Opinion
43927.
SUBMITTED SEPTEMBER 6, 1968.
DECIDED NOVEMBER 1, 1968.
Action on insurance policy. Chattooga Superior Court. Before Judge Painter.
Robert Edward Surles, for appellant.
Joseph E. Loggins, for appellee.
1. Construing the insurance policy liberally and adopting that interpretation most favorable as to coverage of the insured there was sufficient evidence to authorize recovery under the provisions of the policy.
2. Since there was a close question involving an interpretation of the policy provisions and whether the evidence was sufficient to show coverage under the policy, a penalty for bad faith and attorney's fees was not authorized.
SUBMITTED SEPTEMBER 6, 1968 — DECIDED NOVEMBER 1, 1968.
J. B. Woodward, d/b/a Piggly Wiggly, brought suit against U.S. Fidelity Guaranty Company seeking recovery under an insurance policy for safe burglary in the amount of $2,735.92, plus $25 damages to the building, and for bad faith penalty and attorney's fees for the insurance company's refusal to pay the sum in question.
The policy provided: "To pay for loss of money, securities and other property from within the vault or safe by safe burglary or attempt thereat." The policy defined "safe burglary" as "(1) the felonious abstraction of insured property from within a vault or safe described in the declarations and located within the premises by a person making felonious entry into such vault or such safe and any vault containing the safe, when all doors thereof are duly closed and locked by all combination locks thereon, provided such entry shall be made by actual force and violence, of which force and violence there are visible marks made by tools, explosives, electricity or chemicals upon the exterior of (a) all of said doors of such vault or such safe and any vault containing the safe, if entry is made through such doors, or (b) the top, bottom or walls of such vault or such safe and any vault containing the safe through which entry is made, if not made through such doors, or (2) the felonious abstraction of such safe from within the premises."
On the trial of the case the plaintiff's evidence showed that his grocery store had been entered by unknown persons after the closing of the store on October 8, 1966, entry being accomplished through the roof. The plaintiff's safe was found in the rear of the store where it had been rolled from its usual position. Various tools normally used in a burglary were found lying near the safe. The safe itself, which had been locked the night before, was found lying on its back with the door open, and the contents thereof, cash receipts in the amount of $2,735.92, were missing. According to the plaintiff's testimony there was a new scratch on the upper left-hand corner of the safe and a knob on the lower right-hand hinge was knocked off. According to testimony of law enforcement officers attempts to break in were normally made on the upper left-hand corner.
A witness for the defendant stated that the scratch on the safe appeared to be an old one when he examined it. Other witnesses for the defendant testified that the safe apparently was opened by manipulating the combination, and the plaintiff in his testimony conceded that he knew of no other way by which the safe was entered.
At the close of the evidence the trial court overruled the defendant's motion for directed verdict as to the burglary loss and as to bad faith penalties but did direct a verdict as to damages to the building. The jury returned a verdict in the amount sought plus bad faith penalties for $683.98 and $700 attorney's fees. Subsequently the defendant moved for judgment notwithstanding the verdict and in the alternative for a new trial. The trial judge overruled the motions and the defendant appeals.
1. The principal question for determination is whether under the evidence there was a burglary within the coverage of the policy.
The insurance company contends that there was no "safe burglary" within the meaning of the policy since the evidence conclusively showed that there had been no entry into the safe by actual force and violence. It is true that the policy's definition of safe burglary requires that there be a forcible and violent entry. However, coverage under the policy includes loss "by safe burglary or attempt thereat." This language creates an ambiguity since presumably a loss would not occur from an attempt where there was no actual entry by force and violence.
In construing ambiguous provisions of an insurance policy words are given an intendment favoring the insured and the interpretation most favorable to coverage of the insured will prevail. State Farm Fire c. Co. v. Rowland, 111 Ga. App. 743, 744 ( 143 S.E.2d 193); Hartford Acc. c. Co. v. Grant, 113 Ga. App. 795, 798 ( 149 S.E.2d 712); Warwick v. Knights of Damon, 107 Ga. 115, 121 ( 32 S.E. 951). As held in Hartford Acc. c. Co. v. Grant, 113 Ga. App. 795, 798, supra: "Contracts of insurance are to be construed more strongly against the insurer and in favor of the insured and, where an insurance policy will bear two interpretations, that one will be adopted which sustains the claim for indemnity."
According to Black's Law Dictionary, 4th Ed., p. 162: "In statutes and in cases other than criminal prosecutions an `attempt' ordinarily means an intent combined with an act falling short of the thing intended." There is no definition of an attempt in the policy provisions and giving such word its ordinary significance we can only conclude that the policy would cover a loss where there was an attempt at safe burglary within the meaning of the policy but that entry was accomplished by another means. To construe the policy as contended for by the appellant would be to render meaningless the words "or attempt thereat." While the evidence may not show a "safe burglary" within the terms of the policy, there is evidence which would show an attempt. Therefore, construing the policy in favor of the insured, there was sufficient evidence to authorize a recovery under the policy provisions.
2. "Refusal to pay in bad faith means a frivolous and unfounded denial of liability. If there is any reasonable ground for the insurer to contest the claim, there is no bad faith." Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 316 ( 127 S.E.2d 454); Gulf Life Ins. Co. v. Howard, 110 Ga. App. 76 (3) ( 137 S.E.2d 749). Thus, penalties for bad faith are not authorized where there is a disputed question of fact. As held in American Cas. Co. v. Seckinger, 108 Ga. App. 262, 264 ( 132 S.E.2d 794): "Since the evidence would have authorized a verdict and judgment for the defendant, it was not sufficient to authorize a finding of bad faith and the award of damages and attorneys' fees." Southern Ins. Co. v. Ray, 40 Ga. App. 262 (2) ( 149 S.E. 304); Old Colony Ins. Co. v. Dressel, 109 Ga. App. 465 (3) ( 136 S.E.2d 525); U.S. Fidel. c. Co. v. Biddy Lumber Co., 114 Ga. App. 358, 359 ( 151 S.E.2d 466). Moreover, our courts have "consistently held that no `bad faith' exists where there is a doubtful question of law involved." Brown v. Seaboard Lumber c. Co., 221 Ga. 35, 38 ( 142 S.E.2d 842). Where the questions of law involved in a case are intricate and difficult of solution, the insurer has the right to contest payment of the claim and is not guilty of bad faith in refusing to pay it. New York Life Ins. Co. v. Watson, 48 Ga. App. 211, 214 ( 172 S.E. 602); Fireman's Fund Ins. Co. v. Standridge, 103 Ga. App. 442 ( 119 S.E.2d 585); Life Ins. Co. of Ga. v. Burke, 219 Ga. 214, 221 ( 132 S.E.2d 737).
In this case there was both a conflict in the evidence and a close question as to interpretation of the policy provisions. Hence, the bad faith penalty and attorney's fees under Code Ann. § 56-1206 (Ga. L. 1960, pp. 289, 502; Ga. L. 1962, p. 712) were not authorized ( American Nat. Ins. Co. v. Holbert, 50 Ga. App. 527, 528 ( 179 S.E. 219)), and the trial judge erred in failing to direct a verdict for the defendant and in submitting such issue to the jury.
The judgment will be affirmed on condition that the $683.98 penalty for bad faith and $700 attorney's fees be written off; otherwise it is reversed.
Judgment affirmed on condition. Bell, P. J., and Hall, J., concur.