dissenting.
In my view, the superior court did not err in granting the Talbots’ motion for summary judgment on the issue of plaintiff’s liability under the insurance policy. Since I would affirm the judgment of the superior court, I respectfully dissent.
Plaintiff Allstate Insurance Company issued a Deluxe Homeowners Policy covering a house owned by defendants Christopher E. Talbot and Beverly H. Talbot and located in Hahira, Georgia. The coverage provided under the policy included both dwelling and property damage in the event of fire.
On the morning of April 23, 1988, the house was damaged by fire. At that time the Talbots were having marital and financial difficulties, neither was living in the house, and all utilities to the house had been disconnected. Nonetheless, Mrs. Talbot, along with some friends, elected to spend the night of April 22-23, 1988, in the house. The other persons present were Kenneth Inman, whom Mrs. Talbot was dating at the time, defendant Carrie L. Garay, Harold G. Miller, whom Mrs. Carrie L. Garay was dating at the time, and two minor children of Carrie L. Garay.
At approximately 7:10 a.m., Mrs. Talbot was awakened by Mr. Inman and told that the house was on fire. They attempted to warn the others but were unable to reach them through the house, so they went outside and knocked on the windows of the room in which Mr. Miller and Mrs. Garay were staying, then assisted them in getting out *194of the house via the window. The four then proceeded to the window of the room in which the children were sleeping, but were unable to save the children.
An investigation into the cause and origin of the fire was initiated by plaintiff. Plaintiff’s investigator opined that the fire was intentionally set, using an accelerant.
The Talbots filed their claim to recover under the insurance policy. Plaintiff initiated the case sub judice as a declaratory judgment action seeking an adjudication of its rights, duties, and obligations in regard to the defendants, that is, the Talbots, Carrie L. Garay, and John J. Garay, father of the children killed in the fire. The Talbots answered and counterclaimed seeking to recover the proceeds of the policy, and also seeking bad faith penalties and attorney fees. Subsequently, the Talbots moved for summary judgment on the issue of liability. The Talbots’ motion for summary judgment was granted on the issue of plaintiff’s liability under the insurance policy and denied as to liability for bad faith penalties and attorney fees. Plaintiff appeals contending that a jury issue remains as to its defense of arson.
1. The Declaratory Judgment Act is governed by the practice rules contained in the Civil Practice Act. Town of Thunderbolt v. River Crossing Apts., 189 Ga. App. 607, 608 (2), 609 (377 SE2d 12). “Since provisions of the Civil Practice Act have been held to be applicable in declaratory judgment actions, Southeastern Fidelity Fire Ins. Co. v. State Farm &c. Co., 118 Ga. App. 861 (165 SE2d 887) (1968), it would appear that the defendant in a declaratory judgment action could interpose a counterclaim against the plaintiff under CPA § 13 [OCGA § 9-11-13].” Harrison v. Speidel, 244 Ga. 643, 644, fn. 1 (261 SE2d 577).
It follows that where an insured whose rights have accrued under a policy of insurance is named as a defendant in a declaratory judgment action by an insurer whose obligations have already attached, the insured may, as an alternative to moving for a dismissal of the insurer’s declaratory judgment action (which seeks a merely advisory opinion), file a counterclaim to enforce its accrued rights. This occurred in the case sub judice. The filing of the counterclaim for damages serves to change the nature of the action. See Holcomb v. Ellis, 259 Ga. 625 (1) (385 SE2d 670).
In my view, the superior court’s grant of defendants’ motion for summary judgment as to liability under the insurance policy was not an advisory opinion. Therefore, the superior court’s judgment should be held to be a determination of the parties’ accrued rights and obligations.
2. Under the three-part test enunciated in Southern Trust Ins. Co. v. Braner, 169 Ga. App. 567, 568 (1) (314 SE2d 241), in order to establish a prima facie case of incendiarism for the purpose of deny*195ing coverage under a fire insurance policy the insurer must show arson by someone; motive by the suspect; and unexplained surrounding circumstantial evidence implicating the suspect. There is some evidence as to the first two parts of this test. However, in my view the third prong of this test, which requires some evidence linking the insured to the arson, that is, evidence that the insured either personally or through agents, has caused or procured the fire to be set, is not satisfied. “Without more, the fact that [the insured] had exclusive access to the property, as many if not most property owners do, raises no inference of incendiarism on his part.” Southern Trust Ins. Co. v. Braner, 169 Ga. App. 567, 569, supra.
