers violated O.C.G.A. § 33-4-6 in the handling of the insured’s claim under a homeowners’ policy, so as to add claims for negligence in the handling of the insured’s claim; Georgia law was ambiguous as to whether the insured could recover for negligent, as well as bad faith, failure to settle the insured’s claim, and thus, the amendment was not futile. Cordell v. Pac. Indem., No. 4:05-CV-167-RLV, 2006 U.S. Dist. LEXIS 46859 (N.D. Ga. July 11, 2006). Amount in controversy for jurisdiction. — Motion to remand was denied because the amount in controversy satisﬁed 28 U.S.C. § 1332 since an insurer proved by a preponderance of the evidence that the beneﬁt payable under a life insurance policy was $51,000, which, when added with the statutory penalty of $25,500 under O.C.G.A. § 33-4-6, totaled $76,500. Estate of Thornton v. Unum Life Ins. Co. of Am., 445 F. Supp. 2d 1379 (N.D. Ga. 2006). Bifurcation of claims proper. — Trial court was authorized to conclude, after extensive discussion with the parties, that bifurcation of an insured’s breach of an insurance contract and bad faith failure to pay beneﬁts claims were appropriate under O.C.G.A. § 9-11-42(b) because coverage turned on whether the insured’s debilitating condition arose from an injury or sickness, and the discrete coverage issue had to be resolved ﬁrst since bad faith was irrelevant absent coverage; even if a single action was required under O.C.G.A. § 33-4-6, nothing in the case violated the requirement because the insured brought the claims against the insurer in a single civil action, and the 166 claims were resolved in that action, albeit through a bifurcated proceeding. Saye v. Provident Life & Accident Ins. Co., 311 Ga. App. 74, 714 S.E.2d 614 (2011), cert. denied, No. S11C1857, 2011 Ga. LEXIS 984 (Ga. 2011). 2. Burden of Proof and Evidence Proper demand must be shown by evidence. — Such a demand as required by this section in order for the insured to recover damages in addition to the loss not being shown by the evidence, the verdict for damages given by the section was unauthorized. The judgment overruling the defendant’s motion for a new trial was affirmed on condition that such damages be written off. Alliance Ins. Co. v. Williamson, 36 Ga. App. 497, 137 S.E. 277, cert. denied, 36 Ga. App. 825, 138 S.E. 267 (1927). Evidence held not to prove demand at proper time. — The plaintiff having failed to prove any demand for payment at a time when she had the absolute right to make such demand, a verdict for damages and attorney’s fees was unauthorized by the evidence and the applicable rules of law. Life Ins. Co. v. Burke, 219 Ga. 214, 132 S.E.2d 737 (1963). Prior to 1979 bad faith was held fact to be proved. — Bad faith in refusing to pay a claim within 60 days after demand was a fact to be proved in order to recover the penalty and attorney’s fees provided by this section. Pearl Assurance Co. v. Nichols, 73 Ga. App. 452, 37 S.E.2d 227 (1946); Glens Falls Indem. Co. v. Gottlieb, 76 Ga. App. 70, 44 S.E.2d 706 (1947). Unless there was evidence of a frivolous and unfounded denial of liability, no recovery could be had under this section. Morris v. Mutual Beneﬁt Life Ins. Co., 258 F. Supp. 186 (N.D. Ga. 1966). Burden of showing bad faith was on the insured. Reserve Life Ins. Co. v. Bearden, 96 Ga. App. 549, 101 S.E.2d 120 (1957), aff ’d, 213 Ga. 904, 102 S.E.2d 494 (1958); Whitlock v. Interstate Life & Accident Ins. Co., 112 Ga. App. 235, 144 S.E.2d 541 (1965); Georgia Farm Bureau Mut. Ins. Co. v. Calhoun, 127 Ga. App. 213, 193 S.E.2d 35 (1972). To support a cause of action under O.C.G.A. § 33-4-6, the insured bears the 33-4-6 burden of proving that the refusal to pay the claim was made in bad faith. Central Nat’l Ins. Co. v. Dixon, 188 Ga. App. 680, 373 S.E.2d 849 (1988); Massachusetts Bay Ins. Co. v. Hall, 196 Ga. App. 349, 395 S.E.2d 851, cert. denied, 196 Ga. App. 908, 395 S.E.2d 851 (1990). In a policy holder’s suit asserting breach of contract, bad faith refusal to advance defense costs, and declaratory judgment, the policy holder could not establish the ﬁrst element of a bad faith claim because the underlying litigation, which alleged that the trustees breached the trustees’ ﬁduciary duties, was not covered under the claims-made policy. Langdale Co. v. Nat’l Union Fire Ins. Co., 110 F. Supp. 3d 1285 (N.D. Ga. 2014). Plaintiff must show bad faith. — In actions brought under this section the burden of showing bad faith on the part of the defendant was on the plaintiff. Pearl Assurance Co. v. Nichols, 73 Ga. App. 452, 37 S.E.2d 227 (1946); Witt v. Pennsylvania Nat’l Mut. Cas. Ins. Co., 117 Ga. App. 838, 162 S.E.2d 251 (1968). The burden was on the plaintiff to show bad faith on the part of the defendant in refusing to pay the claim within 60 days after demand. Life & Cas. Ins. Co. v. Freemon, 80 Ga. App. 443, 56 S.E.2d 303 (1949). For comment, see 12 Ga. B.J. 337 (1950). The burden was on the plaintiff to show bad faith on the part of the defendant in refusing to pay a claim or in offering an amount in settlement of the claim which was less than the amount of the loss found by the jury. Security Ins. Co. v. Hudgins, 87 Ga. App. 711, 75 S.E.2d 267 (1953). In an action to recover penalties and attorney’s fees for the refusal of an insurer to pay a claim, it had to be shown that the refusal was in ‘‘bad faith,’’ and the burden was on the insured to show that such refusal had been made in bad faith. Interstate Life & Accident Ins. Co. v. Williamson, 220 Ga. 323, 138 S.E.2d 668, answer conformed to, 110 Ga. App. 557, 139 S.E.2d 429 (1964); Interstate Life & Accident Ins. Co. v. Brown, 146 Ga. App. 622, 247 S.E.2d 205 (1978). The burden of proof is on the insured to establish bad faith. Winningham v. Centennial Ins. Co., 708 F.2d 658 (11th Cir. 1983). 