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Lawskills.com Georgia Caselaw
STATE FARM FIRE & CASUALTY COMPANY et al. v. PACE et al.
70641.
SOGNIER, Judge.
Action on policy. Cobb Superior Court. Before Judge White.
Dobbins, as individuals, and Dobbins as the purported administratrix of the Estate of R. C. Pace, against State Farm Fire and Casualty Company and Vic Miltiades seeking to recover proceeds under a fire insurance policy issued by State Farm, through Miltiades, to R. C. Pace. The property insured under the policy issued by State Farm to R. C. Pace was damaged in a fire on February 28, 1982. The trial court denied State Farm and Miltiades' motion for summary judgment and this court granted their application for interlocutory review.
Appellants contend the trial court erred by denying their motion for summary judgment because appellees are precluded from asserting their claim under the provision in the insurance contract requiring that suit for breach of the contract be filed within twelve months after inception of the loss. Such contractual limitations have been held valid and binding. See Commercial Union Ins. Co. v. F. R. P. Co., 172 Ga. App. 244, 245 (1) (322 SE2d 915) (1984); Universal Scientific v. Safeco Ins. Co., 174 Ga. App. 768, 772 (331 SE2d 611) (1985).
The trial court thus erred by denying appellants' motion for summary judgment.
Appellees further assert that their complaint presents a cause of action in tort for appellants' alleged negligent failure to pay appellees' claims under the policy and thus the two-year statute of limitation in OCGA 9-3-33 is applicable. " '(G)enerally, a mere breach of a valid contract amounting to no more than a failure to perform in accordance with its terms does not constitute a tort or authorize the aggrieved party to elect whether he will proceed ex contractu or ex delicto.' [Cits.] 'It is well settled that misfeasance in the performance of a contractual duty may give rise to a tort action.' [Cit.] In such cases, however, the injury complained of must be 'an independent injury over and above the mere disappointment of plaintiff's hope to receive his contracted-for benefit.' [Cit.]" (Emphasis supplied.) Smith v. United Ins. Co., 169 Ga. App. 751, 752 (1) (315 SE2d 265) (1984). Appellees failed to present any evidence to rebut State Farm's assertion that its sole basis for refusing to pay the claim was that neither Howard Pace nor Dobbins were the named insureds on the policy, that the administration of R. C. Pace's Estate had been terminated, that the warranty deed listed Dobbins as the registered owner of the property, and that State Farm had not been notified as to any assignment of the policy. There is no evidence that State Farm's actions constituted a breach of any duties other than those allegedly created by the contract. See Commercial Bank &c. Co. v. Buford, 145 Ga. App. 213, 214-215 (243 SE2d 637) (1978). Therefore, summary judgment was improperly denied to appellants as to all appellees on this issue.
William Lewis Spearman, Kenneth F. Dunham, Jeffrey L. Evans, for appellees.
Frank J. Klosik, Jr., Fred M. Valz III, Suzanne S. Barksdale, for appellants.
DECIDED OCTOBER 23, 1985 -- REHEARING DENIED NOVEMBER 6, 1985 -- CERT. APPLIED FOR.
Thursday May 21 17:11 EDT


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