Jerrell v. Classic Insurance

Blackburn, Presiding Judge,

dissenting.

I must respectfully dissent because I agree with the trial court that Jerrell has failed to produce clear and convincing evidence that the insurance companies’ actions were so egregious as to warrant an award of punitive damages.

As a prerequisite to punitive damages, OCGA § 51-12-5.1 (b) requires that Jerrell present clear and convincing evidence that the insurance companies’ actions “showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” By reversing the partial grant of summary judgment to the insurance companies, the majority must impute evidence of wilful *570misconduct despite the fact that Jerrell failed to ask that his totaled car be returned. There was no dispute that Jerrell’s car was totaled; the only dispute surrounded the worth of the car at the time of the collision. We cannot ignore the normal course of negotiations of this kind. We cannot impute a bad motive or conscious indifference on the insurance companies’ actions when it is unusual for a claimant to want a totaled car. Tony Adamson, of Williams Body Shop, deposed that this was the first time in 14 years of business that an owner was upset because a totaled car had been towed away. It is generally to everyone’s benefit to minimize storage expenses. Additionally, there is no evidence in the record of Jerrell asking for the car back. In fact, the evidence in the record indicates that it was the insurance companies who offered to deliver the car to Jerrell’s home, only to have Jerrell demand that the car not be delivered there. Almost two weeks later, Jerrell’s attorney finally informed the insurance companies where to take the car.

The present case is similar to the facts in Lamb v. State Farm &c. Ins. Co.1 Therein, Lamb sued State Farm for allegedly converting his totaled car after it was towed from the wrecker service yard where it was being stored. Although the insurance claims representative testified that Lamb had consented to the removal of his car, he refuted that he had done so. Initially, State Farm asserted that it would not return Lamb’s car until Lamb paid $193 to reimburse certain expenses. State Farm eventually returned the car to Lamb’s home. Id. at 365. The trial court directed a verdict on Lamb’s claims for punitive damages, and Lamb appealed. On appeal, this Court determined that “because Lamb failed to offer any evidence to prove egregious misconduct on the part of State Farm, a directed verdict was appropriate.” Id. at 366 (2).

Similarly, in the present case, the majority relies on the facts that the insurance companies took Jerrell’s vehicle without his permission, retained the vehicle and demanded storage fees. However, as we previously held in Lamb, such facts do not support the imposition of punitive damages. Additionally, in Lamb v. Salvage Disposal Co.2 (physical precedent only), a second law suit based upon the same facts found in Lamb v. State Farm, supra, this Court determined that where the insurance company returned the totaled car remains prior to filing an answer, there could be no damages for conversion when the damage to the car prior to the alleged conversion was in excess of the fair market value of the car. In essence, the car was a total loss before the alleged conversion, and it was still a total loss after the *571conversion. Lamb v. Salvage Disposal Co., supra at 196.

The cases cited by the majority are clearly distinguishable from the facts of this case. In Ford Motor Credit Co. v. Spicer,3 the plaintiff sought damages for conversion of his operational vehicle after the bank wrongfully repossessed it due to an error in crediting the plaintiff’s account. This Court affirmed the denial of the bank’s motion for judgment notwithstanding the verdict, finding, in part, that a jury was authorized to award punitive damages based upon evidence that the bank was aware that the plaintiff had paid all sums due immediately after the repossession but did nothing to remedy the situation. Id. at 387-388. Such a case is entirely different from an insurance company that is negotiating a claim on a totaled vehicle, which would have to be retitled by the state, prior to use. Additionally, in Keasler v. Cedar Bluff Bank,4 cited by the majority, a bank’s errors in handling its collection of a note, its failure to collect on the disability insurance provided and its maintenance of a suit against the debtor even after knowledge of its errors provided sufficient evidence for the reversal of the trial court’s order granting summary judgment to the bank on the issue of punitive damages. Again however, such facts are not remotely similar to the facts of the present case.

The facts of the present case do not support the imposition of punitive damages. See Lamb v. State Farm, supra; Lamb v. Salvage Disposal Co., supra. “Punitive damages cannot be imposed without a finding of some form of culpable conduct. Negligence, even gross negligence, is inadequate to support a punitive damage award.” Colonial Pipeline Co. v. Brown.5 Additionally, something more than the commission of an intentional tort is always required.

There must be circumstances of aggravation or outrage, such as spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton.

(Punctuation omitted.) Cullen v. Novak.6 Further, “conscious indifference to consequences relates to an intentional disregard of the rights of another, knowingly or wilfully disregarding such rights.” (Punctuation omitted.) Petrolane Gas Svc. v. Eusery.7

In the present case, there is no evidence to support Jerrell’s con*572tention that the insurance companies consciously and deliberately disregarded his interest to the extent that their conduct was wilful or wanton. As the trial court correctly determined that Jerrell had failed to present sufficient evidence warranting punitive damages, I would affirm its decision.

Decided October 16, 2000 Reconsideration denied October 31, 2000. Philip S. Cole, for appellant. Downey & Cleveland, Rodney S. Shockley, for appellees.

I am authorized to state that Presiding Judge Smith joins in this dissent.

Lamb v. State Farm &c. Ins. Co., 240 Ga. App. 363, 366 (2) (522 SE2d 573) (1999).

Lamb v. Salvage Disposal Co., 244 Ga. App. 193 (535 SE2d 258) (2000).

Ford Motor Credit Co. v. Spicer, 144 Ga. App. 383 (241 SE2d 273) (1977).

Keasler v. Cedar Bluff Bank, 162 Ga. App. 57 (290 SE2d 150) (1982).

Colonial Pipeline Co. v. Brown, 258 Ga. 115, 118 (3) (b) (365 SE2d 827) (1988).

Cullen v. Novak, 201 Ga. App. 459, 460 (2) (411 SE2d 331) (1991).

Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860, 861 (1) (389 SE2d 355) (1989).