167 Procedure (Cont’d) 2. Burden of Proof and Evidence (Cont’d) In an action to recover penalties and attorney fees for the refusal of an insurer to pay a claim it must be shown that the refusal was in ‘‘bad faith,’’ and the burden is on the insured to show that such refusal was made in bad faith. Republic Ins. Co. v. Martin, 182 Ga. App. 390, 355 S.E.2d 694 (1987). When insured fails to meet initial burden, no damage award. — When insured failed to meet the insured’s initial burden of producing ‘‘any’’ evidence of insurer’s ‘‘bad faith’’ refusal to pay the insured’s demand, the award of damages pursuant to O.C.G.A. § 33-4-6 could not stand. Canal Ins. Co. v. Bryant, 173 Ga. App. 173, 325 S.E.2d 839 (1984). Compliance with requirements as to demand. — The plaintiff having alleged bad faith in her petition, the burden was on her to prove bad faith under the applicable rules of law, and that she had complied with the law and decisions of the Supreme Court as to ‘‘demand’’ for payment. Life Ins. Co. v. Burke, 219 Ga. 214, 132 S.E.2d 737 (1963). Failure to comply with demand did not shift burden as to bad faith. — The mere fact that an insurer did not comply with a demand was not evidence of bad faith nor was any burden thereby cast on the insurer to prove good faith. Interstate Life & Accident Ins. Co. v. Williamson, 220 Ga. 323, 138 S.E.2d 668, answer conformed to, 110 Ga. App. 557, 139 S.E.2d 429 (1964); Interstate Life & Accident Ins. Co. v. Brown, 146 Ga. App. 622, 247 S.E.2d 205 (1978). Unless delay was unusual and unnecessary. — The burden of proof, where unusual and unnecessary delay is shown, should be upon the company to give reason for the delay. Missouri State Life Ins. Co. v. Lovelace, 1 Ga. App. 446, 58 S.E. 93 (1907); Piedmont S. Life Ins. Co. v. Gunter, 108 Ga. App. 236, 132 S.E.2d 527 (1963) (‘‘burden of proof ’’ used in sense of ‘‘risk of nonpersuasion’’). Where unusual and apparently unnecessary delay in paying the claim is shown, the burden is upon the company to show 33-4-6 that the refusal was made in good faith. Georgia Life Ins. Co. v. McCranie, 12 Ga. App. 855, 78 S.E. 1115 (1913). Supreme Court held insurer must show good cause. — The intention of this section was to penalize insurers for resisting and delaying payment unless good cause was shown. Colonial Life & Accident Ins. Co. v. McClain, 243 Ga. 263, 253 S.E.2d 745 (1979), answer conformed to, 150 Ga. App. 883, 258 S.E.2d 655 (1979). Denying penalty because evidence would support verdict for insurer is incorrect. — The rule that a ﬁnding of bad faith is not authorized if the evidence would have supported a verdict in accordance with the contentions of the defendant is incorrect. Colonial Life & Accident Ins. Co. v. McClain, 243 Ga. 263, 253 S.E.2d 745 (1979), answer conformed to, 150 Ga. App. 883, 258 S.E.2d 655 (1979). Former rule. — Where the jury would have been authorized, under the evidence, to have found that the insured came to his death by reason of riding or operating a motorcycle, in which case his death would have been covered by the policy, or that the insured did not so come to his death, the plaintiff failed to prove bad faith on the part of the defendant in refusing to pay. Life & Cas. Ins. Co. v. Freemon, 80 Ga. App. 443, 56 S.E.2d 303 (1949). Prior to 1979 it was held that if the evidence could be said to have authorized a ﬁnding in accordance with the contentions of the defendant, a ﬁnding of bad faith was not authorized. Lincoln Life Ins. Co. v. Anderson, 109 Ga. App. 238, 136 S.E.2d 1 (1964); Old Colony Ins. Co. v. Dressel, 109 Ga. App. 465, 136 S.E.2d 525, aff ’d, 220 Ga. 354, 138 S.E.2d 886 (1964); United States Fid. & Guar. Co. v. Woodward, 118 Ga. App. 591, 164 S.E.2d 878 (1968); Fidelity Bankers Life Ins. Co. v. Renew, 121 Ga. App. 883, 176 S.E.2d 103 (1970); Phillips v. State Farm Mut. Auto. Ins. Co., 437 F.2d 365 (5th Cir. 1971); Boston-Old Colony Ins. Co. v. Warr, 127 Ga. App. 364, 193 S.E.2d 624 (1972). At the time of the trial the insurer has the right to show good faith in refusing to pay in reply to the plaintiff ’s charge and evidence that the refusal was in bad faith. Interstate Life & Accident 168 Ins. Co. v. Williamson, 220 Ga. 323, 138 S.E.2d 668, answer conformed to, 110 Ga. App. 557, 139 S.E.2d 429 (1964). Insurer’s judgment on former trial not evidence of good faith without record. — A verdict and judgment in the insurer’s favor on a former trial, without the aid of the record of the trial in which the verdict was returned and the judgment entered, would constitute no proof that the defense interposed by the insurer on the former trial was upon probable cause or made in good faith. Reserve Life Ins. Co. v. Peavy, 98 Ga. App. 268, 105 S.E.2d 465 (1958). The faith of an insurance company should not be judged by the preliminary proofs or other ex parte affidavits, but by the case made at the trial. Interstate Life & Accident Ins. Co. v. Williamson, 110 Ga. App. 557, 139 S.E.2d 429 (1964). Questions can only be determined by admissible evidence. — The question of good or bad faith on the part of the insurance company in refusing to make payment to the beneﬁciary can only be determined from evidence that is relevant and admissible for a determination of the case on its merits. New York Life Ins. Co. v. Ittner, 59 Ga. App. 89, 200 S.E. 522 (1938), later appeal, 62 Ga. App. 31, 8 S.E.2d 582 (1940). Evidence of cancellation of insurance held inadmissible. — Where, in an action on a policy of insurance for the loss, by ﬁre, or an automobile insured thereunder, the plaintiff seeks to recover the value of the automobile, attorney’s fees, and the statutory penalty for bad faith, under this section, it is such error as to require the grant of a new trial to permit the introduction of evidence, for the purpose of demonstrating bad faith, that some ten and one-half months after the loss and some ﬁve months after the commencement of action to recover for the loss of the automobile, the insurer, without denying liability for the loss of the automobile, canceled the insurance for the unexpired term. Calvert Fire Ins. Co. v. Mack, 88 Ga. App. 617, 76 S.E.2d 829 (1953). Failure to prove any defense is evidence of bad faith. — The complete failure of the insurer to prove any defense 33-4-6 to