Niagara Fire Insurance v. Powell

NIAGARA FIRE INSURANCE COMPANY v. POWELL

Niagara Fire Ins. v. Powell, 147 S.E.2d 823 (Ga. Ct. App. 1966)

Court: Court of Appeals of Georgia · State Appellate Courts
Decided: March 11, 1966
Docket: No. 41804
Citations: 147 S.E.2d 823113 Ga. App. 3111966 Ga. App. LEXIS 1047

Cited by 2

Opinion of the Court

Text extracted by OCR from a scanned original; check the original for exact wording.

Felton, Chief Judge.

1. A one-year contractual limitation upon the filing of such an action as is here involved has been held valid by the Supreme Court and this court. Springfield Fire &c. Ins. Co. v. Carter, 110 Ga. App. 382 (1, 3) ( 138 SE2d 590 ); Aiken v. Northwestern Mutual Ins. Co., 106 Ga. App. 220 ( 126 SE2d 630 ) and cit.

2. Where an action is brought on a policy containing a one-year contractual limitation upon the filing of an action on the policy the petition must allege either a waiver of the provision or an estoppel against the insurer to rely on the provision of the policy limiting the time for filing the action. Neese v. Milwaukee Mechanics’ Ins. Co., 84 Ga. App. 473 ( 66 SE2d 172 ); Delta Ins. Co. v. Wood, 99 Ga. App. 58 ( 107 SE2d 693 ).

3. In the absence of allegations in the petition that the insurer had done anything which could be construed as a waiver of the time for filing the action or to show an estoppel against the insurer to assert the limitation, the petition was subject to the general demurrer.. General Ins. Co. of America v. Lee Chocolate Co., 97 Ga. App. 588 ( 103 SE2d 632 ); Stanley v. Sterling Mutual Life Ins. Co., 12 Ga. App. 475 ( 77 SE 664 ); Knights of Ku Klux Klan v. Fidelity & Deposit Co. of Maryland, 47 Ga, App. 12 ( 1691 SE 514 ). There is no contention that there was an agreement for an appraisal or arbitration. See also Underwriters Agency v. Sutherlin, 55 Ga. 266 , 267 and Gibraltar Fire *313 & Marine Ins. Co. v. Lanier, 64 Ga. App. 269 ( 13 SE2d 27 ). Cases such as Cordell v. Metropolitan Life Ins. Co., 54 Ga. App. 178 ( 187 SE 292 ) are not applicable here because in those cases the limitation of action was not dated from the time of loss but from the expiration of the time within which a proof of loss was required to be filed.

The court erred in overruling the general demurrer to the petition.

Judgment reversed.

Frankum and Pannell, JJ., concur.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 2 cases

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State Appellate Courts2

Relies on it most ⓘ

Darnell v. Fireman's Fund Insurance154 S.E.2d 741 (Ga. Ct. App. 1967)
Gravely v. Southern Trust Insurance258 S.E.2d 753 (Ga. Ct. App. 1979)

Most recent

Gravely v. Southern Trust Insurance258 S.E.2d 753 (Ga. Ct. App. 1979)
Darnell v. Fireman's Fund Insurance154 S.E.2d 741 (Ga. Ct. App. 1967)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 9

Depth	Case	Cited by
	Stanley v. Sterling Mut. Life Ins., 77 S.E. 664 (Ga. Ct. App. 1913)	26
	Gen. Ins. Co. of Am. v. Lee Chocolate Co., 103 S.E.2d 632 (Ga. Ct. App. 1958)	23
	Gibraltar Fire & Marine Ins. v. Lanier, 13 S.E.2d 27 (Ga. Ct. App. 1941)	16
	Aiken v. Northwestern Mut. Ins., 126 S.E.2d 630 (Ga. Ct. App. 1962)	14
	Cordell v. Metro. Life Ins., 187 S.E. 292 (Ga. Ct. App. 1936)	10
	Springfield Fire & Marine Ins. Co. v. Carter, 138 S.E.2d 590 (Ga. Ct. App. 1964)	8
	Delta Ins. Co. v. Wood, 107 S.E.2d 693 (Ga. Ct. App. 1959)	6
	Neese v. Milwaukee Mechanics' Ins., 66 S.E.2d 172 (Ga. Ct. App. 1951)	5
	Underwriters' Agency v. Sutherlin, 55 Ga. 266 (1875)	26

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