When this third test is applied to the facts of the case sub judice, attention is addressed primarily to Mrs. Talbot. Uncontroverted evidence shows that at the time of the fire, Mr. Talbot was miles away at Moody Air Force Base and there is no evidence that he, either personally or through agents, caused or procured the fire to be set.
Mrs. Talbot was in the house when the fire started, but, as previously stated, this alone does not create an inference of incendiarism on her part. There is no evidence linking her to the arson. Southern Trust Ins. Co. v. Braner, 169 Ga. App. 567, 568 (1), 569, supra. Compare Pennsylvania Millers Mut. Ins. Co. v. Baker, 180 Ga. App. 504 (1) (349 SE2d 527) (insured driving away from house several minutes after fire started) and Rollins v. Great Southwest &c. Ins. Co., 162 Ga. App. 139 (1) (290 SE2d 353) (insured had only key to padlock securing house and padlock found unlocked after fire, items claimed to have been destroyed in fire shown to have been removed prior to fire).
The evidence in the case sub judice creates mere suspicions and any conclusion attributing the arson to Mrs. Talbot rather than her companions or an unknown third party discloses speculation and conjecture. “[B]efore there is, in legal contemplation, any evidence, the circumstances shown must, in some appreciable degree, tend to establish the conclusion claimed. . . . [Radcliffe v. Maddox, 45 Ga. App. 676, 681-682 (2) (165 SE 841)].” Southern R. Co. v. Ga. Kraft Co., 258 Ga. 232, 233 (367 SE2d 539). “Where a civil case rests on circumstantial evidence, the circumstances proved must tend in some proximate and reasonable degree to establish the conclusion claimed, and render less probable all inconsistent conclusions. So, where evidence is not more than a scintilla, if it is dependent entirely upon guess or speculation, it is insufficient to support a verdict. [Cits.]” Ladson Motor Co. v. Croft, 212 Ga. 275, 277 (92 SE2d 103).
Additionally, I cannot agree with the position of the majority that the third element of the test from Southern Trust Ins. Co. v. Braner, 169 Ga. App. 567, 568 (1), 569, supra, may be proven by evidence of opportunity on the part of the insured to commit an arson. *196Such a rule removes the insurer’s burden to prove the insured’s connection with the arson and invites speculation by the jury. I cannot agree that any such opportunity test is implicit in Pennsylvania Millers Mut. Ins. Co. v. Baker, 180 Ga. App. 504 (1), supra, or Smith v. Federated Mut. &c. Ins. Co., 124 Ga. App. 693 (185 SE2d 588), since in both of these cases there is circumstantial evidence implicating the insureds.
Decided December 5, 1990 Rehearing denied December 20, 1990 Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, William J. Rawls II, for appellant. Coleman, Kitchens, Wolf son & Smith, James R. Smith, Jr., B. Miles Hannan, for appellees.In my view, any reliance upon the “opportunity” test from Fortson v. Cotton States &c. Ins. Co., 168 Ga. App. 155, 156 (1), 158 (308 SE2d 382), is misplaced since this decision should be distinguished on the facts. As noted in Division 2 of Fortson, Division 1 of that decision, “goes only to the [issues of] bad faith penalties and attorney fees . . . .’’In the case sub judice, the Talbots’ claims for damages for bad faith and attorney fees remain pending following the denial of their motion for summary judgment in this regard, but these claims are not at issue on this appeal. Instead, this appeal, as in the controlling case of Southern Trust Ins. Co. v. Braner, 169 Ga. App. 567, supra, is concerned with the insureds’ claim to recover fire loss benefits under an insurance policy. The legal test to be applied to claims for bad faith penalties and attorney fees is distinguishable from the test governing claims for loss benefits under insurance policies. The insured must prove more to support a claim for bad faith penalties and attorney fees than to support a claim for benefits under the policy. Thus, a decision concerned solely with claims for bad faith penalties and attorney fees, such as Fortson, is not controlling where, as in the case sub judice, the issues presented involve only claims for loss benefits under insurance policies. Any language in Fortson, which purports to relate to claims for loss benefits under insurance policies which are not at issue in that case, should be recognized as obiter dictum, therefore not binding precedent, and disregarded in the face of binding precedent which is supplied in the case sub judice by our decision in Southern Trust Ins. Co. v. Braner, 169 Ga. App. 567, supra.
I am authorized to state that Presiding Judge Banke joins in this dissent.