an action on the policy is evidence of the bad faith contemplated by this section and subjects the insurer to a verdict for the statutory penalty and attorney’s fees. Reserve Life Ins. Co. v. Ayers, 217 Ga. 206, 121 S.E.2d 649 (1961); Hanover Ins. Co. v. Hallford, 127 Ga. App. 322, 193 S.E.2d 235 (1972); Key Life Ins. Co. v. Mitchell, 129 Ga. App. 192, 198 S.E.2d 919 (1973); Cincinnati Ins. Co. v. Gwinnett Furn. Mart, Inc., 138 Ga. App. 444, 226 S.E.2d 283 (1976). When no evidence substantiates pled defense, bad faith may be found. — When the insurer introduced no evidence in explanation of its varied changes of position in its defenses to an action by the beneﬁciary, and the answers to such questions as to whether the policy had been issued, the application approved, and the premium paid, were certainly within its knowledge or easily ascertainable, and when the insurer had ample time to investigate and establish some basis, if basis there was, for its contention that the applicant insured had misrepresented his use of intoxicants on the application, but failed to do so, the jury was authorized to ﬁnd that the insurer’s refusal to pay the loss covered by the contract of insurance was in bad faith. National Life & Accident Ins. Co. v. Moore, 86 Ga. App. 618, 72 S.E.2d 141 (1952). Where the insurance company pleaded that the policy was obtained by fraud on the part of the plaintiff and there was no evidence introduced on the trial of the case to substantiate this, the jury was authorized to ﬁnd for the plaintiff on the issue raised by the pleadings that the insurance company’s failure to pay the loss was in ‘‘bad faith.’’ Guaranty Life Ins. Co. v. Brown, 92 Ga. App. 847, 90 S.E.2d 97 (1955). Where the insured notiﬁed the insurer that he had not received a premium due notice after discovering that the insurer had cancelled his policy, and the insurer could produce nothing from its records showing that it had sent the notice and continued to refuse to pay the insured’s claim, the jury was authorized to ﬁnd bad faith on the part of the insurer. State Farm Mut. Auto. Ins. Co. v. Drury, 222 Ga. App. 196, 474 S.E.2d 64 (1996). 169 Procedure (Cont’d) 2. Burden of Proof and Evidence (Cont’d) Refusal to adjust or pay any loss evidences bad faith. — Refusal upon the part of the insurance company to adjust or pay for any loss or damage claimed, after having received notice of loss and demand for payment, constitutes evidence of bad faith in an action based upon this section. Central Mfrs. Mut. Ins. Co. v. Graham, 24 Ga. App. 199, 99 S.E. 434 (1919). A failure upon the part of the insurance company to investigate the alleged loss or damage and a denial upon the part of the company of any liability whatsoever upon the ground that such loss or damage was not recoverable under the policy, but arose from some cause not covered by the policy, may be considered as evidence of bad faith. Central Mfrs. Mut. Ins. Co. v. Graham, 24 Ga. App. 199, 99 S.E. 434 (1919). Refusal to pay until other claimant is satisﬁed. — Where the agents of a life insurance company show active sympathy with one who claims the proceeds of a policy, against the legal representative of the insured, and refuse to pay any part of the proceeds until such claimant is satisﬁed, although such claim is for a portion only, it is evidence of bad faith, in the meaning of this section, and the company may be proceeded against for 25 percent damages and counsel fees. Mutual Life Ins. Co. v. Watson, 30 F. 653 (S.D. Ga. 1887). Evidence that burglary charges were pending against the insured and that he had been released on bond at the time of the ﬁres was admissible where presented in a noninﬂammatory manner by the insurance company which was defending against the insured’s claim of bad-faith denial of coverage, such evidence being admissible to prove the insured’s poor ﬁnancial condition and therefore falling within a speciﬁc exception to the federal rule prohibition on use of evidence of other crimes. Aetna Cas. & Sur. Co. v. Gosdin, 803 F.2d 1153 (11th Cir. 1986). Evidence held to show bad faith. — Where a policy of ﬁre insurance contains a 33-4-6 stipulation that ‘‘the assured is the sole and undisputed owner, absolutely in fee simple, of the land on which the insured buildings stand, unless it is otherwise expressed in writing hereon,’’ and where in the same policy it is provided that ‘‘privilege is granted for any of the above-described buildings to stand on leased ground, or ground the property of others, or upon ground to which the title may be questioned,’’ and where the evidence shows that, at the time application for insurance was made, the insurance company, through its solicitor or agent, knew that the applicant did not own the land on which the building sought to be insured was situated, the jury is authorized to ﬁnd for the insured damages and attorney’s fees. Globe & Rutgers Fire Ins. Co. v. Walker, 150 Ga. 163, 103 S.E. 407 (1920). The insurer’s denial of the existence of the policy, and denial of the payment of premiums thereon, up to and including the trial and until the premium receipt book was shown in court by the beneﬁciary, was sufficient basis for the trial judge to ﬁnd that the insurer acted in ‘‘bad faith.’’ Interstate Life & Accident Ins. Co. v. Hopgood, 133 Ga. App. 6, 209 S.E.2d 703 (1974). Where the evidence supported a ﬁnding that the insurer alternately led the insured and his daughter, who inquired frequently about the status of their claim, to believe that the claim would be paid, and thus lulled them into forbearing suit to protect their interests, the jury was authorized to award plaintiffs bad faith penalties and attorney fees. Republic Ins. Co. v. Martin, 182 Ga. App. 390, 355 S.E.2d 694 (1987). Even assuming that investigation of the insured’s ﬁre loss led to some delay, the insured was not notiﬁed of it nor of the insurer’s desire to rebuild rather than pay under the policies’ limits until seven months after the ﬁre. This time lag and the extent of the insurer’s offer were evidence supporting a bad faith ﬁnding. Southern Ins. Underwriters, Inc. v. Ray, 188 Ga. App. 469, 373 S.E.2d 236, cert. denied, 188 Ga. App. 912, 373 S.E.2d 236 (1988). Evidence was sufficient to support a 170 ﬁnding of bad faith and an award of attorney’s fees where the defendant insurer failed to follow industry procedures for contesting coverage and failed to maintain proper reserves to pay claims, the president of the defendant insurer admitted that he used the insurer’s funds for himself, and the defendant insurer failed to investigate any of the plaintiff ’s medical bills for over 4 years and never attempted to verify some of them. American Ass’n of Cab Cos. v. Olukoya, 233 Ga. App. 731, 505 S.E.2d 761 (1998). Evidence held not to show bad faith. — In an action to recover upon a ﬁre insurance policy for damage to personal property such as a piano, caused by ﬁre, where the defendant denies liability under the policy, and where it appears from the evidence that after the damage to the property the plaintiff contended that although the property was not totally destroyed it was nevertheless a total loss and that the property could not be restored by being repaired, and where the defendant contended that the property was not a total loss but could be repaired, and offered to repair the property in compliance with a provision of the policy that the defendant had an option to repair the property, the evidence is insufficient to authorize an inference that the defendant’s refusal to pay the loss was in bad faith. National Fire Ins. Co. v. Shuman, 50 Ga. App. 846, 178 S.E. 758 (1935). Where it appears that the defendant insurance company, prior to the commencement of the action, offered to pay the plaintiff the full amount to which the plaintiff was entitled under the provisions of the policy, and that the plaintiff refused to accept said sum, there was no evidence of bad faith on the part of the company, nor a refusal to pay the amount due under the provisions of the policy, and the judgment in favor of the plaintiff against the defendant for attorney’s fees was unauthorized. Life & Cas. Ins. Co. v. McLeod, 70 Ga. App. 181, 27 S.E.2d 871 (1943). As a title insurer did not deny coverage; hired an appraiser to evaluate the insureds’ loss; and tendered the insureds a check based on that evaluation, which the insureds’ rejected, the trial court was entitled to ﬁnd that the insurer did not act in 33-4-6 bad faith. Jimenez v. Chi. Title Ins. Co., 310 Ga. App. 9, 712 S.E.2d 531 (2011). Evidence as to amount of attorney’s fee. — The evidence of what amount of counsel fee would be reasonable should be conﬁned to a certain fee, and inquiry should not extend to a conditional fee, in the particular case. Nor can any estimate be made to cover future litigation by motion for a new trial, writ of error, etc., there being no certainty that such future litigation will occur. If witnesses estimate fees on a basis which is too comprehensive, or on a misconception as to what the nature of the case involves, they should be requested on cross-examination to eliminate the superﬂuous elements and correct their estimates accordingly. Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 12 S.E. 18 (1890). Similar transaction evidence on failure to pay. — Trial court did not abuse the court’s discretion in ruling that a widow could not introduce evidence of an insurer’s conduct towards insureds in two prior cases in which the court refused to honor incontestability clauses to demonstrate bad faith because the trial court was entitled to ﬁnd that the prior cases were materially dissimilar from the widow’s case, given that neither of those cases involved coverage under the group policy at issue and the revisions to the certiﬁcate of insurance forms made that year. Flynt v. Life of the South Ins. Co., 312 Ga. App. 430, 718 S.E.2d 343 (2011), cert. denied, No. S12C0461, 2012 Ga. LEXIS 305 (Ga. 2012). 3. Questions for Jury or Court Jury decides if insurer has given proper consideration to insured’s interest in settlement. — In deciding whether to accept an offer of settlement within policy coverage the insurer must accord the interest of its insured the same faithful consideration it gives its own interest, and it is for the jury to decide whether the insurer has or has not so acted. Great Am. Ins. Co. v. Exum, 123 Ga. App. 515, 181 S.E.2d 704 (1971). Bad faith is usually a jury question. Liberty Mut. Ins. Co. v. Atlantic C.L.R.R., 66 Ga. App. 826, 19 S.E.2d 377 (1942); American Cas. Co. v. Callaway, 75 Ga. 171 Procedure (Cont’d) 3. Questions for Jury or Court (Cont’d) App. 799, 44 S.E.2d 400 (1947); Life & Cas. Ins. Co. v. Freemon, 80 Ga. App. 443, 56 S.E.2d 303 (1949), for comment, see 12 Ga. B.J. 337 (1950); Life & Cas. Ins. Co. v. Brown, 95 Ga. App. 354, 98 S.E.2d 68, rev’d on other grounds, 213 Ga. 390, 99 S.E.2d 98 (1957); Jackson v. Motors Ins. Corp., 97 Ga. App. 658, 104 S.E.2d 253 (1958); American Family Life Assurance Co. v. United States Fire Co., 885 F.2d 826 (11th Cir. 1989). Jury should determine bad faith. — Whether there was such bad faith as would authorize the recovery of attorney’s fees, was, under the facts of this case, a question for the jury. Continental Aid Ass’n v. Hand, 22 Ga. App. 726, 97 S.E. 206 (1918). Where plaintiff submitted proof of disability and defendant insurance company waited six months and then refused payment, it was a question for the jury to determine whether the refusal to pay was in bad faith or not and whether the plaintiff was entitled to recover damages and attorney’s fees. Liner v. Travelers Ins. Co., 50 Ga. App. 643, 180 S.E. 383 (1935). It is usually a question for the jury whether an insurance company, in refusing to pay, acted in bad faith and thereby subjected itself to the penalty and attorney’s fees as provided by this section. New York Life Ins. Co. v. Williamson, 53 Ga. App. 28, 184 S.E. 755 (1936); Glens Falls Indem. Co. v. Gottlieb, 76 Ga. App. 70, 44 S.E.2d 706 (1947); Guaranty Life Ins. Co. v. Brown, 92 Ga. App. 