Williams v. Aetna Casualty & Surety Co.

Pope, Judge,

dissenting.

I respectfully dissent to Division 1 of the majority opinion.

It has long been recognized in this state that “ ‘intent, good faith, motive, and other such matters relating to the state of a person’s mind are usually not easily susceptible of direct proof. But frequently the state of mind accompanying the doing of an act is illustrated by other acts of a similar nature, done or proposed by the defendant in such a way as to indicate a general practice or course of conduct, or as to display motive, knowledge, intent, good faith, bad faith, and a variety of other such things. (Cits.)’ Tapley v. Youmans, 95 Ga. App. 161, 175 (7) (97 SE2d 365) (1957).” American Game &c. Svc. v. Knighton, 178 Ga. App. 745, 746-47 (344 SE2d 717) (1986). See also Seaboard Coastline R. Co. v. Delahunt, 179 Ga. App. 647 (8) (347 SE2d 627) (1986). Thus, I believe that the evidence of Aetna’s failure to timely pay Williams’ workers’ compensation claim should have been admitted as relevant to the issue of Aetna’s good faith under OCGA § 33-34-6 (c). In so holding, I wish to stress that it is not my intention to eviscerate the provisions of OCGA § 24-2-2; however, because both claims arose out of the same accident and were handled in a similar manner by the same claims adjuster at Aetna, I believe the more sagacious course in the case sub judice is to allow admission of the evidence. It is also my opinion that such a course better serves the “clear legislative intent underlying [OCGA § 33-34-6] to provide holders of no-fault insurance policies with a means to encourage prompt disposition of their claims.” Jones v. State Farm Mut. &c. Ins. Co., 156 Ga. App. 230, 235 (274 SE2d 623) (1980).

Moreover, I am not persuaded that the authority cited in the majority opinion mandates a different conclusion. In my opinion Canal Ins. Co. v. Winge Bros., 97 Ga. App. 782 (2) (104 SE2d 525) (1958), in which the insurer sought to admit evidence dealing with payments made to the insured on an apparently unconnected prior loss, is both factually and legally inapposite to the present case in which the insured’s employee sought to present evidence concerning the insurer’s slow payment on a claim arising out of identical facts. And, unlike the majority, I do not believe that the holding in Canal Ins. Co. requires us to consider the time at which the workers’ compensation claim was resolved as relevant to the issue here under review.

For the foregoing reasons, I would reverse the trial court’s ruling on the admissibility of the evidence concerning slow payment on Williams’ workers’ compensation claim.

I am authorized to state that Presiding Judge Banke, Presiding Judge McMurray and Judge Benham join in this dissent.

*689Decided April 9, 1987 Rehearing denied April 22, 1987 Alfred N. Corriere, for appellant. Kenneth B. Hodges, Jr., for appellee.