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Lawskills.com Georgia Caselaw
TOWNLEY v. PATTERSON et al.
52284.
Action on insurance policy. DeKalb State Court. Before Judge Mitchell.
DEEN, Presiding Judge.
Suit was orginally instituted against the defendant-insurer and its agent for failure to pay claims under a fire insurance policy. The agent was never served and was not a party below nor is he a party on this appeal. The plaintiff-insured appeals from a grant of summary judgment to the defendant-insurer.
Counsel stipulated that the policy contained the following language: "No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy have been complied with, and unless commenced within twelve (12) months next after inception of the loss . . ." Such clauses are conditions precedent to recovery and are binding against the insured. Livaditis v. American Cas. Co., 117 Ga. App. 297 (160 SE2d 449). See Code Ann. 5-3201 at lines 157-161; Darnell v. Fireman's Fund Ins. Co., 115 Ga. App. 367 (154 SE2d 741).
Plaintiff's evidence as to when the loss occurred is apparently somewhat confused. She did say however that she spoke to the insurer's agent concerning the loss in September of 1973. The suit was filed in May of 1975. Thus assuming that the loss occurred at the latest possible time, September 1973, suit was not filed until some twenty months thereafter. Since there was ample time after the insured discovered the loss to file this action and still be within the limitation period and since she had the burden of proving that the action was filed within 12 months from the inception of loss and failed to do so, the judgment in favor of the defendant was proper.
Judgment affirmed. Quillian and Webb, JJ., concur.
Hansell, Post, Brandon & Dorsey, Lawrence S. Burnat, for appellees.
Margaret Hopkins, James R. Venable, for appellant.
ARGUED MAY 24, 1976 -- DECIDED JUNE 15, 1976 -- REHEARING DENIED JULY 8, 1976 -- CERT. APPLIED FOR.
Friday May 22 08:54 EDT


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