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Action on insurance policy. Columbia Superior Court. Before Judge Kennedy.
1. There was sufficient evidence, in this action against the insurer under a policy of automobile liability insurance, to support the finding that the automobile which was driven by the plaintiff, a county commissioner, and which was owned by the county, was not a non-owned vehicle "furnished for the regular use of the named insured."
2. No bad faith being shown on the part of the defendant, the grant of attorney fees under Code Ann. 56-1206 was error.
The pleadings in this case are set out in National-Ben Frank- lin Ins. Co. v. Prather, 106 Ga. App. 311 (126 SE2d 834). The plaintiff, Chairman of the Board of County Commissioners of Columbia County, sought to recover under a policy of automobile liability insurance primarily insuring a Ford automobile belonging to him personally sums expended by him in satisfaction of a tort claim against him involving an automobile belonging to Columbia County. Plaintiff contended he was covered under a policy provision including "use of the owned automobile or any non-owned automobile." Defendant relied on a coverage limitation defining "non-owned automobile" as "an automobile or trailer not owned by or furnished for the regular use of . . . the named insured." It appears that the plaintiff owned a passenger car, two pickup trucks and two large trucks; that the vehicle here involved was purchased by the county commissioners; that the fiscal affairs of the county are in the hands of the three-member board of county commissioners; that no resolution was ever passed authorizing its purchase or showing its intended use but that the purchase invoice was approved by a majority of the commissioners. All presently on the board and a member since resigned testified that they had so used it. More often than not the plaintiff drove it from his home in Harlem to the county seat of Appling when he went there on county business. He used his personal automobile on both county and personal business and occasionally used this vehicle on personal business. On the day when the collision occurred he was using it for personal business.
The trial resulted in a verdict in favor of the plaintiff for the principal sum plus attorney fees. The defendant moved for judgment notwithstanding the verdict and for a new trial, the latter motion being directed only against the award of attorney fees. Both motions were overruled and the defendant assigns error on the judgment.
1. The only previous discussion in this State of the exclusionary clause "furnished for the regular use of" in automobile liability policies is to be found in State Farm Mut. Auto. Ins. Co. v. Bates, 107 Ga. App. 449 (130 SE2d 514) where Pacific Auto Ins. Co. v. Lewis, 56 Cal. App. 2d 597 (132 P2d 846) is cited as authority for the proposition that the word "furnished for" must be read in connection with "regular use" and that both are operative parts of the exclusion. As there stated: "Assuming that the use of such a car may be regular without being exclusive, there are other elements which may be considered in determining the meaning intended . . . [An automobile] furnished for all purposes and at all times and places would clearly be for his regular use. One furnished at all times but strictly for business purposes alone could hardly be said to have been furnished for his regular use at a time and place when it was being used for personal purposes." This is emphasized in the special concurrence in Bates where it is stated (P. 453): "The provision should be interpreted to mean that to exclude coverage there must have been the furnishing for regular use and also regular use." In at least one case the court has gone so far as to hold that a stolen car, not being furnished, is covered under this provision. Sperling v. Great Amer. Indem. Co., 199 NYS2d 465 (7 NY2d 442, 166 NE2d 482).
2. The only ground of the motion for a new trial which was insisted upon is that contending that the finding for the plaintiff of $2,500 as attorney fees was not authorized in that there was no showing that the defendant had acted in bad faith by a frivolous or unfounded refusal to pay. This issue was extremely close on its facts, since the evidence showed without dispute that the plaintiff had had far more actual use of the vehicle than any other person or group of people, and whether or not the board of county commissioners had in fact furnished it for his regular use was left as a conclusion or inference which the jury must necessarily have to reach from all the facts; indeed, the plaintiff in error is doubtless correct in its contention that more evidence points to the conclusion it was furnished for regular use than against it. The preponderance of evidence is for the jury, however, and not for this court to decide. As in the main issue of coverage or noncoverage, so in the issue of whether the defendant's refusal to pay was frivolous and unfounded, if there is some evidence to support the verdict it will not be disturbed. However, where it appears from the evidence that the defendant's refusal to pay was justified on the basis of the facts appearing to the defendant at the time of the refusal, bad faith is not shown. Georgia Life &c. Ins. Co. v. Gammage, 91 Ga. App. 125 (1) (85 SE2d 85). None of the evidence here supports the position that the defendant in bad faith contended the vehicle in question was not furnished for the regular use of the plaintiff. The award of attorney fees was therefore not authorized.
The overruling of the motion for a new trial is affirmed with direction that the sum of $2,500 awarded by the jury as attorney fees be stricken. Byrd v. Equitable Life Assur. Soc., 185 Ga. 628 (6) (196 SE 63). Since this amounts to a substantial modification of the judgment, the motion of the plaintiff in error to tax costs in the appellate court against the plaintiff is granted. Anderson v. Beasley, 169 Ga. 720 (151 SE 360).
Randall Evans, Jr., contra.
Fulcher, Fulcher, Hagler & Harper, Gould B. Hagler, for plaintiff in error.
Friday May 22 21:48 EDT

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