847, 90 S.E.2d 97 (1955); Millers Nat’l Ins. Co. v. Waters, 97 Ga. App. 103, 102 S.E.2d 193 (1958). Whether or not the defendant acted in bad faith in stopping disability payments and in refusing to continue them was for the jury. New York Life Ins. Co. v. Bradford, 57 Ga. App. 657, 196 S.E. 92 (1938). Ordinarily, questions of an insurer’s bad faith in refusing to pay a claim for the jury. Pearl Assurance Co. v. Nichols, 73 Ga. App. 452, 37 S.E.2d 227 (1946). Bad faith is a question for the jury to pass on, and it may arise from the facts and circumstances of the case, that is, 33-4-6 from the whole complexion of the case as presented to the jury. North British & Mercantile Ins. Co. v. Mercer, 90 Ga. App. 143, 82 S.E.2d 41, aff ’d, 211 Ga. 161, 84 S.E.2d 570 (1954). In an action to recover beneﬁts for total disability under the provisions of an insurance policy where the insurer presents no evidence and relies in defense solely on the undisputed facts as brought out by the insured and his witnesses on direct and cross-examination as the basis of its refusal to make total disability payments, and such facts, upon application of long-standing decisions of the Supreme Court, seemingly afford no substantial basis for regarding the insured as other than totally disabled, it is not error to submit the issue of bad faith and attorney’s fees to the jury, and a verdict for attorney’s fees is not unauthorized as a matter of law. Travelers Ins. Co. v. Stanley, 117 Ga. App. 445, 160 S.E.2d 876 (1968). If, at trial, the plaintiff presents evidence showing the insurance company’s bad faith and the company’s defense meets the ‘‘reasonable and probable cause’’ standard, the question of bad faith must be submitted to the jury for ﬁnal resolution. Colonial Life & Accident Ins. Co. v. McClain, 144 Ga. App. 201, 240 S.E.2d 759 (1977); Colonial Life & Accident Ins. Co. v. McClain, 150 Ga. App. 883, 258 S.E.2d 655 (1979). The question of bad faith is for the jury unless it can be said that as a matter of law there was a reasonable defense which vindicates the insurer’s good faith. St. Paul Fire & Marine Ins. Co. v. Snitzer, 183 Ga. App. 395, 358 S.E.2d 925 (1987). Trial court did not err in denying the insured’s motion for summary judgment on the issue of whether the insured was entitled to bad faith penalties under O.C.G.A. § 33-4-6 for the insurer’s refusal to pay its vandalism claim because there were disputed questions of fact as to whether the insured sufficiently cooperated with the investigation of the vandalism claim, and thus whether the insured breached the insurance policy and was barred from recovery on that basis. R&G Invs. & Holdings, LLC v. Am. Family Ins. Co., 337 Ga. App. 588, 787 S.E.2d 765 (2016), cert. denied, No. S16C1830, 2017 172 Ga. LEXIS 144 (Ga. 2017). Bad faith not a question of law. — The question of bad faith is a question for the jury and not a question of law. National Cas. Co. v. Tanner, 100 Ga. App. 618, 112 S.E.2d 232 (1959). Bad faith issue not subject to motion for directed verdict. — The existence of bad faith is a jury question and not subject to a motion for a directed verdict. Atlantic Am. Life Ins. Co. v. Morris, 144 Ga. App. 577, 241 S.E.2d 463 (1978). Unless no evidence of bad faith is introduced. — If there is no evidence of a frivolous or unfounded refusal to pay, the court, for the furtherance of justice, should see to it that a verdict which illegally carries a penalty for bad faith is not allowed to stand. Pearl Assurance Co. v. Nichols, 73 Ga. App. 452, 37 S.E.2d 227 (1946); Life & Cas. Ins. Co. v. Freemon, 80 Ga. App. 443, 56 S.E.2d 303 (1949). For comment, see 12 Ga. B.J. 337 (1950). Where no evidence of bad faith is introduced, the issue should not be presented to the jury, and an award under this section is unjustiﬁed. Interstate Life & Accident Ins. Co. v. Brown, 146 Ga. App. 622, 247 S.E.2d 205 (1978). Prior to 1979 defense authorizing verdict for insurer made bad faith question for court. — Where the defense presented by the defendant insurance company, if believed, would authorize a verdict for it, the issue of ‘‘bad faith’’ in refusing to pay the claim should not be submitted to the jury. Hermitage Health & Life Ins. Co. v. Baggs, 115 Ga. App. 138, 154 S.E.2d 270 (1967). Where the evidence adduced showed a reasonable and probable cause for denial of a claim, it was error to submit the issue of bad faith to the jury. Witt v. Pennsylvania Nat’l Mut. Cas. Ins. Co., 117 Ga. App. 838, 162 S.E.2d 251 (1968). If question of liability close. — If the question of liability was a close one, the court had to see to it that a verdict illegally carrying a penalty for bad faith was not allowed to stand. Pearl Assurance Co. v. Nichols, 73 Ga. App. 452, 37 S.E.2d 227 (1946); Life & Cas. Ins. Co. v. Freemon, 80 Ga. App. 443, 56 S.E.2d 303 (1949), for comment, see 12 Ga. B.J. 337 (1950). 33-4-6 Justiciable controversy was presented. — Where the evidence adduced presented a justiciable controversy, the trial judge was authorized to conclude that there was a reasonable ground for contesting the claim so as to remove the issue from the jury and direct a verdict for the insurer. Ware v. Nationwide Mut. Ins. Co., 140 Ga. App. 660, 231 S.E.2d 556 (1976); Smith v. New York Life Ins. Co., 579 F.2d 1267 (5th Cir. 1978). Former rule was held incorrect by Supreme Court in 1979. — The rule that a ﬁnding of bad faith is not authorized if the evidence would have supported a verdict in accordance with the contentions of the defendant is incorrect. Colonial Life & Accident Ins. Co. v. McClain, 243 Ga. 263, 253 S.E.2d 745, answer conformed to, 150 Ga. App. 883, 258 S.E.2d 655 (1979). In any case, jury is not required if not demanded. — It was not error for the judge, sitting without a jury, to render judgment for damages and attorney’s fees under this section as well as for the amount stated in the face of the insurance policy, the case being in default, and no jury having been demanded. Great E. Cas. Co. v. Haynie, 147 Ga. 119, 92 S.E. 939 (1917). Bad faith to be judged by case made at trial. — The trial court erred in awarding summary judgment to an insurance company as to liability for bad-faith damages and attorney fees, as the issue of bad faith should be judged by the case made at trial, not by preliminary proofs or other ex parte affidavits. Stegall v. Guardian Life Ins. Co. of Am., 171 Ga. App. 576, 320 S.E.2d 575 (1984). The issue of bad faith should be judged by the case made at trial, not by the preliminary proofs or other ex parte affidavits. Blue Ridge Ins. Co. v. Maddox, 185 Ga. App. 153, 363 S.E.2d 595, cert. denied, 185 Ga. App. 909, 363 S.E.2d 595 (1987). Summary judgment held improper. — When the evidence of record did not establish as a matter of law that the insurer acted reasonably in refusing to honor the insured’s claim, the trial court erred in granting the insurer summary judgment on a claim for a bad-faith penalty and attorney fees. Travillian v. Geor- 173 33-4-6 Procedure (Cont’d) 3. Questions for Jury or Court (Cont’d) Funding Corp., 287 Ga. App. 392, 651 S.E.2d 507 (2007), cert. denied, No. S08C0137, 2008 Ga. LEXIS 107 (Ga. 2008). gia Farm Bureau Mut. Ins. Co., 182 Ga. App. 241, 355 S.E.2d 677 (1987). Insurer’s summary judgment motion denied even though reasonable factual dispute. — Insurer’s motion for summary judgment on plaintiff ’s claim of bad faith penalties and attorney’s fees was denied even though a reasonable dispute existed as to whether arson destroyed plaintiff ’s property since the faith of the company should not be judged by the preliminary proofs or other ex parte affidavits but at the case made at trial. Forbus v. Allstate Ins. Co., 603 F. Supp. 113 (N.D. Ga. 1984). Summary judgment to insurer proper following theft by computer virus. — As an insurance coverage dispute arose from a theft of the insured’s account by a key-logger virus, summary judgment was properly granted to the insurer on the insured’s breach of contract and bad faith claims because the loss was within the policy’s malicious-code exclusion. Metro Brokers, Inc. v. Transp. Ins. Co., No. 14-12969, 2015 U.S. App. LEXIS 3473 (11th Cir. Mar. 5, 2015) (Unpublished). Amount of penalties and attorney fees a jury question. — Trial court erred in determining the amount of bad faith penalties and attorney fees against an insured under O.C.G.A. § 33-4-6 because it was premature in determining the amount of the penalty without ﬁrst submitting it to a jury as required by § 33-4-6(a). Transp. Ins. Co. v. Piedmont Constr. Group, LLC, 301 Ga. App. 17, 686 S.E.2d 824 (2009), cert. denied, No. S10C0507, 2010 Ga. LEXIS 312 (Ga. 2010). Jury trial on attorney fees and expenses not error. — Although O.C.G.A. § 33-4-6 sets forth the exclusive remedy for bad faith denial of insurance beneﬁts so that litigation expenses under O.C.G.A. § 13-6-11 are not recoverable, a trial court did not commit any reversible error by ordering a jury trial on issues relating only to attorney fees and not other litigation expenses. Atl. Title Ins. Co. v. Aegis 4. Instructions Charge on bad faith required when in issue. — Where the issue of bad faith is raised by the pleadings and supported by the evidence, it is the duty of the court to charge the jury the law relative to such issue. Templeton v. Kennesaw Life & Accident Ins. Co., 216 Ga. 770, 119 S.E.2d 549 (1961). Request for charge is necessary. — In the absence of a timely written request, it was not error for a trial court to charge this section without deﬁning the term ‘‘bad faith’’ as applied to insurance companies. Hanover Fire Ins. Co. v. Elrod, 91 Ga. App. 403, 85 S.E.2d 821 (1955). Charge is properly given where insurer made low offer. — Where the defendant had offered the plaintiff less than 75 cents on the dollar of the lowest estimate proved on the trial of the case and this estimate did not include certain repairs claimed to be necessary by the plaintiff and which the witness making the estimate did not include because he did not know whether they were necessary or not, it cannot be said that a charge complained of, authorizing the jury to award attorney’s fees and damages as provided in this section, was error when the complaint was based on there being no evidence of bad faith. Fidelity & Cas. Co. v. Mangum, 102 Ga. App. 311, 116 S.E.2d 326 (1960). The court errs in charging that the plaintiff would be entitled to recover the penalty merely on proof of refusal and regardless of whether bad faith had been proved to the satisfaction of the jury. Reserve Life Ins. Co. v. Gay, 96 Ga. App. 601, 101 S.E.2d 158 (1957), rev’d on other grounds, 214 Ga. 2, 102 S.E.2d 492 (1958). Charge on section improper where insurer had reasonable ground to deny liability. — Where the defenses relied on by the insurance company cannot justly be said to be frivolous or obviously without merit, the court is not authorized to give in charge to the jury any instructions whatsoever with regard to 174 the assessment of damages and attorney’s fees against the company. Morris v. Imperial Ins. Co., 106 Ga. 461, 32 S.E. 595 (1899). Where the defendant insurer had reasonable ground for denying liability, charge relative to attorney fees was error. Gulf Life Ins. Co. v. Moore, 90 Ga. App. 791, 84 S.E.2d 696 (1954). If there is any reasonable ground for the insurer to contest the claim, there is no bad faith, and it is error for the trial court to charge the jury under this section that they may return a verdict for penalties and attorney’s fees. Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 127 S.E.2d 454 (1962); Pioneer Nat’l Title Ins. Co. v. American Cas. Co., 459 F.2d 963 (5th Cir. 1972). Charge on section held of proper scope. — Where the court charged this section and deﬁned the meaning of the term ‘‘bad faith’’ as used in the section, and then clearly instructed the jury that they would have to ﬁnd by a preponderance of the evidence that the failure and refusal to make payment was on account of bad faith on the part of the insurance company before it would be liable for damages or attorney’s fees, and that if the company did not act in bad faith, the insured could not recover either damages or attorney’s fees, the charge was not error. Palatine Ins. Co. v. Gilleland, 79 Ga. App. 18, 52 S.E.2d 537 (1949). Charge as to waiving proof of loss harmless if liability admitted. — Where the defendant’s answer admitted liability in a lesser amount than the plaintiff claimed, a charge with reference to waiving a proof of loss was, if error, harmless, for the admission of some liability waived the technical requirements of a proof of loss. Fidelity & Cas. Co. v. Mangum, 102 Ga. App. 311, 116 S.E.2d 326 (1960). Jury bound to observe restrictive instructions on considering evidence. — Where instructions are given to consider certain exhibits in regard to the question of bad faith, the jury is bound to consider such evidence solely for that restricted purpose. Hermitage Health & Life Ins. Co. v. Baggs, 115 Ga. App. 138, 154 S.E.2d 270 (1967). 33-4-6 5. Verdict and Judgment An assessment of penalties is not a condition precedent to an award of attorney fees. Hardin v. Fireman’s Fund Ins. Co., 150 Ga. App. 277, 257 S.E.2d 300 (1979). Award of attorney’s fees. — That the jury awarded fees without also awarding damages of 25 percent or less, as provided for in this section, is no ground for setting aside their ﬁnding as to the attorney’s fees. Continental Aid Ass’n v. Hand, 22 Ga. App. 726, 97 S.E. 206 (1918). Since this section does not require that penalty damages be paid, but merely limits the amount of liability, such an award is not a condition precedent to the award of reasonable attorney’s fees. American Reliable Ins. Co. v. Woodward, 143 Ga. App. 652, 239 S.E.2d 543 (1977). Verdict denying damages for bad faith bars award of attorney’s fees. — The language used in a verdict, that ‘‘we, the jury, do not award any damages to the plaintiff for bad faith on the part of the defendant,’’ nulliﬁes that part of the jury’s verdict awarding attorney’s fees. Union Cent. Life Ins. Co. v. Cofer, 103 Ga. App. 355, 119 S.E.2d 281 (1961). The award of attorney’s fees is not authorized where the verdict states, ‘‘we, the jury, do not award any damages to the plaintiff for bad faith on the part of the defendant.’’ Hardin v. Fireman’s Fund Ins. Co., 150 Ga. App. 277, 257 S.E.2d 300 (1979). Award of damages in absence of ﬁnding of bad faith was error. — In a widow’s suit against an insurer for failing to pay beneﬁts under a life insurance policy, because the jury found the insurer was not guilty of bad faith in its refusal to pay these beneﬁts but awarded the widow additional damages, the additional damages award was not authorized under O.C.G.A. § 33-4-6(a) because a ﬁnding of the insurer’s bad faith was a condition precedent to such an award and there was no other authority for awarding additional damages for an insurer’s failure to pay. Cherokee Nat’l Life Ins. Co. v. Eason, 276 Ga. App. 183, 622 S.E.2d 883 (2005). Part of verdict awarding penalty and attorney’s fees properly written off if without evidence. — Where the 175 Procedure (Cont’d) 5. Verdict and Judgment (Cont’d) evidence demands a ﬁnding that the insurance company did not act in bad faith in refusing to pay the claim, it is proper to write off that part of the verdict awarding a penalty and attorney’s fees, where the verdict is otherwise supported by the evidence. Jackson v. Motors Ins. Corp., 97 Ga. App. 658, 104 S.E.2d 253 (1958). Pleadings not amended after judgment to allow claims for statutory damages. — After obtaining a judgment in its favor against uninsured motorist, the motorist could not amend pleadings to add claims for statutory damages, through O.C.G.A. §§ 33-4-6 and 33-7-11, even though the judgment in the action in the motorist’s favor held that the penalties and fees sought must be sought in an action against an uninsured motorist, because the trial court determined the court lacked authority to reopen the case after the judgment to allow amendment of the complaint. McCall v. Wyman, 173 Ga. App. 131, 325 S.E.2d 629 (1984). Modiﬁcation of order denying attorney’s fees not authorized. — When the trial court determined as a matter of law that there was no claim under an insurance policy, there could be no recovery of attorney’s fees under O.C.G.A. § 33-4-6, and the court was without power to modify the court’s order denying an attorney’s fees award to plaintiff after the term of court expired in which that order was made. State Farm Mut. Auto. Ins. Co. v. Johnson, 242 Ga. App. 591, 530 S.E.2d 492 (2000). 6. Appeal Damages and attorney’s fees part of amount involved for appeal from justice of peace. — In an action in a justice of the peace court, where the plaintiff, as a beneﬁciary in a life insurance policy, brought suit against the insurer to recover in the sum of $30.00, representing the amount due the plaintiff under the terms of the policy, $7.50 representing 25 percent of the amount sued for as damages, and $50.00 representing reasonable attorney’s fees as provided in this section, which authorizes a recovery for damages 33-4-6 and attorney’s fees where the insurer has acted in bad faith in failing to pay the amount due under a policy within the required time, the amount sued for and claimed in the suit was in excess of $50.00, for purposes of appeal. Tate v. Industrial Life & Health Ins. Co., 58 Ga. App. 305, 198 S.E. 303 (1938). Only damages counted in appeal from Civil Court of Fulton County. — The penalty allowable under this section where sued for is considered as part of the amount involved in the action in determining if appeal lies from Civil Court of Fulton County to Court of Appeals. General Assurance Corp. v. Roberts, 92 Ga. App. 834, 90 S.E.2d 70 (1955). Attorney’s fees excluded from amount involved. — The attorney’s fees allowable under this section are not part of the ‘‘amount involved’’ in an action in the Civil Court of Fulton County. General Assurance Corp. v. Roberts, 92 Ga. App. 834, 90 S.E.2d 70 (1955). Insured’s verdict not disturbed if any evidence supports it. — The question as to whether or not an insurance company acted in bad faith in refusing to pay a loss, where the evidence was conﬂicting but sufficient to support either a verdict for or against the insurer, was a question solely for the jury, and the Court of Appeals cannot say as a matter of law that its ﬁnding of bad faith was not authorized. Hanover Fire Ins. Co. v. Elrod, 91 Ga. App. 403, 85 S.E.2d 821 (1955). In reviewing the determination of the issue of whether an insurer’s refusal to pay is frivolous and unfounded, if there is some evidence to support the verdict of the trial court in favor of the insured, it will not be disturbed. National-Ben Franklin Ins. Co. v. Prather, 109 Ga. App. 459, 136 S.E.2d 499 (1964). Proper rule is that a judgment for ‘‘bad faith’’ penalties and attorney’s fees should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense which vindicates the good faith of the insurer. Progressive Cas. Ins. Co. v. Avery, 165 Ga. App. 703, 302 S.E.2d 605 (1983); Republic Ins. Co. v. Martin, 182 Ga. App. 390, 355 S.E.2d 694 (1987); First Fin. Ins. Co. v. American Sandblast- 176 ing Co., 223 Ga. App. 232, 477 S.E.2d 390 (1996). Unless as matter of law reasonable defense vindicates good faith of insurer. — Judgment for the insured should be affirmed if there is any evidence to support it, unless it can be said as a matter of law that there was a reasonable defense which vindicates the good faith of the insurer. Colonial Life & Accident Ins. Co. v. McClain, 243 Ga. 263, 253 S.E.2d 745, answer conformed to, 150 Ga. App. 883, 258 S.E.2d 655 (1979); State Farm Fire & Cas. Co. v. Mills Plumbing Co., 152 Ga. App. 531, 263 S.E.2d 270 (1979); State Farm Mut. Auto. Ins. Co. v. Chadwick, 154 Ga. App. 394, 268 S.E.2d 436 (1980); Canal Ins. Co. v. Bryant, 166 Ga. App. 483, 304 S.E.2d 565 (1983). Judgment to be affirmed absent defense indicating good faith of insurer. — The judgment should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense which vindicates the good faith of the insurer. Georgia Int’l Life Ins. Co. v. Harden, 158 Ga. App. 450, 280 S.E.2d 863 (1981). Award of attorney’s fees not disturbed if within range of evidence as to value. — Where loss is covered by the insurance policy and the insurer has refused to pay within 60 days after a demand has been made, an award of attorney’s fees is not unauthorized as a matter of law; and an appellate court will not disturb the ﬁndings and judgment thereon when the award is within the range of evidence as to the reasonable value thereof. American Reliable Ins. Co. v. Woodward, 143 Ga. App. 652, 239 S.E.2d 543 (1977). Penalty part of verdict will be written off if defendant acquitted of bad faith. — Where the questions of law made in a case were of such character as to acquit the defendant of bad faith in refusing to pay the loss within the time limited by law, the Supreme Court will direct that, upon or before the entering of the remittitur, the plaintiff shall write off the items allowed for attorney’s fees and damages in the ﬁnding of the jury and that the verdict thereupon will stand affirmed. Phenix Ins. Co. v. Clay, 101 Ga. 331, 28 33-4-6 S.E. 853, 65 Am. St. R. 307 (1897). Defendant having judgment modiﬁed is entitled to cost of appeal. — Where there was no evidence to authorize a verdict for attorney’s fees under this section, this will not require a reversal, but direction will be given to write off the attorney’s fees, and the defendant, having obtained a material modiﬁcation of the judgment of the court below, is entitled to the cost of bringing the case to the Supreme Court. Empire Life Ins. Co. v. Allen, 141 Ga. 413, 81 S.E. 120 (1914). Modiﬁcation of penalty award when refusal not unfounded as to one claim. — In action to recover double indemnity beneﬁts for alleged accidental death of insured, where jury found in favor of the plaintiff and awarded penalty and attorney’s fees against the insurer, the appellate court would divide the penalty and attorney’s fees as between the death beneﬁt claim and the double indemnity claim, and direct a write-off of one-half this amount, where the refusal of the insurer to pay the double indemnity beneﬁt did not appear to be frivolous or unfounded. Progressive Life Ins. Co. v. Smith, 71 Ga. App. 157, 30 S.E.2d 411 (1944). Finding evidence insufficient to show bad faith does not necessarily modify judgment. — A ﬁnding by the appellate court that the evidence was insufficient to show bad faith is not necessarily a modiﬁcation of the original judgment. National-Ben Franklin Fire Ins. Co. v. Darby, 48 Ga. App. 394, 172 S.E. 819 (1934). Modifying award of fees set in notes modiﬁes original judgment. — Attorney’s fees in notes are fees which arise by contract, and a modiﬁcation of a judgment awarding such fees is a modiﬁcation of the judgment on the original contract. National-Ben Franklin Fire Ins. Co. v. Darby, 48 Ga. App. 394, 172 S.E. 819 (1934). Judgment on appeal reversed where not supported by record. — Where the Court of Appeals ruled that there was support in the record for determining that the insurer has followed a strained interpretation of its contract by always paying only the lesser amount, but 177 Procedure (Cont’d) 6. Appeal (Cont’d) nothing in the record supports the ruling of the Court of Appeals that the insurance company has followed any particular practice with reference to the payment of the claims of other persons under the policy, the resulting judgment of the Court of Appeals as to penalties and attorney’s fees will be reversed. Guarantee Trust Life Ins. Co. v. Davis, 244 Ga. 541, 261 S.E.2d 336 (1979). 33-4-6 Reversal on ‘‘bad faith’’ penalties and attorney’s fees does not affect underlying award. — When the only error in the case is the award of ‘‘bad faith’’ penalties and attorney’s fees, the judgment will be affirmed with direction that the portion thereof awarding such penalties and attorney’s fees be written off. Progressive Cas. Ins. Co. v. Avery, 165 Ga. App. 703, 302 S.E.2d 605 (1983).